This is the problem with the administration's kill list. They killed an American overseas because he was providing aid, comfort, and who knows what else to the enemy. The problem is, he was still an American citizen. Now, I don't like the idea of an American (if only in name) taking action against his own country any more than the next person, but the fact is that he never renounced his citizenship. So not only were the BENEFITS of citizenship still his, so were the PENALTIES for violating the legal obligations associated with that citizenship.
Our Constitution provides for dealing with treason:
Article 3 Section 3 of the US Constitution: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The CONGRESS shall have power to declare the Punishment of Treason…"
Everything you've posted on the subject of the jihadist's prosecution is predicated on the assumption that he
will be charged with treason. I seriously doubt that will ever happen. Even if it does though, can you confidently say that there are "two witnesses to the
same overt act" to testify against him on that specific charge? Is there case law available for modern interpretations of what constitutes a "witness" in that passage? As we know, passages within the Constitution are extremely malleable. "Shall not be infringed" comes immediately to mind. ObamaCare was written and defended at SCOTUS with a punitive scheme of fines for non-compliance, and the Court over-rode the government's own arguments at SCOTUS and deemed those fines a tax. Are they just as likely to say, in this case, that a camera that picked up one or both of the jihadists calling the trigger into their bombs does not qualify as a "witness?" Can a cell tower be a "witness?" Treason is a very rare charge to levy against someone. I doubt that there's much case law that doesn't include at least two humans witnessing an overt act. Seems to me the treason charge is the least likely charge to be brought against the jihadist.
Those accused of treason must be tried in OPEN COURT based on first-hand testimony of specific acts of treason (terrorism is treasonous)
That's not exactly what Article III, Section III says. It says nothing about being tried in open court, only that if a confession be tendered,
it must be tendered in open court.
And on what case law do you base your statement that "terrorism is treasonous?" Was McVeigh charged or convicted of treason? Anwar Al-Awlaki? Jose Padilla? The only one I know for positive wasn't charged with treason is Padilla, and though I'm not positive about the other two citizen-terrorists that I named, or others I'm either forgetting or just unaware of, I do know that treason is a very rare charge, and I don't think that "terrorism" in and of itself, equals being a "treasonous" act. I
know it doesn't if there aren't two witnesses to the same act to contribute to the case against a charged American citizen terrorist.
and only CONGRESS has the authority to determine the punishment for treason. It is unnecessary and unConstitutional to declare a citizen an "enemy combatant,"
Jose Padilla would argue otherwise, as would SCOTUS.
I personally don't take SCOTUS's word for constitutionality. I can read. I'm actually pretty good at reading, in fact, and if their rulings don't comport with the Constitution, I have no problem continuing to claim my belief that a given law or ruling is unconstitutional. But SCOTUS has ruled on the enemy combatant language used in prosecuting citizen-terrorists, and for all intents and purposes at this moment in time, it
is constitutional to declare a citizen one.
and neither the AG nor the president have the Constitutional authority to unilaterally decide to terminate such an individual with extreme prejudice.
This we agree unequivocally on, but you're conflating two separate issues. Declaring a citizen an enemy combatant does not automatically put them on a "kill list." The EC designation, at least in this case, is being pushed by Grahamnesty et al for the express purpose of being able to interrogate the jihadist on national security subjects, not on the details of the crimes that he would be tried for in civilian court no matter what, if anything, the expanded interrogations produce in the national security realm. As an EC, there is no theory being postulated under which he would be sent to Gitmo or be subject to a military tribunal. None of the information interrogations might produce would or could be used against him in his civilian trial. That information, if any were produced, would simply be used to stop other attack plots, update and/or add to terrorist watch-lists etc. etc. His Miranda rights protect him from being forced to incriminate himself. They don't protect him from being obligated to incriminate others if he has knowledge of other plots or whatever.
This is all an academic discussion at this point, as the jihadist has been read his Miranda rights already and charged with various offenses. But the treason provisions of the Constitution only come into play if treason is charged, and I don't think Holder or Obama are going to be predisposed to go that route. We're talking almost exclusively about statutory criminal penalties, not carved-in-stone articles within the Constitution, and if information gathered without the benefit of lawyers were never used against the accused, but it ended up exposing other terrorists and/or plots they may be working unbeknownst to investigators at present, I have no constitutional problem with it. But it's already decided, so my, your, anybody's problems are moot at this point. Just an interesting sussing out of constitutional understanding, which is a good thing in my book.
Blues
