I don’t like it because it’s a broken analogy, describing someone who has consciously waived that right. A battlefield is a place you can avoid and being a soldier is a vocation you can quit. It may not be easy - but if someone has manage to extract themselves to a situation where they are not in the way of a battle, and has quit, say by waving a white flag? Then they have their right to a trial back.
Anyway, it’s not like you can’t be charged as a criminal based on something you were planning to do. Conspiracy to commit murder. It means the police get to detain you, but they still have to prove their charges in court if they want to do anything further, because they have a right to a trial. What exactly do you think it takes to lose that?
Either of those might be a good start - either apply some part of the procedure for actually creating a situation where you’re actually defining a war zone, or some part of the procedure for a judicial trial. I mean, it’s not ideal with no defendant, but it’s less of a mockery than claiming someone can receive due process without ever holding court at all.
Again, I understand that’s what actually happened with Al-Awlaki; they didn’t argue he didn’t need due process the way you are doing, but rather that due process was satisfied by the executive meeting behind closed doors. Do you have any thoughts on that wording? Because the distinction between that and being able to execute someone without trial is too narrow for me.
