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Unconstitutional Double Jeopardy For Alleged Terrorists?

With the killing of Al-Alwaki, I’ve seen a number of different arguments justifying it as well as attempting to differentiate between foreign versus domestic executive branch action, but that has got me to think. I think the Executive Branch may be violating Double Jeopardy in treating Al Qaeda both as criminals as well as military targets:

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; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I say this because it seems like for the exact same acts – alleged membership/participation in Al Qaeda – the accused are subject to both civil as well as military penalties, which punishment from one area doesn’t prevent punishment from another area. I believe Eric Holder made the clearest Double Jeopardy statement regarding KSM where KSM would still be subject to military action if the criminal action didn’t go the way the executive branch wanted it to go:

First, he noted, Congress has already barred any Guantánamo detainees from being released inside the United States. But then, pressed again about what would happen “if one of these terrorists” in the future were found not guilty or given a short sentence, Holder agreed that the Justice Department would still retain the authority to lock them up as enemy combatants.

“I certainly think that under the regime that we are contemplating, the potential for detaining people under the laws of war, we would retain that ability,” Holder said.

“Yes,” replied Graham. “So in the Sheikh Mohammed case, we’ve never going to let him go if something happened wrong in the federal court.”…

What would happen, Cornyn asked, if a federal judge were to decide that Mohammed had been denied his constitutional rights—such as not being advised of his Miranda rights (to be represented by a lawyer)—and orders the Justice Department to let him go?

“We have taken the view that the judiciary does not have the ability [to] require us to, with people who are held overseas, to release them,” Holder said.

This is saying for the exact same alleged acts that you will be doubly subjected to both military as well as criminal treatment for the alleged offense of being an Al Qaeda terrorist.

I’ve seen any number of justifications for the military response to alleged criminal acts along with rationales that these executions and other such military acts couldn’t happen inside the US, but I am not seeing a legal justification that would prevent an execution on US soil…in fact if Al Qaeda is to be considered a military enemy, I would think there would be even more justification for an execution on US soil versus someone who is thousands of miles away from the US. A military target who has invaded the US and is behind enemy lines is far more of an imminent threat than someone who would have to cross thousands of miles of ocean to get to the US, yet the immediacy of the threat is used to justify overseas executions as well as anywhere that alleged terrorist is becomes a battlefield by virtue of them being there.

I’m afraid the executive branch if forced to choose between war or criminal would choose war, but at least that would be a choice. Right now it is the worst of both worlds where someone can be subject both criminal as well  as military.

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