This is an interesting segment on Bill Maher's show last night on a number of topics. If you missed the show, you should watch it. But there's one thing I think needs a little bit of explication. Maher, Seth McFarlane (who is a real DFH, it turns out) Salman Rushdie and Jennifer Granholm are discussing the legality of the Al Alwaki killing and Rushdie brings up the fact that "there is such a thing as treason." Yes, they all agree, treason. Maher adds that the punishment for such a crime is death and they all nod sagely as if that settles the matter.
There's just one problem. Here's the provision in the US Constitution about treason:
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, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
There wasn't a trial. Not even in absentia (which we don't do in the US.)
I realize that the official rationale for the killing isn't predicated on the legal definition of treason. It's some arcane gobblydygook about a "global battlefield" and unlawful combatants and state secrets, none of which is even remotely settled law. But it's vitally important that we not start thinking that being accused of "treason" means that the US government can unilaterally decide to kill an American citizen without any due process.
If there is one single thing the founders of this country would rise from their graves to dispute, it's that. I realize that the only thing the Americans supposedly ever cared about was having to pay taxes, but the truth is that this was at the very heart of the American revolution. The power of the crown to declare its domestic enemies treasonous and execute them had pretty much defined bloody European history for hundreds of years. Americans believed that was fundamentally wrong. And it's the only crime they explicitly wrote into the constitution for that reason.