You do state the law correctly, your confusion seems instead to be with regards to the phrase "due process."
It means literally what it says: everyone is entitled to "due" (i.e. warranted) process, not judicial process. What process is "due" in any given case? It is, on its face, a context-sensitve inquiry.
If you trace the due process clause back to its origins in Clause 39 of the Magna Carta, you'll see that it is not a guarantee of a trial in every case, but rather a protection against arbitrary action: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." The AUMF is, for better or worse, the law of the land.
People gave Eric Holder a lot of flak when he stated that the Constitution guarantees due process and not judicial process, but his comment was a totally uncontroversial statement of the law. I'm pretty sure Greenwald knows that too, since last time I checked NYU (where he got his JD) doesn't teach some bizarro version of Constitutional Law where down is up and due process always requires a trial.
Before mentioning "due process", the Fifth Amendment states:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..."
The exclusion for "cases arising in the land or naval forces" apparently applies to members of the U.S. military, who can be tried under military law (like Bradley Manning was). [1]
Furthermore, the Sixth Amendment says:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
So I don't understand how the Constitution allows the federal government the right to execute a citizen without judicial process. Any references would be sincerely appreciated.
> So I don't understand how the Constitution allows the federal government the right to execute a citizen without judicial process. Any references would be sincerely appreciated.
I think you'll be waiting a long time for rayiner to give you one.
The "time of war" clause applies to soldiers serving in the U.S. armed forces, who are subject to military law. It doesn't apply to random U.S. citizens.
That won't dissuade him. We live in strange times where people practicing cognitive dissonance want to deny others their basic rights because "terr'rists wanna blow you up!"
Judicial process is a subset of due process. You'll notice the comment I was responding to mentioned judicial process. If a US citizen takes up arms with an enemy whom the US is at war with, then the process which he is due does not extend past accurate sighting before the trigger is pulled.
Of course it's a tragedy if a citizen is killed in time of war if it turns out they were not actually engaged in combat alongside the enemy, but war is tragic in general.
And herein lies the beauty of the war on terror, drugs, internet piracy, etc. You (the gov'nt) don't have to define who the enemy are, what actually constitutes an act of combat, or how we know the war has come to an end.
Read the Patriot Act. Read the rules of engagement for taking out U.S. citizens. It would not take a stretch of Eric Holder's imagination to think that downloading the Wikileaks file constitutes an act of aggression against the U.S.
You may be right that my understanding of the due process clause is confused. It's been over a decade since I went to law school and I'm getting up in the years, so it wouldn't be completely surprising.
However, I think you miss the point of my response in context of the comment I was responding to. The point of my comment was that our government has taken a very fluid approach to the law to fit its needs versus American citizens/non-citizens. If one feels a certain comfort that the law will protect him/her in the course of some action that seems fully protected by the law today, you might be in for a rude awakening tomorrow.
