In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
It's frustrating that, after reading all the other comments here and at the NY Times website, it seems like at least half of the people disagreeing with this article are doing so because they didn't read that passage.
Perhaps this discussion is tainted by the submission title: "Show us the legal case for executing a United States citizen without a trial." The hostage taker hypothetical is an example that goes against that. That person would be a citizen, not in a battlefield, guaranteed the right to a trial, executed by the government, without a trial. The article does not do a good job of distinguishing that example from Awl Alaki. Meaning I think the central argument isn't all that good, and needs to be more specific / nuanced.
Firstly, there is no mention of citizenship. Secondly, the loophole covers any land force, sea force, or militia, and the service can be in any time of war (not necessarily currently engaged in battle) or any time of public danger. There is no mention of loyalty to the U.S. as enemy or ally.
Obviously, the intent of the loophole was to address the question "How can we possibly fight a war if 23 people have to hear evidence before every musket ball flies?" But thanks to poor bounds checking, the protection against arbitrary extrajudicial executions is severely weakened.
By a malicious reading of the amendment, I could argue that, by the tenets of Islam, every Muslim is a member of the militia, and that every member is called upon to wage war upon the unfaithful, heretics, and apostates. That is, they would all be "Militia, when in actual service in time of War or public danger." They don't even need to be at war against the U.S. The loophole does not specify.
It would seem that the source code for U.S. Government should be updated, and a patch released.
http://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the...
Specifically, the US Senate unanimously wrote that the US "has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen" (that being the older term for Muslims).
That nitpick aside, your statement is still true - the loophole would be to declare that, say, the tenants of the Wahhabi branch, or the Ahmadiyya branch, of Islam are not part of the true Muslim faith as meant in the Treaty of Tripoli.
The U.S. could target a South Korean soldier at a defense conference in the U.S. South Korea is still at war with North Korea, so that's a soldier, on the job, during a war. All the requirements are met. It does not matter one little bit whether the soldier is actually a danger to the U.S. or anyone associated with the U.S. It might cause a diplomatic ruckus, but the U.S. is allowed to do it by the 5th amendment.
It's a horrible, horrible loophole.
The requirement is that they be in military or militia service during a war or public crisis. Any war. Any crisis. If you are shooting Martian invaders with a slingshot, you fall into the loophole. If you are an Indonesian soldier delivering drinking water to tsunami victims in Indonesia, you fall into the loophole. Get it?
If you say that being in the militia is a requirement of Islam (and a quick search of a Koran does not find that to be true), then it was equally true when the US signed that statement; and I have no doubt that some Muslim somewhere was involved in a public crisis even at the time it was being signed in the Senate.
But change one single iota of your premise away from specific treaty terms, or clarify that the US has the ability to declare someone to not actually be a Muslim, then you're golden.
You also need to be careful to not trounce over other treaties, like the UN Charter. That's not hard, if the last 50 years of US military interventions is any indication, but it's not so easy as only using the language of the loophole.
You are completely missing the point. This doesn't have anything to do with Muslims or Islam. It has everything to do with some psychos in the U.S. government ruining the rule of law for everybody in the entire world, because it has some tiny benefit just for them in the short term.
The 5th amendment basically says that the normal rules do not apply in a war or public safety threat. Therefore, if you, as an agent of the government, wish to operate outside the rules, you just create a war or public safety threat. That's what we call a perverse incentive.