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.

[muawiyah]

To understand the Fifth in any other way than that is to deny that the Founders knew anything about war.

That would be totally bizarre.

[Forgotten Amendments]

Yeah, he was a sympathizer for sure. But all this stuff about being an “officer” or planning the underwear bomber's (ridiculous) mission ... how do we know that?

Because some “Curveball” character told us?

Because it got tortured out of someone?

All I *know* is that he was a nut with a webcam and some nasty connections. Anything else, I have to take on faith from my government. That's not how it's supposed to work.

It must be nice to think you live in a country with a government so nice that they will make unaccountable decisions of life and death and always be just.

[Verginius Rufus]

The protections of the fifth amendment are not limited to US citizens—there is nothing in the text of the amendment about “citizens” (it says “No person”). But I haven’t examined how the courts have interpreted it.

[Verginius Rufus]

U.S. citizenship starts with the Declaration of Independence, not the ratification of the U.S. constitution. You would turn all the American patriots who died in the battles of the Revolutionary War into non-citizens. If Arnold had not been a citizen of the United States, he couldn’t have been guilty of treason against the United States—any more than Major Andre was.

[MarkL]

On the battlefield, bullets and bombs are all the due process that terrorists are entitled to — even if they are American citizens.

It is, which is why Lindh should be treated as an unlawful combatant, even though he is an American citizen.

However, the last time I checked, we don't currently have a war going on in Yemen. No troops on the ground, nobody firing at our troops. Yes, terrorists use "asymmetrical warfare," and we need to eliminate them before they hit us. But there's something especially repugnant about the US government putting an American citizen on a secret "hit list."

The constitution has a way of dealing with American citizens who have committed treason. I believe this scumbag has committed treasonous acts. But there's a procedure for dealing with treason, and it's NOT the President of the US ordering the death of that person. That's a tactic used by the old Soviet Union and its satellites, North Korea, and many other totalitarian states.

Mark

[MarkL]

Somebody please explain what the difference is between this and the Civil War? Somebody takes up arms against the US shouldn’t expect full civil rights. I don’t recall death warrants being issued for individual confederate soldiers st Antietam.

OK, let's use the Civil War as an example. Let's imagine that General Lee was visiting a non-combatant country, like Italy. So Lincoln orders the death of Lee while he's in Italy... There's a word for that... Assassination. And the last time I checked, that act is specifically against the law.

Mark

[MarkL]

Taking up arms against the USA automatically revokes citizenship.

Hence, he wasn’t a citizen when targeted and killed.

Gotcha... So Sammy and Vicky Weaver weren't actually citizens anymore, nor were those silly Branch Davidians, all of whom "took up arms against the United States." So killing them all was OK. Cool! Thanks for the explanation!

Mark

[TigersEye]

Yes, I am, but I didn’t say I would play fair did I?

[TigersEye]

- something scum like al-Awlak want to take away from us.

Here's a question for you. Do you just want to give it away?

[Cheburashka]

Any time you want to start using logic and common sense please commence.

[TigersEye]

Just out of curiosity, would the correct procedure have been to strip him of his citizenship with a due-process procedure? I assume that would be done in absentia.

That would work and so would this but 0bama didn't choose either of those legal routes.

[TigersEye]

ROTFLOL Coming from you that’s a good one.

[combat_boots]

I imagine that Al Awlaki thought his citizenry would shield him or cause this issue.

Actually, I thought he’d renounced his citizenship.

[Rockingham]

The use of force resolution passed by Congress and signed into law by President Bush after 9/11 provides that:

" . . . the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

In addition, the preamble stated that the obvious point that " . . . the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

When someone is on a foreign battlefield, or supports terrorism or terrorist organizations while outside the US, they are not under US civil jurisdiction and are a legitimate target for military action even if they are a US citizen. Hence bullets and bombs can be used, even to the point of specifically targeting a US citizen. Any US citizen who does not want to take that risk has a simple remedy: do not aid and consort with terrorists.

The problem with treason prosecutions is that there are some unsettled legal issues as to what treason is and what proof is required that would take years to resolve and could unravel a case before a jury. Prosecutors thus prefer better defined criminal laws, especially those passed after 9/11.

[TigersEye]

He left the realm of civil law when he declared war on the U.S. He was military target and was treated as such.

That is just the problem, he wasn't treated as such. If he had been there would have simply been a military operation that he got killed in.

Instead 0bama made a thing about finding some heretofore never heard of loophole for an assassination and claims he had the authority as president to follow the recommendations of a secret panel.

They aren't the same thing and now there is a precedent for presidents to assassinate citizens on the word of unnamed operatives sans due process and sans legitimate military action.

[ctdonath2]

Were the Weavers doing so as enemies of the United States of America seeking her destruction?

I think you’re confused about why the Weavers were armed.

[TigersEye]

In order to legally renounce your citizenship you have to formally file it with the State Dept. And you can't have it automatically stripped without due process either.

[TigersEye]

Were the Weavers doing so as enemies of the United States of America seeking her destruction?

All it takes now is a secret panel telling the pres. that they were. No other justification is necessary anymore.

[ilovesarah2012]

Well, it’s a little late to argue about it now.

[Texas Songwriter]

It is not difficult to imagine what obama would have said if President Bush had ordered the assination of an American citizen. Obama is not the supreme law of the land, the Constitution is the supreme law of the land. Only, obama made himself a law unto himself, executed an American citizen based on an unlawful recommendation by a constitutioally unconstituted body, of which we are told there is not written record. All we have is the word of Obama that this person needed killin'. Were others killed in the attack. Were they in need of killin'? Collateral deaths? The capriciousness of the violation of the Constitution by a man who swore to preserve, protect,and to defend that very Constituition should worry anyone who might, in the future, disagree with mr. obama.

To kill or not to kill al Aawlaki are not the only choices. There were other choices, just as there were other choices in whether or not to invade Pakistan and kill binLadin. Several dozen men went into the binladin compound, apparently with little resistence and the order to kill had been give. I wonder if binladin had been captured would we have been able to extract a lot of information we do not now have....but the order to execute was given. I wish we had killed binladen near the Kiber Pass with all of the bombing. His death is not the issue. The invasion of Pakistan and the order to assinate is the issue. Now, we have a Commander-in-chief who issues assination orders on Americans and Non-americans, based not upon due process, but a star chamber whose names we don't even know. That is not the Free Republic of our Constitution for which Americans stand. There is a better way. Theres must be a Constutional way.