The killing of al-Awlaki is troublesome.
Recall that he
is was an American citizen. Bad guy, yes. Terrorist, yes. Deserving of the death penalty, likely. But was he killed lawfully?
The Fifth Amendment to the U.S. Constitution provides, simply and succinctly:
(No person shall) be deprived of life, liberty, or property, without due process of law; * * * *
See, e.g. http://caselaw.lp.findlaw.com/data/constitution/amendment05/ (accessed 10 Oct 2011). Also http://www.ushistory.org/documents/amendments.htm#amend05 (accessed 10 Oct 2011).
I am troubled by the predator drone shooting of al-Awlaki and have been since first hearing of it, and those who know me know that I am basically a “hawk.” But I am also an attorney and judge and in those contexts one has to conclude two things: First, that the killing of this man was pure assassination vi0lating the Fifth Amendment’s “due process” clause; and, second, that there was a better way to go about it.
The issues are simple: Was he entitled to due process and, if so, did he get it?
Yes, he was entitled. He was a citizen notwithstanding his morally and legally reprehensible actions. And no, he did not get it. No need to go deeply into that question as I suspect that no person of rational thought would think otherwise.
I ran across an article that explains the matter so eloquently, thusly:
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.
via Articles: Kinlay, Jonathan, “The Killing of al-Awlaki and the Death of the Fifth Amendment” 9 Oct 2011. American Thinker (http://www.americanthinker.com/) Web 9 Oct 2011.
The authorities, and many in the media and blogosphere, effusively justified the killing by extolling the many horrible acts in which he was, the bad characters with whom he consorted, and all the generally “bad character” evidence that had accumulated over the many years of his wretched life. The “P” word — Patriotism — was often invoked. All well and good, justified, case closed.
Except there was no case. There was no evidence adduced under any hint of a legal umbrella, much less in a court of law. There was no due process or even an attempt at it, yet there was a way to have handled this situation — American citizen gone rogue —
I believe the answer lies in the creation of a new protocol empowering the courts to strip an individual of his citizenship on clearly specified grounds, including proven or admitted involvement in the planning and execution of terrorist activities.
which the article goes on to explain in detail and is worth a full read.
We cannot ever exact punishment, capital or otherwise, simply under the belief no matter how strongly held of a person’s guilt with due process. It’s the law, and it’s the right thing to do in a civilized society. When we start justifying summary execution of an American citizen just because he is abroad and involved in very un-American activities, then each of us is less safe. We can either be — and continue to be — a nation adhering to its rule of law, or we can start down a slippery slope to tyranny.
- The Al-Awlaki (Constitutional) Assassination (twentiesfreedom.wordpress.com)
- Memo details case for lethal strike on U.S. citizen (seattletimes.nwsource.com)
- Can U.S. legally kill a citizen without due process? (openchannel.msnbc.msn.com)
- Obama Refuses to Reveal Secret Memo Authorizing Murder of US Citizen (fellowshipofminds.wordpress.com)