When Can the Government Kill Americans?

Thursday, October 13th, 2011
Baton Rouge, Louisiana

CAN THE GOVERNMENT LEGALLY KILL YOU
WITHOUT A TRIAL?

By any measure, Anwar Awlaki was a bad apple. In speeches, and over the internet, he preached hate and violence against his country, the United States. He was a well know terrorist who, for years, has been accused of scheming to kill Americans. He wasn’t indicted or convicted in a court of law, but the justice department gave the green light to have him assassinated. The U.S. has a long history assassinating foreign nationals. But Awlaki was an American citizen. So was his killing legal? And if so, are we headed down a new slippery slope that goes way beyond the law enforcement practices of a free nation?

Awlaki was born in Las Cruces, New Mexico, but was living in Yemen at the time of his killing. From press reports, we can assume this was the first instance when a U.S. president has given the OK for the killing of an American citizen abroad. The justice department supposedly prepared a secret memorandum justifying the assassination, and put Awlaki, on a “targeted list.” Another American citizen, Samir Khan, who was not on the list, was also killed. Collateral damage?
There is a whole host of constitutional issues that such an assassination raises. As an American citizen, was Awlaki entitled to the Fifth Amendment guarantee of not depriving an accused of life, “without due process of law?” And there are a number of federal statutes prohibiting the assassination of an American abroad. Any proper analysis goes to both sides of the argument.

Constitutional scholar Justin Raimondo writes that America has now given up the moral high ground. “In targeting and killing an American citizen, without going to the bother of indicting and convicting him in a court of law, we have stripped all Americans of what little protection they have left against the depredations of a tyrannical government. The authorities can read our emails, listen to our phone calls, and rifle through our garbage – all in the name of our endless “war on terrorism” – and now they can kill us, too, without even a nod to legality. Nor do they have to reveal the reasons for our summary execution: it’s all “secret,” because, after all, they have to protect their “sources and methods.” Their methods, though, are coming to resemble those of the Gestapo and the KGB, as opposed to the law enforcement practices of a free people.”

But his strong assertions are dismissed by well known foreign policy analyst Walter Russell Mead, writing in The American Interest. Mead says the whole complicated issue is reduced to one basic argument: “Al-Awlaki and his buds are at war with the people of the United States and that in war, people not only die: it is sometimes your duty to kill them. That the Al-Qaeda groupies are levying war against the United States without benefit of a government does not make them less legitimate targets for missiles, bullets and any other instruments of execution we may have lying around: the irresponsibility, the contempt for all legal norms, the chaotic and anarchic nature of the danger they pose and the sheer wickedness of waging private war make them even more legitimate targets with even fewer rights than combatants fighting under legal governments that observe the laws of war.”

I am inclined to side with Mead in this one particular case. The evidence, at least that slim amount available to the public, paints Awlaki as an embattled warrior at war with the United States on a foreign battlefield. But there are some questions that should be answered by the justice department.

First of all, what was the process used to justify this killing of an American citizen? Apparently, there was a secret memo by two justice department lawyers prepared to specifically justify the assassination of Awlaki. But what was the basis of the memo? What are the legal principles on which it was based? Did the president personally authorize the killing? Press reports point only to the two justice department lawyers. Is this enough to justify the killing of an American citizen? And what are the checks and balances?

If the justice department wants to put a wiretap on your home, they are supposed to obtain judicial approval. Should not a process at least equally protective be applied to the taking of the life of a U. S. citizen?

I was in the nation’s capitol last week participating in a seminar on ideas for the country’s future, and listened to Supreme Court Justice Anton Scalia talk about the uniqueness of America. He said most people feel the bill of rights makes us special. But what really sets our democratic system apart, Scalia noted, are this three branches of government that are unique and that serve as a check and balance on any abuse of an individual’s rights and freedoms. So the question is, should the justice department have the power to make a unilateral decision to kill an American citizen? Should another branch, in this case the judiciary, have to sign off on such a life and death decision? Should not the President himself be involved?

Secondly, what precedent has the U.S. set by using drones to kill Americans on foreign soil? The attack didn’t take place in Iraq or Afghanistan where we are in continuing warfare. It was launched and exploded in Yemen, a friendly country. So where are lines drawn? If a Mexican citizen is a murderer wanted in Mexico, but hiding out in Arizona, is the Mexican military justified in sending a drone missile over the border and into U.S. territory to kill the accused? This is not all that farfetched. Just last December, a drone was launched by Mexican police, and ended up crashing in an El Paso neighborhood.

As The New York Times recently reported, “American defense analysts count more than 50 countries that have built or bought unmanned aerial vehicles, or U.A.V.’s, and the number is rising every month. Most are designed for surveillance, but as the United States has found, adding missiles or bombs is hardly a technical challenge.” Again, what is the process? We have set precedents that other countries will point to in the use of drones for what they will argue is in their own defense.

In the case of Awlaki, maybe there was justification to take him out. But when government takes a life, even in times of war, there should be rules of engagement. There should be a process under which any attack, particularly on an American citizen, should be spelled out. It was all too secret. Americans need and deserve a better explanation.

*****

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.” Lord Action

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers throughout the South and on websites worldwide. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com.