President Obama has authorized the capture or killing of Anwar al-Awlaki. Al-Awlaki is an American citizen, born in new Mexico of Yemeni parents. Allegedly he is a recruiter for al-Qaeda.

He may be the first American citizen placed on the targeted killing list. Although I’m not sure what difference it makes whether he is an American citizen or not. We are supposed to be a nation of law. The proper thing to do is to indict him, perhaps on treason charges, and ask the Yemeni government to arrest him and extradite him. This is the legal thing to do.

At this point he is in hiding in Yemen and neither the Yemeni government or the American government know exactly where he is. Though there are all sorts of rumors about his conduct and participation in al-Qaeda, I suspect the government wants to kill him because it does not have enough solid evidence to indict him.

The government will probably justify the killing of al-Awlaki by asserting that international law permits the killing of individuals who pose an imminent threat to a country and also it will point out that we are at war with al-Qaeda. But even if he poses an imminent threat and even if his killing would be permissible under international law it does not mean that we should kill him. We like to think of ourselves as a humane example to the rest of the world–as a nation that believes in the rule of law. Even if it is permissible under international law, it may not be permissible under out Constitution. Both the Sixth and Fourteenth Amendments require due process of law. The Fifth Amendment states in pertinent part:

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 . . .

His killing may be justified under the Fifth Amendment as being in time of war. It would appear to me, however, that the Fifth Amendment allows for the killing of members of the military by court marshal without an indictment during war but not of US citizens who are not members of the military. But the sad fact is that the Courts will never get a chance to decide whether the killing is legal or not because he will not be indicted and charged.

The old adage, “justice delayed is justice denied” has once again been proven true. Twenty years ago Erick Flores-Rivera was arrested and the government seized his new Jeep Cherokee, $1,903 in cash, and other items. All parties admit that the seizure was without proper notice and therefore illegal. Flores-Rivera plead guilty to two counts in January 1991 and was sentenced to twenty years in prison.

From 1992 to 1999 the government used the vehicle and then sold it for $6400. During this period Flores-Rivera entered into a contract with the government to make installment payments on a fine that was imposed upon sentencing.

Throughout this entire period Flores-Rivera diligently attempted to get his vehicle and his money back. In 1999 the government conceded the illegality of the seizure and the need to return the property to Flores-Rivera. But it was not until 2006 that the government requested the court to set a hearing date. But no date has yet been set. In 2006 the government said it did not know what happened to the vehicle or the car. In 2007 it reported that the car had been sold and the money placed in a forfeiture fund.

In July 2006 an attorney was appointed to represent Flores-Rivera but he was not informed of the appointment until 2008.

In November 2008 the First Circuit Court of Appeals, upon a further motion from Flores-Rivera ordered the District Court to determine the value of the seized property. The District Court ignoring the Circuit Court order and the contract to repay the fine ordered without a motion from the government that the forfeited property to be used towards paying Flores-Rivera’s fine.

Finally in 2009 the Federal Public Defender is appointed to represent Flores-Rivera.

So what does the First Circuit do when it gets the case back in 2010. Does it order immediate payment including interest and rent on the vehicle for the period that the government used the vehicle? No, while admitting that “further delay is unacceptable,” it ordered that “the district court should promptly conduct a hearing, follow the applicable statutory procedures, and otherwise provide Flores with the long-delayed process to which he is entitled.” It sounds like its back at square one and another twenty years of litigation is to follow.