When a criminal defendant is found guilty of murder in a death penalty trial, the jury can vote for a death sentence. Then, a judge will sentence the defendant to death. After years of appeals, the defendant is usually taken to the execution chamber by the government and killed.
Death penalty cases, like all criminal trials, involve due process, legal representation, evidence, juries, judges, and the Constitution.
However, according to U.S. Department of Justice (DOJ) lawyer Bradley Hinshelwood, there is another way to kill a U.S.citizen that bypasses those Constitutional rights.
On November 16, 2020, he argued before the U.S. Court of Appeals for the District of Columbia that the federal government has the legal authority to kill U.S. citizens at its discretion without judicial review when litigation would reveal state secrets.
Well, what are “state secrets?”
The state secrets privilege (SSP) is a privilege that allows the head of an executive department to refuse to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relations interests if disclosed.
This issue recently surfaced when two journalists accused the U.S. of wrongly labeling them as terrorists. One of the journalists alleges that the U.S. intelligence program, Skynet, put him on the U.S. kill list due to data collected from his digital devices. He claims the government subsequently tried to kill him on five separate occasions.
Judge Patricia Millett characterized the DOJ’s argument as giving the government the ability to “unilaterally decide to kill U.S. citizens,” according to coverage of the argument by Courthouse News Service. “Do you appreciate how extraordinary that proposition is?”
Hinshelwood agreed that attempts by the government to kill its own citizens are a “serious undertaking” and that district courts have the right to take a careful look at the government’s assertion of the state secrets privilege. However, he argued that if state secrets privilege is appropriately applied, courts cannot rule on the merits of the case.
Judge Millet offered an example. “What would happen if the Executive Branch put an American (on American soil) on its kill list? Would that American have any right at all to contest this designation?”
According to Hinshelwood, the only recourse would be for that person to go to the United States Congress. But courts, he argues, have no role in that hypothetical.
At the end of closing arguments, Plaintiff’s attorney, Tara Plochocki said, “Whether that’s in a parking lot in the United States or abroad in Syria, the government has claimed—for the first time ever that it has unfettered and unreviewable discretion to kill US citizens at will.
Mr. Hinshelwood’s argument is more than concerning.
There are two things that protect the American way of life; survival and Constitutional rights.
In order to survive, we must have the best military, intelligence, and a top notch national security operation. In fact, the federal government has a duty to protect our country and our citizens. We are the best in the world at this.
But, when the right to a fair and impartial trial, due process, and the many other rights that protect individuals from being harmed by the federal government are removed, human nature combined with enormous power can lead to disastrous results.
Vladimir Lenin, Pol Pot, Fidel Castro, and other heads of state throughout history have sought and obtained this power. Their power cleared the path for political killings as new administrations targeted their enemies.
I am almost certain that Mr. Hinshelwood would shudder at this thought. However, the broad definition of “state secrets” can place many Americans on a list that they should not be on.
History repeats itself. This has been proven hundreds of times.
Hopefully, history will guide the court and it will acknowledge the danger ahead.