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Due Process in the Killing of Al-Awlaki

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Due Process in the Killing of al-Awlaki

Throughout history, mankind has strived to create a society that is built upon various ideals. Although societal ideals are constantly at war with human ideals, the notion remains that every society ought to meet the needs of all the people living in it. In framing the U.S Constitution, our founding fathers established a form of governance that provides for human rights and civil liberties. Such phrases as life, liberty, and the pursuit of happiness have gradually become part of the American set of ideals. It is our very notion of America and what we stand for. Today, we are fighting a "war on terror." The war we are fighting is not different from the war our founding fathers fought with England, to step out from the tyranny of the King when they went to battle and defeated them. It is for the same course, defending our belief in life, freedom and justice. The devastation and horror of the 9/11 terror attack caused America to tighten its belt. Hence, the public discussion has taken a new serious tone. The purpose of this paper is to evaluate what due process was involved in the killing of a U.S-born Al-Qaida cleric, al-Awlaki.

The concept of due process is the right to be treated fairly and have a fighting chance when facing legal action. The underlying principle of the concept is that defendants shall be presumed innocent until proven guilty in a court of law. The basic elements of due process of law as laid out in the U.S. Constitution are found in the Fourth, Fifth, Six and Fourteenth Amendments. But the Fourth and Fifth Amendments will be the focus of this paper. The Fourth Amendment guarantees protection from search and seizure without probable cause and requires that notice be given in the form of a warrant. Furthermore, no property may be searched or taken without probable cause and notification, and no person may be detained without probable cause and being informed of charges against him.

The Due Process of The Fifth Amendment clause promises that nobody can have his or her life, liberty or property taken away without due process of law. There are two types of due process under the Fifth Amendment: procedural and substantive. Procedural due process is based on the concept of fundamental fairness. It means that a person must be notified of the charges and proceedings against him or her and have an adequate opportunity to respond. This is done through an indictment (or an "information" in a misdemeanor), which is a formal document detailing the charges. Additionally, throughout the trial, the judge must protect the defendant's due-process rights by ensuring the defendant understands every phase of the proceedings. Substantive due process, just as procedural due process, extends beyond the context of criminal prosecutions. For example, the right of privacy, although not explicitly stated in the Bill of Rights, is a substantive right of the people that stems from the Due Process Clause of the Fifth Amendment. In the area of criminal law, however, substantive due process means the government may not prosecute an



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