Jim von der Heydt on Targeted Killing and the Jury Michael Ramsey

At PrawfsBlawg, Jim von der Heydt: The Neglected Institution.  The neglected institution is the jury and the context is drone strikes.  From the core of the argument:

... when is the executive branch legitimized in killing a person retributively?  The context, of course, [is] the use of drones in the Middle East.  

The question is clearly and directly answered in the Constitution.  Yet somehow the key word -- "jury" -- [is] not mentioned [anywhere in the  debate] ...

The Fifth Amendment provides:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ...; nor be deprived of life, liberty, or property, without due process of law."  

And the Sixth Amendment requires a jury trial once such a person is "held to answer."

So the question on targeted drone strikes is (to me) clearly answered by the Bill of Rights:  

The executive branch may legitimately harm a person retributively when two juries have held him responsible for a crime -- whether treason, conspiracy, or something else prescribed by statute.

But the comments are outstanding (including from Professors Larry Rosenthal and Orin Kerr) and push back hard.  Rosenthal:

Why must we regard drone strikes as "retributive"? Their advocates rarely if ever justify them in these terms. Instead, they are usually justified as a means of national defense. Indeed, if we are going to analogize to the Fourth Amendment, why not analogize to the rule that permits the use of deadly force against a fleeing felon reasonably believed to be dangerous (without need of a jury trial)? As I understand it, drone strikes are only used against those who are justifiably regarded as threats to national security and who cannot practicably be taken into custody.

And Kerr:

... while the Sixth Amendment provides a right to jury trial, that right is limited to "criminal prosecutions," and it seems pretty clear that targeted killing is not a criminal prosecution. And even if you did try to construe targeted killing as a criminal prosecution you'd run into a bunch of problems, among them that the Federal Rules of Criminal Procedure prohibit criminal trials in absentia. See Crosby v. United States, 506 U.S. 255 (1993).

I'd say that the issue of retribution doesn't have much to do with the question, but that the jury is an important consideration (going back to Magna Carta's "lawful judgement of his peers"); the issue is under what circumstances the Executive has power to take "life" outside ordinary "due process of law."  (My answer: not very often; clearly not for retributive purposes, but as Professor Rosenthal says, those aren't the purposes used to justify drone strikes.).