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The Al-Awlaki Murder and the Rule of Law

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There is no mention in the U.S. Constitution of a presidential power to order the summary execution of any person. In fact, that power is expressly denied to the government by the Fifth Amendment, which states: No person shall be deprived of life, liberty, or property, without due process of law.

What that means in layman’s terms is the government cannot kill you, imprison you, or take your property without first clearing some legal hurdles. Not that the Bill of Rights has really stopped the political class from engaging in human slaughter, plunder, and kidnapping through the years, but at least it has provided the people some protection.

As a bulwark for liberty, constitutions are about as strong as the paper on which they are written. The U.S. Constitution really is just a scrap of paper unless it is enforced by the people for whom it was supposedly created. Relying on government officials to enforce it and thereby restrain themselves is nave in the extreme, and it is the sure path to tyranny.

The recent extrajudicial killing of two American citizens, including radical Islamic cleric Anwar al-Awlaki, on the order of President Barack Obama, is a clear violation of the very law he is sworn to uphold; and for that he deserves to be thrown out of office, charged criminally, and put on trial. But that will not happen, because our republic has degenerated into a bellicose empire where the rule of law has given way to the rule of despicable men.

Al-Awlaki was nothing more than an Islamic propagandist who never had any command authority in any specific terrorist organization. At one time he was considered a moderate and was actually recruited by the Pentagon to provide advice on countering Muslim extremism. He was apparently gradually radicalized by the U.S. governments use of lies to justify its invasions and occupations of Muslim countries.

The other U.S. citizen killed, Samir Khan, had earned the ire of the U.S. government by being the Internet jihadi. According to the New York Times he moved to Yemen and became the editor of Inspire, al-Qaeda in the Arabian Peninsulas online English-language magazine. Khan, however, had reportedly never been put on the U.S. governments hit list, and thus his death in the al-Awlaki hit must be written off as collateral damage, or as the Obama administration might say, a twofer.

Al-Awlakis crime was saying critical things about the U.S. government and exhorting others to take up arms against the U.S. military, which has brutally occupied wide swaths of foreign real-estate owned by Muslims. But voicing opposition to policies and advocating armed opposition to the State is protected free speech, and it is certainly not terrorism. As Glenn Greenwald, a journalist and former constitutional litigator explains,

The government is absolutely barred by the Free Speech clause from punishing people even for advocating violence. That has been true since the Supreme Courts unanimous 1969 decision in Brandenburg v. Ohio, which overturned the criminal conviction of a Ku Klux Klan leader who had publicly threatened violence against political officials in a speech.

The Supreme Court ruled that except where such advocacy is directed to inciting or producing imminent lawless action such as inciting a mob to burn down a house or hiring a hit man the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force.

The Obama administration never put forth any evidence to back up its later assertion that al-Awlaki had an operational role in planning terrorist attacks against U.S. citizens. If the U.S. government had any evidence to support that charge, they were duty bound to get a bill of indictment and take their chances in court.

Moreover, since U.S. intelligence officials were obviously aware of al-Awlaki’s location, they should have used that information to apprehend him rather than murder him. The Yemeni government is a client state of the United States, and its leader, Ali Abdullah Saleh, a reliable thug. There is no doubt that he would have cooperated in any effort to track al-Awlaki down and extradite him. But that would not have allowed Obama to fabricate yet another presidential power.

The obscenely circular argument used by the Obama administration to justify al-Awlaki’s murder was on full display in a dialogue between White House spokesman Jay Carney and ABC News Jake Tapper:

TAPPER: Do you not see at all does the administration not see at all how a president asserting that he has the right to kill an American citizen without due process and that hes not going to even explain why he thinks he has that right is troublesome to some people?

CARNEY: I wasn’t aware of any of those things that you said actually happening. And again, I’m not going to address the circumstances of al-Awlaki’s death. I think its again, it is an important fact that this terrorist, who was actively plotting had plotted in the past and was actively plotting to attack Americans and American interests is dead. But I’m not going to, from any angle, discuss the circumstances of his death.

TAPPER: Do you know that the Center for Constitutional Rights and the ACLU tried to get permission to represent al-Awlaki on that his father had asked them to do that, but they needed to get permission from the Treasury Department so that they could challenge his being on this targeted killing list. And the administration, the Obama administration, refused to let them represent to not even he couldn’t even have the ACLU representing him.

CARNEY: Well, I think I would send those questions, or take those questions, to Treasury or Justice. I don’t I don’t have anything on that for you.

TAPPER: What do you think constitutional law professor Barack Obama would think of this?

CARNEY: I think he spoke about it today.

The White House has stated that they obtained authoritative legal opinions from their own lawyers determining that the presidents lethal actions were permitted by the Constitution and the Authorization for the Use of Military Force (AUMF) passed by Congress in 2001. But this only goes to show that if you give a team of White House lawyers enough time, they will come up with a superficially compelling case to justify any abuse of executive power.

The AUMF authorized military action against only those involved in the 9/11 attacks, and al-Awlaki had no part in those crimes. Moreover, the presidents powers as commander in chief do not supersede the Bill of Rights. Whatever augmented powers the president may exercise during wartime do not obtain, because the U.S. Congress has not declared a state of war.

The judiciary has played its traditional role in this case as a rubber stamp for the executive branch’s usurpations. Last December, Judge John D. Bates of the district court in Washington, D.C., dismissed a lawsuit contesting President Obama’s targeted killing policy, which was initiated by ACLU and Center for Constitutional Rights on behalf of al-Awlaki’s father.

Judge Bates ruled that the plaintiff did not have legal standing to challenge the targeting of his son, and also concluded that there are circumstances in which the Executives unilateral decision to kill a U.S. citizen overseas is constitutionally committed to the political branches and judicially unreviewable.

Jameel Jaffer, Deputy Legal Director of the ACLU, had this to say regarding Judge Bates’s ruling:

If the courts ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation. It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty.

Perhaps it is foolish to believe that the law can be relied upon to curb the exercise of power. After all, the law is crafted by the powerful to serve their interests, and they have no compunction whatsoever in ignoring it when it represents an obstacle to their ambition. As H.L. Mencken wrote,

It is, perhaps, a fact provocative of sour mirth that the Bill of Rights was designed trustfully to prohibit forever two of the favorite crimes of all known governments: the seizure of private property without adequate compensation and the invasion of the citizens liberty without justifiable cause. It is a fact provocative of mirth yet more sour that the execution of these prohibitions was put into the hands of courts, which is to say, into the hands of lawyers, which is to say, into the hands of men specifically educated to discover legal excuses for dishonest, dishonorable and anti-social acts.

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    Tim Kelly is a columnist and policy advisor at The Future of Freedom Foundation in Fairfax, Virginia, a correspondent for Radio America’s Special Investigator, and a political cartoonist.