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