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October 4th, 2011
Freethought San Marcos: The killing of Anwar al-Awlaki

Freethought San Marcos: A column

If the killing of Anwar al-Awlaki (along with several other people in Yemen on September 30 by two air strikes from US 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 US 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 US 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 US citizen, born in New Mexico. As a citizen, al-Awlaki was entitled to the rights afforded by the 1st Amendment to the US 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 5th and 6th Amendments to the US 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 US 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 US 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 US 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 US policy in the Middle East. Of course, as a US citizen, he had First amendment rights to speak his mind about US policy. If anything he said could have been construed as treason, once again, he could have been indicted for such alleged treason, rather than 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 US 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 extra-judicial 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 Ghengis 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 song-writer. 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, Freethought San Marcos

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16 thoughts on “Freethought San Marcos: The killing of Anwar al-Awlaki

  1. Jumping off from Lamar’s first sentence, it seems to me that when basic issues like this divide Americans, one should seriously consider whether it is any longer feasible or desirable that one government should govern 300 million.

    Such deep-rooted, basic philosophical differences will cause much discontent and perhaps eventually something even worse so long as we are forced to call one another fellow citizens and battle over control of the same government. We are citizens of the world, of course, and share a common tongue and culture — which, one would hope, would be enough to deter physical confrontations — but we really don’t belong in the same polling stations.

    I would love to see huge numbers of people choosing to live near others who more closely share their basic political beliefs. After many years, perhaps a series of peaceful secessions could occur. Serious, national discussions of panarchism and multigovernment would be nice, but even less likely.

  2. I find it unbelievable that the US govt did not have enough evidence to formally charge him as a traitor, terrorist, or with any crime.
    He was on the govt’s radar so there must be file cabinets full of documentation on him. Did the govt not think it had a strong enough case to get an indictment? Or like Lamar said, they didn’t care if they did or not?

  3. Mel,

    Are you familiar with the 1947 partition of India and Pakistan? How do you envision dividing up a country as vast as the US? Peaceful secession seems like an oxymoron….

  4. Cori,

    I think Americans much more than 1940s Indians/Pakistanis enjoy circumstances favorable to peaceful changes of political boundaries. For example, the literacy rate in the US has for a long time been much, much higher than in India/Pakistan, and there is less of a tradition of interreligious violence in this country. I’ve read of some pretty horrific things done by Hindu and Muslim mobs in India even in recent years.

    I’ll leave the mechanics of political boundary changes to people smarter than me. There may be options that involve boundary changes to a much lesser — or no — degree than secession.

    Changes of political boundaries/affiliations may actually prevent future strife. Having two or more groups with such divergent political ideals wrestling for control over a single government while enduring worsening economic circumstances doesn’t bode well for future harmony.

    But on general principles, I and mine just don’t consent to certain laws and prevailing political practices that do great harm to us and others, and we have absolutely no hope of change. There is no person or measure on any federal ballot worth our vote.

    I don’t have a problem buying a car from someone who, say, thinks incinerating 100k+ civilians in Japan was a necessary and good thing, or who thinks the state has a right to regulate my bloodstream, but I object to being subject to laws written by whomever such a person might elect over me.

    Warmongers, statists, prohibitionists, authoritarians, socialists, theocrats, meddlers — we hate their laws and their politics, but why should we have to move overseas, or hole-up in compounds waiting for them to starve us out, or become stateless persons, in order to escape them?

  5. Hey Mel,

    Too bad this is on a forum – it’s a topic that deserves a long discussion over a beer 😉 Something’s niggling at me about what you’ve written, but I need to mull it over some. Lot’s to think about!

  6. I too could have… nay… SHOULD have quit after the first sentence, but being one who has fought to defend Lamar’s First Amendment rights, I read on.

    Whew… Methinks Lamar would be much more comfortable in perhaps Kalifornia or Cuba where he may actually be welcomed.

    I think these are appropriate:

    “The world is a dangerous place to live, not because of the people who are evil, but because of the people who don’t do anything about it.”
    – Albert Einstein

    “This is the law. The purpose of fighting is to win. There is no possible victory in defense. The sword is more important than the shield and skill is more important than either. The final weapon is the brain, all else is supplemental.” - Steinbeck

    “We sleep safely in our beds because rough men stand ready in the night to visit violence on those who would do us harm” - George Orwell

    “When the choice is between cowardice and violence, I would strongly recommend violence.” – Mohandus Ghandi

    “Somewhere out there, right now, someone is preparing for the day you both shall meet. How prepared will you be?” – unk

  7. To Grateful:

    I am not uncomfortable living in San Marcos. I am uncomfortable living in a world where people profess certain values, principles, and morality, but dishonor those by their actions.

    Here’s a quote I just saw that I think is apt:

    “No republic can long stand if a president retains the unilateral authority to kill citizens whom he deems a danger to the country. What is left is a magnificent edifice of laws and values that, to quote Shakespeare’s Macbeth, is ” ‘full of sound and fury, signifying nothing.’ ”

    Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, and a member of USA TODAY’s Board of Contributors

  8. Al-Qaeda, under Osama Bin Laden declared war on US. The declaration of war was not a gang war, but a real war to be fought with guns, bombs, knives, and acts of terrorism and sabotage. Anyone associating themselves with Al Qaeda (as Alwaki did by his OWN ADMISSION) is not only an enemy combatant, but because they are not wearing uniforms and because they are “non-state actors”, they are classified by international law as “UNLAWFUL COMBATANTS”: civilians engaging in hostilities against a sovereign power in violation of the Laws of War.

    Their true criminality lies in breaking the Laws of War. As such, they are left criminally liable for their acts of aggression (should they be brought in alive) due to their status as unlawful combatants.

    However, they are also still recognized as enemy combatants. They are just the same as any Nazi during WW2. This means that they are fair game if you’re standing there with a gun, or looking at them down the barrel of a sniper rifle.

    I am fully in support of Obama in this one. You can wring your hands and mumble about “Constitutional rights” all you want, but it won’t change the reality of the situation. Getting the Supreme Court, or any other federal court to indict Awlaki would be a waste of taxpayer money. Indict him and then what? He’s just going to stop his terrorist activities, hop a plane, get an attorney, turn himself in, and answer to charges in the US? If you believe that for a minute, I have a bridge to sell you. Osama bin-Laden had been indicted, and look how effective that was.

    Alwaki’s status as both unlawful combatant and enemy combatant means that while he may have committed criminal acts in the US, we are not obligated to have him arrested and brought to court. It’s an option, but so is simply gunning him down. Obama allowed the termination of an American citizen, true, but one that had willingly joined an organization dedicated to the death and destruction of his own country. One that had declared war on us. One that deserved what he got.

  9. @Dano, would you be supportive of allowing the President to use a drone to blow up a US citizen eating a piece of pie in his home in San Marcos Texas, as long as he was first characterized as an enemy combatant by that same President? If so, what is to stop a despot from eliminating opposition, be it political or ideological, under the rouse of a label and a drone? Where do you draw the line if not at the Constitution?

  10. Awlaki wasn’t simply “characterized as an enemy combatant by the President” and it’s disingenuous to paint it as if he was just “a US citizen eating a piece of pie in his home in San Marcos”.

    You make it sound like Obama just flipped a coin, pointed a finger, and said “bang” and nothing could be further from the truth.

    Awlaki was a very dangerous man whose every action lent credence to the conclusion drawn through the exhaustive efforts of every intelligence agency in the free world. To present the argument that we’re just picking off people we don’t like discredits all of their efforts as well as the evidence that was in plain sight for many years.

    Extremist examples and straw man arguments do little good for your cause. At some point, the henny-penny style “the sky is falling” cries just get old.

  11. And if the “common sense” argument isn’t enough to persuade you (after all, common sense hasn’t ever been a trait associated with the far left), here is a very compelling legal argument for the killing of Awkali:

    Loss of nationality, also known as expatriation, means the loss of citizenship status properly acquired, whether by birth in the United States, through birth abroad to U.S. citizen parents, or by naturalization.

    As a result of several constitutional decisions, §349(a) of the current Immigration and Nationality Act (“INA”) provides that U.S. nationality is lost only when the U.S. citizen does one of the specified acts described in INA §349, voluntarily and with the intent to give up that nationality:

    1. taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof after having attained the age of eighteen years. (that’s not it)

    2. entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serves as a commissioned or non-commissioned officer; (still not quite right, since Al Qaeda doesn’t represent a foreign state)

    3.performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship. (that could be it, though it’s iffy still)

    4. committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of Title 18, or willfully performing any act in violation of section 2385 of Title 18, or violating section 2384 of Title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction. (DING DING DING DING DING DING)

    Based on this information it would seem that it is safe to conclude that Awlaki was no longer an American citizen – which of course defeats your argument of constitutionality.

    But, even if he still *was* an American citizen has there been any precedent in American history for killing an American combatant?

    What about Lincoln ordering the Union troops to fire upon the Confederates? The Wall Street Journal points out that “Lincoln concluded the laws of war must allow the United States to treat its own citizens as enemies when they take up arms in rebellion.”

    The WSJ goes on to say: “Supreme Court opinions have upheld Lincoln’s principle. During World War II, the FBI caught eight German saboteurs trying to sneak into the U.S. and at least one of them was a citizen. On reviewing their military trial and death sentences, the Justices declared: “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences” (Ex Parte Quirin, 1942).

    “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents. A nation at war has the right to kill enemy belligerents in war.”

    So if the INS, the Supreme Court, and even President Lincoln (cue angels singing) all support the concept, not to mention every intelligence agency currently operating in our government today and the President of the United States of America, it MUST be OK, right?

  12. @Dano, I am pretty sure Awlaki was a sorry SOB. The question is what is to stop Obama from flipping a coin if we no longer interpret the Constitution to impose restraints? We are in a war without end and without borders, so what is to stop the government from targeting me or you except the government itself? Do we need institutional controls or are protections against tyrants a relic of the 20th century?

  13. @Dano, we cross-posted. Careful casting the “far left” around when you are advocating the Statist position. We deserve to know what the administration’s (not just Dano’s) claimed legal authority is because it will give us the bounds of their activities. Jack Goldsmith, a noted legal scholar, has asked for the same:

    “I have no doubt that Obama administration lawyers did a thorough and careful job of analyzing the legal issues surrounding the al-Aulaqi killing. The case for disclosing the analysis is easy. The killing of a U.S. citizen in this context is unusual and in some quarters controversial. A thorough public explanation of the legal basis for the killing (and for targeted killings generally) would allow experts in the press, the academy, and Congress to scrutinize and criticize it, and would, as Harman says, permit a much more informed public debate. Such public scrutiny is especially appropriate since, as Judge Bates’s ruling last year shows, courts are unlikely to review executive action in this context. In a real sense, legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration.”

  14. I don’t think it matters what their “claimed” legal authority is – we KNOW that there is legal authority out there. If I could find it in ten minutes of searching on the web, I’m pretty sure they could find it given months of research.

    What you’re talking about is them having to prove something to the “court of public opinion” but that’s far less important than the real courts.

    Anyone can have an “informed public debate” by doing some actual research on the topic. “We the People” should not require or expect the government to spoon-feed our information to us – nor should we blindly trust any information so delivered.

    Unfortunately, the vast majority of “We the People” appear to be too busy with other things (like catching up on the latest episode of The Kardashians) and choose to rely on sound bites and talking points from whichever side of the political fence they fancy themselves to be on….

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