There has been much controversy among both liberals and conservatives on the blogosphere over whether or not the Awlaki killing is constitutional or not. First, I think justice was served as in an enemy of the United States was killed and I am not going to lose any sleep over his being slain but was it constitutional for the U.S. to kill Anwar Al-Awlaki?
At one point in time I said that I was against the targeting of Awlaki but there was one caveat to my position, that I think it is perfectly legal if he was killed on the battlefield. Now, the definition of battlefield has expanded since Vietnam or is of a non-traditional nature nowadays. Ground Zero became a battlefield on 9/11. It may or may not be that any longer, that would ultimately depend on our enemy. Hopefully it isn’t. So the second question is, was Awlaki killed on a battlefield?
Fuzzy of Fuzzy Logic has expressed concerns over the constitutionality of the killing of an American citizen while Silverfiddle of Western Hero has outlined what he believes to be the legitimate constitutionality of the kill. Fuzzy believes that is dangerous for us to give unchecked authority to the President to issue death warrants on American citizens. This does trouble me. But is this really unchecked authority? Wouldn’t it have been possible for either Ron Paul or any other representative in Congress to object and pass an amendment which would have some type of checks and balances on the President’s authority to kill an American who was considered an enemy combatant? Did Congress abandon it’s responsibility or did Obama in fact have legitimate authority to kill an enemy citizen? Especially since this kill order was declared about a year ago?
I do worry about the fact that if the American people just lay down and accept the killing of an American citizen that we are indeed relinquishing our Constitutional rights and whether this could lead to the Obama administration (or any other admin) declaring any one of us U.S. citizens as terrorists.
But…. Was Awlaki really an American citizen?
Silverfiddle points out:
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.
“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.”“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;”
“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.”
“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.”
Based on this information it would seem that it is safe to conclude that Awlaki was no longer an American citizen.
But, if he still was an American citizen has there been any precedence 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.”
I tend to agree with Silverfiddle on this one but I do have mixed feelings on the constitutionality of the killing of an enemy combatant who may or may not have been an American citizen – this is very much in question today.
More Posts On This Issue
Just a Conservative Girl – Are We Going To Follow The Constitution?
Left Coast Rebel – Terrorist al-AwLaki Assumes Room Temperature
RightHandMan of Sentry Journal has also posted on this issue – Emergencies Begat Emergencies
Wes Messamore at Left Coast Rebel – Presidentially-Ordered, Summary Executions are Lawless and Tyrannical
Extremely well stated, Teresa. I myself have mixed feelings, but chose to stake out a position and defend it. The clash of opinions got rather bellicose, but it reveals the legal lacuna that overshadows the war on terrorism. Too ill-defined.
You should also add Wes Messamore’s most excellent post over at Left Coast Rebel:
http://www.leftcoastrebel.com/2011/10/conservatives-heed-presidentially.html
I do not agree with his conclusions, and said so in the comment thread, but he provides a reasoned analysis, as you have done.
Thank you for the bump!
Silverfiddle
I am glad you stated your position and defended it. You did so very well. Thanks for leading me to Wes’s post. It was a very well reasoned analysis. I will add it to my post.
Thank you for stopping by and for your comment.
I have mixed feelings about this. I can definitely get behind Silver’s well thought out justification for this act. What scares me is this a very slippery slope we’re traveling down. I’m all in for killing a terrorist and this man was indeed a terrorist. I just want to be sure this doesn’t open the door to a room we don’t want to go in. Thanks for the link.
“I’m all in for killing a terrorist and this man was indeed a terrorist. I just want to be sure this doesn’t open the door to a room we don’t want to go in.”
I am right with you in your concerns, John. The “War on Terror” surely isn’t well-defined as Silverfiddle has pointed out. Unfortunately, this might be the nature of this type of war though. There is no specifically defined battlefield like in other wars and our enemy doesn’t wear a uniform, and they target civilians, unlike in other wars. This is a whole different ballgame than in previous wars.
The Constitution clearly states that you can only be found guilty of treason on the testimony of two witnesses or a confession in open court.
In WW2, the statues you list were used on German Americans who went to fight for Germany. But they were captured and tried in a military tribunal. The point being we have a clear record of the evidence presented and the procedure followed.
I would like to see the emails and evidence against Alawlaki. I think that is key. As Jake Tapper so strongly pointed out, why can “we the people” not see the evidence? Is there something else there they don’t want us to see?
I’ll just pretend like you didn’t mention Mr. Lincoln. His reading of the Constitution killed over half a million people.
Republican Mother:
They didn’t charge him with treason. They didn’t charge him with anything. It was clear they treated him as an enemy combatant who was a legitimate military target.
As Teresa states so well, there is more than one constitutional way to look at this. A person who joins an organization we are at war with puts himself in jeopardy. This is very different that the president zapping someone sitting on park bench in New York simply because he declares them an enemy of the state.
This is what happens when we proceed down such a murky, ill-defined path. I agree with you that all the facts need to come out, but more importantly, we need some clearly defined policy.
Thank you for your reply to Republican Mother. You countered her points extremely well.
I don’t like this at all. It boils down to this, I am much more concerned about our government than I am anyone we are at war with. Lincoln thought the same thing.
And you are right to be, Trestin, which is why I am not excoriating those who disagree with me. I share the larger concerns, but I see this as a narrowly-defined event that cannot be used as a prelude to summary executions by presidential decree.
Indeed, if good Americans did not stand up and oppose this, it would only embolden government further. We benefit from this tension, and it is a tension the founders intentionally designed into our system. We The People need government to do its job, but we also must remember that it is filled with fallible human beings, and so bears constant, close scrutiny.
Trestin and Silverfiddle
It has been my position for a few years now that the Geneva Convention is inadequate in it’s application in the War on Terror and that we need a new convention which addresses and clearly defines terrorism in its form today. What do you think?
Again, Fiddle you still have not answered the real question. Why didn’t the US government go into a court and have his citizenship revoked and declared an enemy combatant? They did not find out about this guy two days before he was kiled.
We have known about him for years.
The same thing with Adam Gadan. He should be stripped of his citizenship in a court of law, not public opinion.
People are looking at this as one bad guy, instead of what was done to said bad guy means to the rest of us.
ANY of you who defend this action should have your citizendhip revoked. Any idiot who cannot clearly see the gross unconstitutionality (if not the absolute DANGER) of this action is either blind, stupid, or both. The law is CRYSTAL CLEAR. An American citizen is GRANTED DUE PROCESS if charged with a crime. Al-Awlaki WAS an ‘American Citizen.’ He should have been arrested and brought to trial. The other thing is that all we have heard so far about Al-Awlaki is what “OUR” GOVERNMENT has claimed. This is the SAME GOVERNMENT which LIED us into an illegal invasion of Iraq, an illegal occupation of Afghanistan, and illegal attacks in Pakistan, Yemen, and Libya. The government has provided NO PROOF of what it claims Al-Awlaki is responsible for. As far as we know, Al-Awlaki only engaged in RHETORIC. A simple perusal of the STONEWALLING and OBSFUCATING by the White House Spokesman when confronted with these questions by a sharp reporter is all one needs to see to get a clear picture of just how low this government has sunk. Do ANY of you see the horrible precedent set by this action? That, because of this, we are ALL at risk now!? You better be damn careful what you CHEER for, because – at this point – if someone decided YOU are a “threat,” then you can DISAPPEAR overnight, and no one – your family included – will ever know what happened to you, nor will the government be obliged to tell them.
@Just a Conservative Girl and @Pat Mason
You may find this article helpful – http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html?_r=1&emc=na
Here are the main points of the article: The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.
The memo, written last year, followed months of extensive deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.
The memo provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine.
I understand both of your concerns. This could certainly lead down a dangerous slippery slope.
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