A Drone Strike on the Constitution

by , October 13, 2011

When President Obama authorized the assassination of Anwar al-Awlaki, there was much rejoicing. A terrorist was gone, al-Qaeda was dealt a major blow, and vital links between jihadists and the West were broken. In addition to Awlaki, three other men were killed, including Samir Khan, publisher of a Muslim magazine.

But more died on that day than two suspected terrorists. Awlaki and Khan were both American citizens and, according to the 14th Amendment, are therefore to be afforded the “privileges” and “immunities of citizens of the United States.” Among those privileges or immunities:

No person shall be held to answer for a a capital, or otherwise infamous crime, unless a presentment or indictment of a Grand Jury … nor shall [any person] be deprived of life, liberty, or property, without due process of law. (5th Amendment)

The 6th Amendment goes on to promise:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

The argument has been made by many that Awlaki was an “enemy combatant,” thus, because we are at war, his rights as a citizen should be ignored. Others have further claimed that, by Awlaki’s own words and supposed actions (no evidence has been released, just supposition), he forfeited his citizenship.

But in what war was Awlaki an enemy combatant? The “War on Terror” is an undeclared war, with Congress only granting authority for the military to pursue those involved in the attacks of 9/11. In fact, the U.S. has not had a single declared war since World War II. President Obama authorized Awlaki’s assassination, but only Congress has the authority “to declare war … and make Rules concerning Captures on Land and Water” (Article I, Section 8 of the Constitution).

Citizenship cannot not be dismissed because of suspected crimes or words. In fact, it is citizenship in particular that keeps a person accountable to the rule of law. The 14th Amendment also states that being a citizen means being “subject to the jurisdiction” of the United States.

The idea that the government can authorize the revocation of someone’s rights because of words or suspected deeds, sets a frightening precedent — particularly when such a revocation leads to the assassination of the person without due process.

Following Awlaki’s death, it was discovered that the Justice Department authorized the assassination — well, actually, according to The Washington Post, two lawyers for the Justice Department authorized it: David Barron and Martin Lederman. They claimed that it would be an act of self-defense and that Awlaki should be treated as a combatant, not a citizen.

So, with approval in hand, the CIA added Awlaki to the “capture or kill” list. Why, then, did Obama skip the “capture” part? Well, it is believed it was “because he [Awlaki] was in the wilds of Yemen and could not be captured.” Awlaki’s location could be pinpointed with enough accuracy to authorize a drone attack, but not with enough accuracy to capture him?

This falls far short of what is required by the Constitution. Even for the sake of argument, grant that both Anwar al-Awlaki and Samir Khan were guilty of treason against their country. What then? Article III, Section 3 reads:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason….

If these men were guilty, even of treason, the Constitution addresses how they are to be dealt with — charged, arrested, informed of charges, tried in open court, and sentenced by Congress.

It seems that, along with Awlaki, the Constitution (Articles I and III) and the Bill of Rights (5th, 6th, and 14th Amendments) may have died as well.

Unfortunately, that is not all. During the Oct. 11 edition of Fox and Friends, there was a short segment addressing an additional contention surrounding Awlaki’s death. The newscast claimed that some are now clamoring for the closing of the mosque that Awlaki attended, calling it a “breeding ground for terror.”

A vocal minority spoke out against Awlaki’s assassination as a violation of the rule of law and the Constitution … a depressingly small minority. Some were called “alarmists” and their argument called a fallacy.

Yet, quickly on the heels of the assassinations, we find more rights being questioned. If the 5th, 6th, and 14th Amendments can be trampled underfoot, why shouldn’t the 1st Amendment be next?

Read more by Dr. Brian Phillips