The Killing of al-Awlaki and the Death of the Fifth Amendment

American Thinker ^ | 10/08/2011 | Jonathan Kinlay

[SeekAndFind]

The Fifth Amendment to the United States Constitution is unequivocal: no American shall "be deprived of life, liberty, or property, without due process of law." No amount of ducking and diving will evade the inescapable fact that, for the first time, U.S. military officials in an aggressive overreach of constitutional authority deliberately targeted an American citizen for killing. And no amount of legalistic wordplay will alter the reality that al-Awlaki was denied due process.

(No, Mr Gingrich, the signing of a death warrant by an American President does not constitute "due process," except perhaps in North Korea or Iran. Our Founding Fathers taught us better than that.)

Al-Awlaki was an acknowledged "bad guy" who incited, trained, and prepared others to commit heinous terrorist crimes designed to inflict death and injury upon his fellow countrymen. He was, assuredly, our self-confessed enemy, and he fully deserved to die -- but not without due process. We don't sanction the use of government hit squads to assassinate U.S. citizens who are responsible for the most unspeakable crimes. We don't do it even when they admit to those crimes. Instead we invoke the moral authority of Constitution to insist on their right to due process, even in cases where the accused is unwilling to offer any defense. Only when due process has been exhausted and the accused is found guilty do we have the moral authority to invoke the ultimate punishment.

The reason for this important Constitutional safeguard is self-evident. In the words of Jameel Jaffer, the deputy legal director of the ACLU:

The government's power to use lethal force against its own citizens should be strictly limited to circumstances in which the threat of life is concrete and specific, and also imminent.

[Polybius]

Very poor analogy. Benedict Arnold was never a U.S. citizen. The raid on Richmond took place in the winter of 1780-81, which was seven years before the U.S. constitution was ratified. He was a British subject and later a resident of Canada until the day he died.

My analogy was a universal principle that has held true throughout every war in human History:

"Enemy combatants, in direct physical combat or in command and control, are legitimate targets of opportunity regardless of citizenship, past or present."

Did the Senatorial Legions of Pompey meet the Legions of Caesar in war in order to "arrest Roman citizens"?

But, if you insist on being so concrete as to insist upon only examples in the United States after the U.S. Constitution was ratified, fine.

Did the Army of the Potomac meet the Army of Northern Virginia at Gettysburg in war to "arrest American citizens"?

Do you really believe that Robert E. Lee, or any Confederate Colonel, Major, Captain, Lieutenant, Sergeant or Corporal was not a legitimate target of opportunity of any Union sniper that was within range of them?

Does the 14th Amendment not specifically state that "The validity of the public debt of the United States ... for services in suppressing insurrection or rebellion, shall not be questioned."?

Were those "services" not the intentional killing, when and where the opportunity arose, of the 94,000 American citizens directly killed by Union forces during "The Great Rebellion" (as was the popular term at the time) who were waging war against the United States?

It cannot be claimed that the wording of the Constitution referred to foreign citizens of a sovereign nation called the "Confederate States of America" since, by definition, a foreign nation cannot be in "insurrection or rebellion" against the United States.

The U.S. Constitution clearly accepts the fact that 94,000 "American citizens" were deliberately and legally killed by the U.S. Government when they waged war against the United States on behalf of the Confederacy. It is ludicrous to claim that an American citizen in 2011, waging war against the United States, in a command and control capability, as an officer al Qaeda, somehow has more constitutional protection when waging war against the U.S. than an American citizen in 1863 had while waging war against the United States, in a command and control capability, as an officer of the Confederate States Army.

Even aside from the lack of any due process in this case, what exactly were the charges against this guy?

What were the "charges" against, say, Major John Pelham, Confederate States Army?

WAR WAS BEING ACTIVELY WAGED IN A COMMAND AND CONTROL CAPACITY.

If you do not believe me, go to Post 69 and listen to al-Awlaki yourself.

He is in direct contact with Muslims in the U.S. military instructing them to kill their fellow soldiers ..... And one of them does it.

Through videos meant to be distributed to Muslims in the U.S., he is instructing them to kill U.S. civilians including YOU.

That is called "Command and Control" and it qualifies as an act of war. In war, it makes you as legitimate a target of opportunity as any Confederate Lieutenant that was unfortunate enough to ride within range of any Union sniper.

==================

Anwar al-Awlaki May 2010 Interview Video

This video of an interview with Anwar al-Awlaki was released on May 23, 2010 by Al-Malahem Media, a reported propaganda unit of al-Qaeda in the Arabian Peninsula. It was posted to YouTube, but was quickly removed due to “terms of use” violations. According to the Associated Press, the American-born al-Awlaki tells his followers to “kill U.S. civillians” . It is presented here for research purposes.

"Nidal Hasan is a student of mine, and I am proud of this. I am proud that there are people like Nidal Hasan among my students. What he did was a heroic act, a wonderful operation. I ask Allah to make him steadfast, to protect him, and to free him. I support what he did, and I call upon anyone who calls himself a Muslim, and serves in the US army, to follow in the footsteps of Nidal Hasan."

"Interviewer: Do you support such operations, even though they target what the media calls “innocent civilians”?

Anwar Al-Awlaki: Yes.

With regard to the issue of “civilians,” this term has become prevalent these days, but I prefer to use the terms employed by our jurisprudents. They classify people as either combatants or non-combatants. A combatant is someone who bears arms – even if this is a woman. Non-combatants are people who do not take part in the war. The American people in it

[ctdonath2]

Are you equating the Weavers with terrorists?

[TigersEye]

I think bin Laden was fair game but I have pointed to other remarks on this thread that explain legal ways al-Alawki could have been killed so I don't even see this as an issue of whether he needed killing or not. IMO he did but my personal priority list would have put about 10,000 ragheads ahead of him.

My only issue is the rule of law. 0bama could have used at least two legal justifications to kill him but instead he created an entirely new presidential power to do it based on unnamed sources of witness, an unnamed panel's recommendation and no documentation of any of it. With that level of unaccountability no one can know if there were any witnesses to the criminal acts of the perp or if any panel of sources, experts or whatever they're supposed to be actually exists.

[TigersEye]

No. I’m explaining how this new power of the secret panel and the authority to order the assassination of a citizen works.

[Texas Songwriter]

Disposal of the Constitution of the United States is not the remedy to dealing with bad guys. There will be no stopping an executive who controls all of the guns and military, if he decides to reorder the country. If his star chamber decides a one world government is in our best interest, then what now stops him. He is not compelled in his decision-making by the Constitution, only his ambitions...and those ambitions, unshackled, could destroy the country. This decision is much, much larger than the killing of al-Awalki. This decision is the exposure of a man who will stop at nothing to achieve an end, and is more than willing to destroy the Constitution in our name. Its for the children. It is for the American people. It is not a good thing to have a Jack Bower wannabe in the oval office. This hubris, without the chains of virtue and the constitution is a very dangerous thing.

[TigersEye]

100% agreement. The precedent has been set.

[ctdonath2]

No, you’re feeding your own wanton paranoia with vague inanities.

The man killed was not at the time a US citizen, for reasons clearly stated on his passport. There is no question he was an avowed enemy of the USA, and nobody in their right mind would expect him to wander into the US embassy to file the appropriate paperwork terminating his citizenship.

The Weavers were law abiding citizens who wanted to be left the hell alone and who were armed against illegal assault, regardless of the office of the attackers.

If you conflate the two, you are a very confused person.

[TigersEye]

The man killed was not at the time a US citizen, for reasons clearly stated on his passport.

The statutes that cover that are not vague inanities they are the law.

...and nobody in their right mind would expect him to wander into the US embassy to file the appropriate paperwork terminating his citizenship.

That's the law.

[TigersEye]

I didn’t conflate the Weavers and al-Alawki. Your reading comprehension is below grade school level if you think so.

[AndrewC]

al-Awlaki had at least 10 months to dispute the targeting. He didn't

NASSER AL-AULAQI, on his own behalf
and as next friend of Anwar Al-Aulaqi,
Plaintiff,
v.
BARACK H. OBAMA, in his official
capacity as President of the United States;
ROBERT M. GATES, in his official
capacity as Secretary of Defense; and
LEON E. PANETTA, in his official
capacity as Director of the Central
Intelligence Agency,
      Defendants.

The point being that Awlaki knew he was targeted and could have hired a lawyer for himself to dispute the government's action. He failed to do so in a timely manner. Justice served.(although I donot consider the controversy as involving crime. It is war. The military is not to enforce law. It is to provide for the common defense.)

[Alberta's Child]

The problem with the evidence you posted is that al-Alwaki acknowledges responsibility for being Nidal Hasan's teacher or leader, and yet Nidal Hasan is not being treated as a "combatant" or "non-combatant" of any kind. In fact, the U.S. government has gone to great lengths to avoid calling his attack on fellow U.S. soldiers "terrorism" or anything of that sort.

In fact, a formal count of treason is conspicuously absent from the charges that have been filed against him. Hmmm.

Why the difference between the treatment of these two, especially in light of the well-documented communications between Hasan and al-Alwaki about violence against U.S. citizens?

[Alberta's Child]

The problem with that logic is that it is predicated on the assumption that all of the "American patriots" who fought for independence from England were unified in their desire to become part of an as-yet-to-exist United States of America.

That is absolutely untrue, as evidenced by the fact that the former colonies did not all agree on what form of government they would adopt after the Revolution. Vermont was a perfect case in point. It was conspicuously absent among the original Thirteen States because the "American patriots" from Vermont who fought against the British at Ticonderoga and at Quebec -- Ethan Allen and the Green Mountain Boys -- had their own ideas about how they wanted to organize after the British were defeated. The Vermont Republic was established as an independent state in 1777 even before the American Revolution was over, and not long after the Declaration of Independence was signed. Interestingly (and not coincidentally), nobody from Vermont ever signed the Declaration of Independence.

[rmlew]

So what are the charges, what exactly did he say to bring a drone up his wazoo?
I've actually seen some of Al-Awlaki's videos and read translated articles from Inspire, Al-Qaeda's magazine. But that is evidence. As for charges, we did not charge Al-Awlaki anymore than we did his old boss Bin Laden.

Where are the official complaints? Oh, yes, I forgot, its all secret.
If you are calling for a more formal, more open process of stripping citizenship and targetting ersatz Americans at war with America, I agree with you. If you believe that "Americans" at war with the US operating on foreign battlefields should be given some immunity, I question your patriotism.

[Alberta's Child]

Your comparisons are backwards, when you think about it. In revolutions like we had in the Colonies and with the Confederacy, the “revolutionaries” are the ones who are actually committing treason, from an objective legal standpoint. It’s hard to make the case that Benedict Arnold ever committed treason against the United States when there was no formal law — or even a legal system — under which he could be charged.

[notdownwidems]

uh, al-Awlaki had nothing to do with 9/11 and an authorization for a use of force is NOT a declaration of war, nor does it satisfy the constitutional requirement of such.

[Verginius Rufus]

Arnold lived for several years after the war in New Brunswick (and fathered an illegitimate son there) but he spent his last years in England and died there in 1801. The Wikipedia article on him has a photo of his oath of allegiance to the United States of America, sworn in 1778.

The Declaration of Independence uses the phrase "the united States of America," and the Articles of Confeeration, completed in 1777 (but not ratified by all 13 states until 1781), says that the "style" of this confederacy shall be "the United States of America."

Vermont is an exceptional case because it was territory claimed by two colonies, New Hampshire and New York, and the actual settlers there managed to make themselves independent of both. The delegates to the Second Continental Congress were all from officially recognized colonies--so naturally there was no one there from Vermont, so no one from Vermont signed the Declaration.

[abigkahuna]

I dunno, did congress declare war on Yemen? I just think, that IF, he was an American citizen, he should have been tried in Absentia first--it's not like we just encountered him on the battlefield. We had this "secret" finding for year to use against him.

Here's the "rub", perhaps we can all agree that he needed to be taken out. But, that's this time, what about next time when things are even murkier?

Granted, he was a Tokyo-Rose at the very least but his actions point to worse, but Al-Awlaki was considered an "American citizen" and at least deserved a military tribunal declaring him "x". Bin Laden was not an American citizen and did not afford any constitutional or UCMJ rights to the least.

No, all of this stinks to high heaven. We can cheer that a 'terrorist" was killed, but what about when "Big Sis" says god fearing folks are terrorists and now we too, are on the "secret" list. The precedent has been sent, and it ain't a good one. At the very least, a military Tribunal in Absentia before drones up the wazoo. THAT would at least follow some sort of LAW.

We can disagree buddy, but I never insinuated that immunity be given to anyone. So go knock down that strawman somewhere else. And it would not be wise to question how "pure" my patriotism is, baby.

[DPMD]

Sorry. I didn’t realize we were arguing. I formerly had an interest in immigration law and was passing on what was learned.