Conservatives Heed! Presidentially-Ordered, Summary Executions are Lawless and Tyrannical

Fellow Patriots,

After another contributor to Left Coast Rebel published a post about Mr. Obama's recent targeted killing of a U.S. citizen, Anwar al-Awlaki-- a post which I must say I found disconcertingly uncritical and unconservative in its praise of Obama's action, defending the president with unreflective and inaccurate legal reasoning-- there followed a very heated debate between those who shared my concerns and those who supported President Obama.

In order to present a well-reasoned alternative view that answers all the arguments of Mr. Obama's supporters in this matter, I am publishing below the entire text of my most recent article. A big thank you in advance to the Left Coast Rebel for providing this website as a forum of information and discussion about these issues at so critical a time in our nation's history!

Without further ado:

Conservatives Heed! Presidentially-Ordered, Summary Executions are Lawless and Tyrannical

This weekend, something truly momentous in U.S. history occurred: the President of the United States signed a death warrant ordering the targeted killing of a United States citizen without trial, a grave violation of the United States Constitution and a chilling precedent of unrestrained executive power.

As Judge Andrew Napolitano remarked of the summary execution: the power to order a citizen's death without a trial by jury is not the power of a president, it is the power of a king.

Unfortunately, many well-meaning, but confused conservatives have cheered President Obama's action, defended it, and even dismissed thoughtful critics as crazy, out-of-touch, or "weak on national security."

More puzzlingly, some of the most ardent critics of President Bush's unprecedented assumption of police powers to spy on American citizens without warrants or accountability, have been silent or even supportive in the face of Obama's usurpation of the power to kill American citizens without any kind of due process or accountability.

Let's examine the arguments for and against the ordered killing of suspected terrorist and U.S. citizen Anwar al-Awlaki to see if we can make any sense of the matter.

The Fifth Amendment

The Fifth Amendment to the Constitution of the United States says: "No person shall be... deprived of life, liberty, or property, without due process of law." That's the law in this country, the "supreme law of the land," in fact, and the president is not above it.

In America, when people commit crimes-- even violent crimes like serial murder-- they are brought to justice in an orderly legal proceeding with a public trial by a jury of their peers. They have the right to answer charges against them and argue against those charges. This system was not set up to protect criminals, but to protect the innocent.

The Constitution says that no person shall be deprived of life without due process of law. Because of this, the president has no legal power to simply order the death of a U.S. citizen who he suspects of terrorism. Such an action is unconstitutional and illegal.

Objection: "But Anwar al-Awlaki was a terrorist! He was committing treason in open warfare against the United States, so he forfeits his right to a trial by jury."

This objection is actually false.

Article III, Section 3 of the U.S. Constitution says: "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."

Even the part of the Constitution that deals specifically with treason and open warfare against the United States by a U.S. citizen takes for granted that the citizen has a right to a trial and must be legally convicted of treason, adding that such a conviction requires the testimony of two witnesses to the same overt act of treason. The president cannot simply order a person's execution without a trial. That is the law in the United States.

If they support anything, this nation's conservatives should support law and order, specifically holding those who administer law to the highest standard of all in observing it and carrying it out in an orderly, legal fashion. Even in the pursuit of dangerous terrorists and criminals, one cannot support lawlessness and disorder while claiming the mantle of conservatism.

Objection: "The Constitution isn't a suicide pact. These terrorists are dangerous mass murderers and sworn enemies of the United States. We can't just treat them like common criminals: they're enemy combatants in open warfare."

As noted above, even citizens who levy war against the United States, as outlined in Article III, Section 3, must be convicted and brought to justice in accordance with a legal process required by the Constitution, which involves making specific charges against the accused and giving them the opportunity to answer those charges in a court of law.

These protections aren't there for the guilty; they are there for the innocent. Making special exceptions and rescinding these constitutional guarantees in the case of people who the president says he is certain are guilty (while declining to even provide reasons for his certainty or make public a set of criteria for ordering targeted killings of U.S. citizens-- calling that information classified) is not only illegal, it gives the president a sweeping power to target anybody for killing without trial, including the innocent.

This is a precedent that should worry conservatives specifically, who have been characterized as terrorists themselves multiple times in the past two years by Obama's Administration, Congressional Democrats, and mainstream media publications.

In 2009, two different Department of Homeland Security memos circulated to warn state police departments of the rising threat of terrorism from so-called right-wing extremists who are too verbal in their opposition to the Obama Administration or the income tax, too active in their support for certain Constitutional Amendments like the Second or the Tenth, or even those who have pro-life bumper stickers on their vehicles.

Critics of the Obama Administration's summary execution aren't necessarily sticking up for Anwar al-Awlaki. In an interview on Fox News, Ron Paul even called the killing "a net positive." Critics like Ron Paul are sticking up for you. They are simply and correctly opposing the idea that the president has the legitimate authority to accuse an American citizen of being a terrorist, sign his death warrant (someone please find that term in Article II of the Constitution), and have him killed.

That power is nowhere to be found in the Constitution. In fact, it is specifically prohibited. Once the president is allowed to usurp that power and exercise it, even if he may wield it for good, there is no guarantee that a future president might not use it for evil. By then, it will be nearly impossible to stop him because his actions will be vested with the aura of the national security interest.

The president's reasons for summary execution without trial will be hidden away, inscrutable, unimpeachable. He will not have to give reasons. He will not have to justify his actions. He will not be held to account for them. There can be no such thing in a free society as an unchecked, unaccountable power to kill. A free nation is a nation of laws, not a playground for politicians and bureaucrats above the law. Today they kill terrorists. Now that they have this power, what will stop them tomorrow from killing innocent Americans?

Objection: "You're saying that if a terrorist is mowing down people with a machine gun, police can't just drop him with a bullet. They have to let him finish his business and then go up and read him his rights."

This is absolutely false. There is a difference between responding to a criminal or terrorist act in progress and apprehending a criminal or terrorist suspect. Even private individuals have the legal and moral right to defend themselves or others with deadly force from a violent crime in progress, and American conservatives correctly recognize and jealously defend that right.

At the moment a person suffers a violent assault from a criminal, that person or vigilant bystanders may act in self-defense by responding in kind with violent force because in that moment, there is no possible appeal to a higher legal authority. The aggressor and his victim might as well be in a jungle without the benefit of a society and its system of law, and the victim is fighting for his bare survival against the aggressor's assault.

Likewise, an intervening police officer may justifiably shoot a criminal gunman he finds in the very act of taking innocent lives on a spree. But if the gunman were to get away, that police officer may not go out on orders from the mayor to find and summarily execute the first person that he nabs as the likely suspect. There would be lawlessness in this country if police departments were empowered to round up and shoot people they suspected of very dangerous and violent criminal behavior without having to even explain or justify their actions.

That's why the "Really Bad People" argument fails to justify Obama's summary killing of Anwar al-Awlaki. In this country there are lots of "really bad people" like serial killers, arsonists, and bank robbers, but they are not simply killed without trial by an executive authority. They are brought to the judiciary to be tried by a jury of their peers. Again, this is not a courtesy to the criminals, but a diligent and orderly process for sorting out the innocent from the guilty, as well as a safeguard against unrestrained tyranny.

In Conclusion

The issue here is not whether or not Anwar al-Awlaki is a really dangerous man. The issue here is not whether or not he deserves to be killed. The issue is not whether or not America is safer or better off without him.

The issue is whether or not we are willing to turn our president into a really dangerous man. The issue is whether or not our president has the legal power to decide in secret who deserves to be killed. The issue is whether or not America is safer or better off without the freedoms and protections our Founding Fathers-- in all their wisdom and experience-- have enshrined in our Constitution.

The issue is precisely this: Does the United States president have the legal power to simply accuse an American of terrorism and order him killed? Legally, morally, historically: the answer is resoundingly, No.

And if we do not want to lose forever the lessons in the experience of our Founding Fathers, we had better do well to remember that for them, the most important aspect of national security is to make sure our nation is secure against the oppressions, abuses, and overreaches of its own government.




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Wesley Messamore, 24, is an independent journalist and political activist who believes in the Founding Father's vision of a free, enlightened, and moral America. He also blogs at his own libertarian website.

20 comments:

  1. Wesley, I generally agree with your case, and further believe that a full airing of the issues is still needed. The legal pretext for the killing is classified, for example.

    However, you give too short a shrift to those opposing your line of argument. We are targeting enemy combatants every day in the war on terror. This was authorized when the Congress gave too broad a power to President Bush to prosecute that war in 2001. As a legal matter, do we have the right to use targeted attacks to kill enemy combatants on foreign soil? If you argue no, then a great many U.S. military operations, going back to killing Yamamoto in WWII would be deemed illegal because we targeted an individual. The Supreme Court has ruled that U.S. citizenship does not protect an individual from the consequences of belligerent status when they engage in wartime operations against the United States. The real question is did the United States have credible evidence that al-Awlaki was engaging in ongoing military planning of operations against the United States? The other question would be whether or not he was killed in military operations? If the CIA operated the drone that killed him, we are in very tricky territory, legally.

    Thanks for contributing to the debate. Please see my post on this subject.

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  2. I am with you. This was a dangerous precedent to set. I am not happy about this at all.

    We should be at the capitol building demanding that they pass laws that are constitutiional that deal with American citizens that beome terrorists. It is shameful that ten years has passed and this has not been done yet.

    People are looking at this as only one bad guy instead of the bigger picture. Sad.

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  3. Thank you for taking the time to write this article. I agree that this is an unacceptable use of power. While it is just to target enemy combatants, it is not just to specifically target American citizens. This overlap in reason is a neccessary first step to developing a new lethal power.

    Let me be clear. I am not anti-war. I have friends that many would categorize as empiralists, although I am not quite that. This is not an immoral act, in my eyes. However, the public execution of citizens without trial is a direct threat our right to life.

    Remember that the Fresh Prince of Bill Ayers, who marched with the new black panthers, has been indoctrinated by people who planned to execute 25 million Americans who could not be "reeducated." I urge you to realize that this is an out of context problem, you cannot view this through the typical American perspective.

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  4. Wes, Well said my friend. As I tip my hat and smile.

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  5. I've struggled to understand this one. The underwear bomber gets a civilian trial but al-Awlaki gets blown to bits? How does that make sense?

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  6. "The issue is precisely this: Does the United States president have the legal power to simply accuse an American of terrorism and order him killed? Legally, morally, historically: the answer is resoundingly, No."

    That's not even remotely true. It's stupid on a multitude of levels. First off, military engagements abroad don't have a goddam thing to do with a president "accusing" someone of something. It was a military engagement against a an agent of a foreign military carried out by the US military. Nothing in the constitution addresses these actions because warfare isn't governed by the constitution.

    Some of you armchair legal scholars really ought pull your heads out of your asses and read a book. This is a matter of settled law. There is no precedent there.

    The stupidity I see on display about this issue is depressing. You people show no ability to think rationally. Most of your arguments are either just plain retarded or rooted in outright, easily disprovable lies.

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  8. How about one of you geniuses explain to everyone what the rules of evidence are in warfare?

    I can't wait.

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  9. Chuck,
    What makes you so sure that the killing of al-Awlaki is the result of "warfare?"
    1. Do you know for sure that U.S. military personnel carried out this attack and not the CIA? The administration did not definitively say.
    2. At what point is the targeted killing no longer warfare, but something else? The drone strike in Yemen, a sovereign nation with whom we are not at war could have killed anyone. The Law of Armed Conflict requires that military operations be planned to minimize civilian casualties and damage to civilian property consistent with effective operations. To your second comment, to comply with treaty requires not "rules of evidence" in the legal sense, but intelligence and evidence nonetheless.
    3. If the argument is so clear cut, why is the Department of Justice memo that authorizes the kiiling of U.S. civilians overseas in general being kept secret?

    I am a retired military officer, graduate of the Senior Officer Justice Course, trained in the Law of Armed Conflict, and experienced in applying the law in planning military operations while on the staff at a joint command. There are real issues here. We should respect both sides of the argument.

    I believe it is possible to make an argument for the legality of this operation, given the sweeping nature of the joint resolution authorizing the use of force to combat the war on terror. But just barely, and an open debate of the issue is needed for the health of the republic. However, the authorization itself is deficient as it places no constraint upon the President in terms of manner, time or place in conducting operations, resulting in a blank check for the President, which can easily be abused.

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  10. And Chuck, what credentials do you have that would lead one to accept your views (and rants) as the proper analyses of the situation?

    I'm waiting...

    B-Daddy, excellent comment and informative.

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  11. What in your imagination is the relevant distinction between the CIA and "the military"?

    "The drone strike in Yemen, a sovereign nation with whom we are not at war could have killed anyone."

    Had you not said something so patently stupid, I might have believed you were what you claimed to be, but that is just a dumbass bridge too far. Or are you suggesting that Yemen is protesting our being there helping them in their (our) fight against alQaeda? Are you further suggesting that drones are something akin to a mousetrap? Just killing whatever or whoever indiscriminately?

    You people seem to have real trouble thinking rationally. If this was even on the border of being legally circumspect, why tell anyone it even happened?

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  12. "And Chuck, what credentials do you have that would lead one to accept your views"

    You've offered not one single word to refute anything I've said. We both know why, you gutless twerp. In fact, your only contribution to this discussion has been to attack me for writing the truth. You've been given more than one opportunity to demonstrate that you have any understanding of this issue. You've declined.

    Keep waiting, brave little soldier.

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  13. B-Daddy,

    I think you've hit the nail on the head. To wit, the termination of Al-Awlaki was completely legal (IMO) but the nature of similar actions necessitate a more expansive look at the power of the Executive, and possibly some legal guidelines for similar actions in the future.

    With that in mind, who handles such an issue? Would this be decided by Congressional legislation, or a decision by SCOTUS?

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  14. "But just barely, and an open debate of the issue is needed for the health of the republic. However, the authorization itself is deficient as it places no constraint upon the President in terms of manner, time or place in conducting operations, resulting in a blank check for the President, which can easily be abused.

    Just barely is all that's necessary. Open debate is what this is, and merely pointing out that much of the "debate" opposite me consists of ridiculous straw men and outright lies. And this crap about "the president" is getting tired. Brakabama isn't fighting al Qaeda. Our entire military is. They are the ones winning this war..and the constitution and blank checks and all this other made-up, hyperbolic BS is simply a way for people who simply don't like reality to pretend it doesn't exist.
    I really have no beef with people who want to argue that the Military should have to arrest members of alQaeda instead of kill them and that laws should be changed to require same. I think it's a goofy idea, but at least it's a legitimate argument. But this idiocy that says there currently exists such a legal regime in place is just full of crap. It's nowhere close to being true, and no serious person would claim it is.

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  15. We have citizens being killed by "fast and furious" but not a peep about it from our media, but this evil monster gets killed and THAT the left, media, and depressing so now, conservatives and just about everyone else it seems have a cow. Remember, this terrorist was only a citizen because he was an anchor baby. He had no loyalty to the US and was engaged with the enemy in warfare on foreign soil or do you think the Yemenis are bed buddies with us on the war on terror?

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  16. What about the left and MSM going bonkers over water boarding and yet now that their precious Obama is leading them, they are all for out right killing of "terrorist"!
    Water board... Bad! Murder... Justice!
    Can you say "Hypocrite"?

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  17. Personally, I would rather they had been captured alive so that they could be waterboarded. Waterboarding has saved countless lives and has yet to ever injure a single person. It would be fair to our servicemen to risk their lives for the sake of an enemy soldier though.

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  18. "No person shall be... deprived of life, liberty, or property, without due process of law." That's the law in this country, the "supreme law of the land,"

    True, but we do this every time we go to war or take military action.

    The treason argument is specious. He was not charged with that. In fact, we didn't charge him with anything. It is clear the United States did not consider him a criminal, but rather an enemy combatant who joined a military organization congress authorized the president to take military action against.

    even citizens who levy war against the United States, as outlined in Article III, Section 3, must be convicted and brought to justice in accordance with a legal process required by the Constitution,

    An unfounded assertion. Go read the quote you cite again. It defines treason and says how to convict someone of it. Nowhere does it say "must be convicted and brought to justice."

    it gives the president a sweeping power to target anybody for killing without trial, including the innocent.

    It does no such thing. He took this action under Public Law (http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/content-detail.html ), and it defines the circumstances. It does not make any distinctions for citizenship. Were Awlaki sitting in a library in New York reading the koran, this action would then be illegal.

    Does the United States president have the legal power to simply accuse an American of terrorism and order him killed? Legally, morally, historically: the answer is resoundingly, No.

    I wholeheartedly agree with you. But that is not what happened in this case.

    * Congress authorized the president to take military action against Al Qaeda, not just guys with machine guns, but all of AQ.

    * Awlaki joined AQ and was convoying through the Yemeni battlefield. AQ is at war with Yemen, so it is de facto a battlefield.

    * He was there, he was a self-avowed AQ member, therefore a valid military target pursuant to Public Law 107-40.

    If you want to say that law is too broad, I agree with you, but according to our constitution, it is the law of the land.

    For the record, I do not consider those who disagree with me to be "soft on terrorism." I also think you specifically, Wes, make a compelling case, but it is not the only argument and certainly not the only conclusion one can draw.

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  19. "If you want to say that law is too broad, I agree with you, but according to our constitution, it is the law of the land."

    And that's the whole case. That's why I have little respect for these arguments about "due process". It's a bunch of made up crap that people would like to be true but know isn't true so they evade the obvious for the sake of continuing the argument apparently thinking if they ignore the obvious for long enough their rhetorical pumpkin will turn into a coach.

    It's childish.

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