Anwar al-Awlaki and the Bill of Rights

The killing of Anwar al-Awlaki raises some troubling questions. Specifically, the President is claiming the authority to assassinate American citizens, based solely on his order, in certain circumstances. There are significant constitutional issues involved here, and it’s telling that the President didn’t even resort to the ‘tame’ FISA courts for warrants or approval, he simply acted with naked power, and has even refused to address the issues raised (see the video linked in my co-blogger’s post on this very same topic).

Let’s first establish a few things. Regulars here, and those who know me, are quite aware that I do not oppose the use of force when personal or national security is in question, nor do I reject the initiation of force (for often the mere threat that I would do so deters the bad guys from acting). Let’s also establish that I feel that targeted killing of enemy leaders (military or civilian) in time of war is also acceptable (see, for example, Operation Vengeance, the American action taken to kill Admiral Yamamoto Isoruku during WWII). That said, let’s examine the circumstances here:

1. We are not at war with Al Qa’eda. Despite repeated claims to the contrary (‘War on Terror’). We cannot be ‘at war’ with an organization, only a country (‘nation state’).
2. Anwar al-Awlaki is an American Citizen
3. Anwar al-Awlaki is accused of planning, conspiring to commit and committing terrorist acts
4. The action was carried out by the Executive Branch with, with no judicial involvement
5. Per the Executive Branch, nothing more than a Presidential Finding/Executive Order was necessary to conduct this operation

Those are the facts we know at this point. I’m assuming that there was some kind of Congressional oversight in the matter (likely invoking the special national security rules so that only the 4 leaders of the Intelligence Committee were notified of the action). Assuming the facts in evidence, we now must look to the limitations placed on the government and the rights of American citizens.

Firstly, let me say that I believe that terrorism is a criminal act, not an act of war. Al Qa’eda is not a government nor a country, but a criminal gang akin to the mafia. As such, criminal law applies to Al Qa’eda just as it applies to the mafia. I’ll note that I’m not addressing the status of members of Al Qa’eda who are not American citizens—that is a far different discussion. Foreign nationals are covered by different rules (mostly established by treaties). American citizens are covered by the Constitution which has some clear requirements.

Reading the Fifth and Sixth Amendments, we can rule out a few things right away: al Awlaki was not a member of the Armed Forces nor of the militia, so that exception does not apply. Bad guys have rights, too. Protecting their rights protects all of our rights. Since no other exclusions are listed, the US Government was required by the Constitution to seek an indictment before a Grand Jury. Per the aforementioned video (a press conference) this was not done. Since this is the only way to ‘hold’ someone (i.e. detain and arrest and bring before a court) for a capital crime (i.e. one that leads to the death penalty), the government had no way to try him. They also had no arrest warrant. And Mr. al-Awlaki was not permitted a speedy trial, or any other such guarantees of the Bill of Rights. This was unilateral action by the President, with no apparent oversight. As I keep saying—Quis custodiet ipsos custodes?

It’s instructive that the Executive effectively did something Congress is expressly forbidden (Article I, Section 9) to do—pass a bill of attainder. The purpose of this clause was to ensure separation of powers, and to ensure that Congress could not bypass the judiciary and pass a bill that punished someone without trial. But this is exactly what the President did. He issued an order to do something that is expressly forbidden to the Congress (and by implication the Executive since they are to execute the laws). In other words, the President violated the Constitution.

The President had no Constitutional authority to carry out the action. If the government can, by decree, declare someone to be outside the protection of the laws, then none of us are safe. All it takes is a Presidential declaration to end-run the Constitution. Without Constitutional authority, what he did was engage in a conspiracy to murder an American citizen and a conspiracy to deprive that citizen of due process of law. Those are both impeachable offenses, and offenses for which he ought to be removed from office and the indicted and given a fair, public trial. Something he denied to Mr. al-Awlaki.

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