An assault on the Constitution:
The killing of Anwar al-Awlaki
It is hard to see that we have made much progress beyond the world of Genghis Khan nine centuries ago.
By Lamar W. Hankins / The Rag Blog / October 4, 2011
If the killing of Anwar al-Awlaki (along with several other people in Yemen on September 30 by two air strikes from U.S. Predator drones) does not at least trouble you, there is probably no reason to read this essay.
I am searching for a rational explanation for al-Awlaki’s killing that will satisfy the values with which I grew up — values based on America’s laudable conduct dealing with Nazi war criminals after World War II and with the U.S. Constitution that I learned about in law school.
I’ve read the glib assurance from Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, that he believes the killings were legal. His opinion is not comforting. The opinions of law professors and legal advisers are purchased, either literally or figuratively, as easily as are the opinions of a barber.
The Constitution seems to mean whatever any Humpty Dumpty legal scholar wants it to mean. (“When I use a word, it means just what I choose it to mean — neither more nor less.” — Humpty Dumpty in Through the Looking Glass.)
What we do know with reasonable certainty is that Obama Administration officials have confirmed that the Yemeni-American Islamic cleric Anwar al-Awlaki was killed by the U.S. government. The administration claims that al-Awlaki was a terrorist, though no evidence has been presented to prove that claim.
We do know that he was a U.S. citizen, born in New Mexico. As a citizen, al-Awlaki was entitled to the rights afforded by the First Amendment to the U.S. Constitution, which protects his right to abhorrent opinions. His apparent delight in the Ft. Hood killings two years ago expressed in email correspondence with the Major accused of those slayings makes al-Awlaki a terrorist sympathizer at the least. But that does not negate his citizenship, nor his rights to the protections of the Fifth and Sixth Amendments to the U.S. Constitution.
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, 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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The exception found in the Fifth Amendment as quoted might be used to justify the killing of al-Awlaki if we assume that he was chargeable with a capital or infamous crime, but without such a formal charge, the exception applies only “in a time of War.”
We are not at war in Yemen, where al-Awlaki was living and working before he was killed. We have been presented with no evidence that al-Awlaki was creating a public danger, but if he were, he was not engaged in “actual service” in a military so far as anyone has claimed. And the U.S. government has not made any claim that his killing falls within an exception found in the Fifth Amendment.
In fact, the Administration seems to think it owes no explanation at all.
What our government was permitted to do under our system was to have al-Awlaki indicted for any alleged crimes he might have committed. The government chose not to do so. Had it done so, al-Awlaki, as a U.S. citizen, would have been entitled to the protections of the Sixth Amendment, which provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
An effort was made by al-Awlaki’s father to prevent al-Awlaki’s killing after it became known a short while ago that al-Awlaki was on a U.S. government list of terrorists targeted to be killed or captured. This past summer, a federal court, based on procedural grounds, would not allow the father’s case to go forward.
In our post-9/11 world, not even the courts will protect citizens from being summarily executed by the government. Previously, the authority to kill American citizens has been restricted to clearly defined geographical boundaries of military conflict at a time when the U.S. was at war with a clearly identified enemy. This was not the case with al-Awlaki.
Glenn Greenwald, who is a constitutional law attorney and legal writer for several publications, had this to say about the killing of al-Awlaki:
Anwar al-Awlaki is a U.S. citizen. He was ordered assassinated by the President of the United States without presenting any evidence of any kind as to his guilt, without attempting to indict him in any way or comply with any of the requirements of the Constitution that say that you can’t deprive someone of life without due process of law.
The president ordered him killed wherever he was found, including far away from a battlefield, no matter what it was he was doing at the time. And if you’re somebody who believes that the president of the United States has the power to order your fellow citizens murdered, assassinated, killed without even a shred of due process, without having to have charged him with a crime or indict him and prove in a court he’s actually guilty, then you’re really declaring yourself to be as pure of an authoritarian as it gets.
To emphasize the extraordinary action of our government in killing al-Awlaki, Greenwald continued:
Remember that there was great controversy that George Bush asserted the power simply to detain American citizens without due process or simply to eavesdrop on their conversations without warrants. Here you have something much more severe. Not eavesdropping on American citizens, not detaining them without due process, but killing them without due process, and yet many Democrats and progressives, because it’s President Obama doing it, have no problem with it and are even in favor of it.
To say that the President has the right to kill citizens without due process is really to take the Constitution and to tear it up into as many little pieces as you can and then burn it and step on it.
Greenwald put the whole matter in even more stark relief when he said,
The problem is that American political culture is such that evidence doesn’t make a difference. Trials and due process are very pre-9/11. What we believe is that if the president stands up and says someone is a terrorist, that’s all we need to know; (he is) therefore guilty because the leader has accused him of being that, and as long as the Aides then go and leak to the media, which they have done, that he played a significant operational role and was a big Al Qaeda leader, we won’t need to see evidence. We’ll just stand up and blindly click our heels and accept it’s true, and then cheer the fact he’s been murdered based on unproven claims.
It is well-known that al-Awlaki was a fierce critic of U.S. policy in the Middle East. Of course, as a U.S. citizen, he had First amendment rights to speak his mind about U.S. policy. If anything he said could have been construed as treason, once again, he could have been indicted for such alleged treason, rather than being summarily executed.
But after the recent spectacles of Americans (all apparently Republicans) cheering the death of a medically uninsured man who “chose” not to have health insurance or could not afford it, cheering the execution of people who may have been innocent of any capital crime, and booing a gay serviceman who spoke out about an end to the “don’t ask, don’t tell” policy in the military, I don’t expect many Americans of either political party to be concerned about the extra-judicial killing of al-Awlaki and his unnamed companions.
Since 9/11, Americans have largely acquiesced in the curtailment of their constitutional rights with minimal push-back against the government. But with this action, President Obama has doubled down on the corruption of American values destroyed by the Bush-Cheney band of rogues.
The only just remedy for what Barack Obama has done is for impeachment charges to be introduced in the House of Representatives. If ever there was a high crime, killing an American citizen without even a veneer of due process is such an offense warranting impeachment.
That may be the only way for the American people to learn the whole truth about this reprehensible action of a U.S. president. If evidence of a stain on a dress was grounds for impeachment in 1998, evidence of a stain on the Constitution should be even more compelling grounds in 2011.
But impeachment will not be discussed because the House of Representatives is controlled by the Republicans once again and the Republican leadership, as much as or more than the Democratic leadership, favors an American government that can engage in such extrajudicial murder. It shows that we are strong and beyond the control of any law or treaty. It also appeals to the macho mentality of American culture.
Our constitutional system is failing, and that failure started long before 9/11, as we engaged in illegal and covert military actions wherever we pleased. Perhaps it has failed already to the point that it cannot be renewed or rejuvenated. If our civilization rests on such dishonoring of our constitutional foundation, the sooner we can be done with it and start anew, the better the world will be for it. It is hard to see that we have made much progress beyond the world of Genghis Khan nine centuries ago.
My greatest regret as I near the end of my life is that my generation and those that have followed have left such a dismal future for my granddaughter and the other children of our youngest generation. I fear that these children will live on a far worse “Desolation Row” than the one imagined by the songwriter.
When Americans refuse to stand up for what is right, and just, and moral, the decay of American civilization will produce a stench worse than any other cesspool known to humankind. Already it is not good to breathe too deeply.
[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]
There’s a much clearer link between the babblings of Limbaugh, O’Reilly, Dobbs, Palin et al… and the killings at Tennessee Valley Unitarian Universalist, the murder of Brisena Flores and her father Raul, and the shooting spree in Tucson.
Major Hasan’s comrades at Ft Hood admitted that they frequently harrassed him about being Muslim. They tried to “white”wash their actions and as far as the American press is concerned, succeeded.
They said they had complained to their and his superiors about his refusal to back down from his Islam. Yet his superiors had always given him good to excellent performance ratings and were about to promote him to Lieutenant Colonel.
The whole thing has the distinct aroma of last weeks sushi.
Add in that we’ve been lied to on every other aspect of the global conquest for-profit war. Repeatedly.
Re: Brother Jonah’s comment of Major Hasan “about to be promoted to Lt. Col”.. Anyone who has spend any time in/with the military knows that “Promotions to the highest level of incompetency” are not only common, but regular, as well.. (just look at some of the JCoS– it’s not the “best soldier”, it’s the best ass-kisser who gets promoted!).
With respect to killing Al-Awaky,
It was noted that “we are not at war with Yeman”.. In my opinion, we are not “at war” with any nation.. we are, in fact, at war with a ideology.. A radical, anti-American, pro-radical Islamic ideology that professes death to all American (Infidels) as well as the overthrow of the Government of the United States. In keeping with the oath that BOTH the Military and the President take of “protecting” our country from “enemies within and without”, the proper “solution” for any one or any group professing said overthrow is immediate dispatch, just like one would put down a rabid skunk! Without thought or hesitation. There is no “lets talk about it” or “We’ll have a vote on it”.. You do that and YOU are dead! The killing of ANY Al Quada operative is, in no uncertain terms, “Justice Served”.. And I am about as anti-war as anyone can get! (I am very “Pro Self-Defense”!) But I HATED seeing American flag-draped coffins being off-loaded from troop-transports worse at Dover AFB, as they still are today! My generation (and many of you) lost too many friends to an asinine and needless “war” in southeast Asia.. Is losing the friends of our children or grand-children in the mid-east any different?? Hell No! Dead is Dead.. Support Our Troops.. BRING THEM HOME!!
If using Drones to kill the enemy saves American lives, then train EVERY U.S. Soldier how to use them and flood the skies with “1000 Plane (Drone) Raids” like was done in Europe AND over Japan during WWII with B-17’s, B-24’s and B-29’s!
Patton said it best when he said he didn’t want his troops dying for our country, he wanted them to kill the enemy “so (that) son-of-a-bitch can die for HIS country!”
That, my friends, is how “wars” are won and not prolonged for twenty years!!!
Peace.
Not only does it not trouble me, Mr. Hankins, but if I were to wake up tomorrow and find that EVERY American supporter of those insane, homicidal, religious fanatical prayer rug head bumpers had been shot dead I would have a bottle of expensive champagne with my breakfast. Killing homicidal muslims, who feverently believe that murdering you or me is a blessed event that would make God rejoice, is never a bad thing. Anymore than pouring arsenic into a nest of plague germ carrying rats would be.
Actually, Lamar, there was a litigation where he could have tried his case if he wished in a manner where the government would have been at a greater disadvantage than if they prosecuted him for treason. His father filed a lawsuit to get him removed from the hit list, and it was dismissed for lack of standing. The holy warrior his ownself would have had standing if he seriously wanted to make the claim that all of his actions were protected by the First Amendment. I’m not sure what else he could claim.
There’s a big debate in the legal community about whether the law of war or the criminal law applies to jihadis. I say neither. It’s the law of piracy–violence by non-state actors. It’s an old body of law but pretty complete in terms of the issues raised.
One of my students wrote an article arguing that the US should issue Letters of Marque against some of the modern pirates. Anyway, it’s clear that the actions at issue are subject to universal jurisdiction, that every government has the duty to render them up upon demand and, failing that, it is not an act of war to violate another nation’s territory to either seize or kill them (although payment would have to be made for any collateral damage).
The perps themselves argue that the law of war applies, very much to their advantage, because they could only be tried for war crimes and they could only be detained while hostilities continue. Not such a bad result when your stated objective is mass murder of non-combatants, es verdad?
I think the guy you are representing posthumously would be highly offended by your attempt to drag a warrior into the criminal justice system and in reply to my argument that the law of piracy applies he would say that’s the establishment characterization of a revolutionary hero.
There is a point of view holding that some poor fucker washing dishing at the Windows on the World Restaurant was a tool of the capitalist beast and so deserved what he got on 9-11. I don’t hold that point of view.
Some people making your argument are asking what keeps the government from sending drones after garden variety felons. I’m glad you don’t go there because–DUH!–it’s fairly obvious that if the government can locate a garden variety felon it can capture him. It can also kill him if he attempts to escape and presents a danger if he succeeds, a rule that most commonly plays out only in the case of violent felonies, never property crimes.
I’m willing to butcher the Fourth or Fifth Amendments to chase terrorists. I think USA-PATRIOT is an abomination. That said, everything that happened to this scumbag, as well as the terrorist currently known as Fish Food, were actions both legal and moral regardless of which nation undertook to clean out the world’s trash.
I don’t know if I made a really serious typo or somebody is playing cute, but it should be plain in context that I wrote I’m NOT willing to butcher the Fourth or Fifth Amendments to chase terrorists. It’s not necessary, so I don’t take exigency to be part of the discussion. Kind of like most of the “violations” in the Dirty Harry movies were ginned up nonsense.
Anyway, citizenship is no bar to either the prosecution or the killing of a pirate (terrorist) and never has been and should not be.
Great article, Lamar!
Thank you for being a sane voice at an insane time!
Response to Steve Russell:
I thank you for your comments about viewing terrorism as piracy. While I claim no expertise about the law related to piracy, I do find some problems in applying it to terrorism. In the case of 9/11, the terrorists crossed no international borders, but were (for the most part) living in the US for varying lengths of time. Treating their behavior as criminal makes sense to me.
If terrorism committed across international boundaries is considered piracy, why wouldn’t the conduct of the US in attacking terrorists across those same international borders also qualify as piracy?
We typically kill many innocents with drone attacks. The assault on the bin Laden compound included looting the compound. How do we distinguish such acts from the piracy we would seek to redress?
Terrorism presents many problems of definition and much confusion with the application of what we call international law. I’m not sure that any countries are actively seeking a legal framework in which to address terrorism.
What the US has relied on to address terrorism is its ability to do whatever it pleases with few, if any, restrictions. I term this behavior lawlessness in the absence of international agreements that permit the sort military violence we have undertaken since 9/11.
I welcome dialogue aimed at creating an ordered system to address these problems. I don’t find wars, drone attacks, bombing, and other military responses a satisfactory way to find an ordered, internationally-respected and acceptable solution to terrorism. Treating it as piracy doesn’t seem to me to address all of the questions raised by terrorism, but it may help move us toward an international solution, which is far better than our unilateral responses.