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The Obama Administration Is Setting a Dangerous Precedent about Due Process

The Obama Administration Is Setting a Dangerous Precedent about Due Process

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The essence of due process, as Harvard Law professor Noah Feldman recently argued at an Intelligence Squared debate, is that '€œthe government would not kill its own citizens without a trial.'€ That derived from the English Magna Carta of 1215, and the Framers of the U.S. Constitution had such a history in mind when, in the Fifth Amendment, they wrote that no one may '€œbe deprived of life, liberty, or property, without due process of law.'€

So this seems like an easy issue: The Constitution is clear that due process is required before the federal government takes a citizen'€™s life. But in many cases, that would fly in the face of common sense.

Professor Alan Dershowitz pointed out in the same debate that a bank robber firing at police as he flees is not entitled to a trial before police can shoot back at him. This exception is widened in the case of war, which is why the laws of war have never required a prior hearing before incapacitating an enemy combatant that is on the battlefield.