Further Assassination of the Constitution

When President Obama authorized the assassination of Anwar al-Awlaki, there was much rejoicing.  A terrorist was gone, Al Qaeda dealt a major blow, vital links between jihadists and the West were broken.  In addition to Awlaki, three other men were killed, including Samir Khan, publisher of a Muslim magazine.

More died on that day, however, than two suspected terrorists.  Awlaki and Khan were both American citizens and, according to the 14th Amendment are, therefore to be afforded the “privileges” and “immunities of citizens of the United States” and cannot be deprived of “life, liberty, or property, without due process of law.”

Among those privileges or rights: “No person shall be held to answer for a a capital, or otherwise infamous crime, unless a presentment or indictment of a Grand Jury…nor shall (any person) be deprived of life, liberty, or property, without due process of law” (5th Amendment).

The 6th Amendment goes on to promise:

“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…to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

The argument has been made by many that Awlaki was an “enemy combatant” and, because we are at war, his rights as a citizen should be ignored.  Others have further claimed that, by Awlaki’s own words and supposed actions (no evidence has been released, just supposition), he forfeited his citizenship.

But, in what war was Awlaki an enemy combatant?  The “War on Terror” is an undeclared war, with Congress only granting authority for the military to pursue those involved in the attacks of 9/11.  In fact, the U.S. has not had a single declared war since World War II.  President Obama authorized Awlaki’s assassination, but only Congress has the authority “to declare war…and make Rules concerning Captures on Land and Water” (Article I, section 8 of the Constitution).

Citizenship cannot be dismissed because of suspected crimes or words.  In fact, it is citizenship in particular that keeps a person accountable to the rule of law.  The 14th Amendment also states that being a citizen means being “subject to the jurisdiction” of the United States.

Not only that; but the idea that the government can authorize the revocation of someone’s rights because of words or suspected deeds, sets a frightening precedent – particularly when such a revocation leads to the assassination of the person without due process.

Following Awlaki’s death, it was discovered that the Justice Department (DOJ) authorized the assassination – well, actually, two lawyers for the Justice Department authorized it – David Barron and Martin Lederman, according to the Washington Post.  The DOJ attorneys claimed that it would be an act of self-defense and that he should be treated as a combatant not a citizen.

So, with approval in hand, the CIA added Awlaki to the “capture or kill” list.  Why then, did Obama skip the “capture” part?  Well, it is believed it was “because he was in the wilds of Yemen and could not be captured.”  Awlaki’s location could be pinpointed with enough accuracy to authorize a drone attack, but not with enough accuracy to capture him?

This falls far short of what is required by the Constitution.  Even for the sake of argument, grant that both Anwar al-Awlaki and Samir Khan were guilty of treason against their country.  What then?  Article III, section 3 reads:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.  The Congress shall have Power to declare the Punishment of Treason…”

If these men were guilty, even of treason, the Constitution addresses how they are to be dealt with – charged, arrested, informed of charges, tried in open court, and sentenced by Congress.

It seems that, after Awlaki’s death, the Constitution (Articles I and III) and the Bill of Rights (5th, 6th, and 14th Amendments) may have died as well.

Unfortunately, that is not all.  During the October 11th edition of “Fox and Friends” there was a short segment addressing an additional contention surrounding Awlaki’s death.  The newscast claims that some are now clamoring for the closing of the mosque that Awlaki attended, calling it a “breeding ground for terror.”

A vocal minority spoke out against Awlaki’s assassination as a violation of the rule of law and Constitution…a depressingly small minority.  Some were called “alarmists” and their argument called a fallacy.

Yet, quickly on the heels of the assassinations, we find more rights being questioned.  If the 5th, 6th, and 14th Amendments can be trampled under foot, why shouldn’t the 1st Amendment be next?


3 thoughts on “Further Assassination of the Constitution

  1. Great article Brian. Yes we “alarmists” are told that ignoring the US constitution is appropriate as we are now in a “different world”. I’m not sure what is different about it except for frightening technologies like drones, and perhaps it is the convenience of these technologies that has lured us into this ultimate pragmatism where we willingly part with our principles. There have always been groups wanting to do us harm, although many of them have been and are due to our meddling and choosing winners in their sovereign countries.

  2. So would you have american soldiers be inserted into enemy territory, attempt to capture Awlaki ( soldiers will be killed in the process..), inform him of his “alleged” crimes and wrong-doings, transport him back to the united states, try him, then kill him??

    As for the evidence or lack there of, emails have been released that corresponded between they shooter at Ft Hood as well as the “underwear bomber”

    I agree with you that we should strictly uphold the constitution as well as the bill of rights, but I don’t think that these laws should be extended to defected terrorists that are plotting and killing their once fellow countrymen. I would much rather send a missile up his rear and let God judge and try him, than put our service men and women’s lives in danger so that they can capture a known terrorist.

  3. Ethan, to answer your questions – yes, but with some clarification. Yemen is not enemy territory and they gave us authorization to be there. Our soldiers would be in very little danger given that there were drones and other air support available overhead and his location was exactly pinpointed.

    Additionally, the troops sent in to such missions are trained for such missions. I don’t want our troops in harm’s way either, but the ones sent in to do those things intentionally signed up for it.

    As for the procedural issues, Awlaki could simply have been apprehended and charged once he was extradited back to the U.S. But, yes, he must be charged and tried, even if he committed the most heinous acts of treason – and that is all according to the Constitution.

    Regarding the evidence, what you have noted is all evidence offered once the man has no ability to defend himself. This is a trial after execution.

    But, let me say, once again, that I am not necessarily defending the man or his actions (whatever he did). I am, however, defending his rights according to the Constitution because if we don’t then anyone could be next. Remember that, not so long ago, even the Tea Party activists were called terrorists.

    Awlaki was not a “known terrorist”, Ethan. He was an accused terrorist and if the case against him was so open and shut, they should have at least tried to apprehend him.

    Let me point out two other details – first of all, they are already considering closing the mosque in which he worshiped. So, once the 5th, 6th, and 14th Amendments are disregarded, the 1st may not be far behind. Second, when the authorities discovered the alleged plot to assassinate the Saudi ambassador, they arrested the suspects and gave them due process. So, our government is already selectively applying the rule of law and doing so blatantly.

    What do we lose by obeying the rule of law – by following the Constitution? Nothing. What do we lose by disregarding it when we really want someone dead? Everything.

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