Lamar W. Hankins : Killing of Anwar al-Awlaki is Assault on the Constitution

Genghis Khan (R-Mongolia). How much progress have we made? Image from the genghis kahn.

An assault on the Constitution:
The killing of Anwar al-Awlaki

It is hard to see that we have made much progress beyond the world of Genghis Khan nine centuries ago.

By Lamar W. Hankins / The Rag Blog / October 4, 2011

If the killing of Anwar al-Awlaki (along with several other people in Yemen on September 30 by two air strikes from U.S. Predator drones) does not at least trouble you, there is probably no reason to read this essay.

I am searching for a rational explanation for al-Awlaki’s killing that will satisfy the values with which I grew up -- values based on America’s laudable conduct dealing with Nazi war criminals after World War II and with the U.S. Constitution that I learned about in law school.

I’ve read the glib assurance from Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, that he believes the killings were legal. His opinion is not comforting. The opinions of law professors and legal advisers are purchased, either literally or figuratively, as easily as are the opinions of a barber.

The Constitution seems to mean whatever any Humpty Dumpty legal scholar wants it to mean. (“When I use a word, it means just what I choose it to mean -- neither more nor less.” -- Humpty Dumpty in Through the Looking Glass.)

What we do know with reasonable certainty is that Obama Administration officials have confirmed that the Yemeni-American Islamic cleric Anwar al-Awlaki was killed by the U.S. government. The administration claims that al-Awlaki was a terrorist, though no evidence has been presented to prove that claim.

We do know that he was a U.S. citizen, born in New Mexico. As a citizen, al-Awlaki was entitled to the rights afforded by the First Amendment to the U.S. Constitution, which protects his right to abhorrent opinions. His apparent delight in the Ft. Hood killings two years ago expressed in email correspondence with the Major accused of those slayings makes al-Awlaki a terrorist sympathizer at the least. But that does not negate his citizenship, nor his rights to the protections of the Fifth and Sixth Amendments to the U.S. Constitution.

The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The exception found in the Fifth Amendment as quoted might be used to justify the killing of al-Awlaki if we assume that he was chargeable with a capital or infamous crime, but without such a formal charge, the exception applies only “in a time of War.”

We are not at war in Yemen, where al-Awlaki was living and working before he was killed. We have been presented with no evidence that al-Awlaki was creating a public danger, but if he were, he was not engaged in “actual service” in a military so far as anyone has claimed. And the U.S. government has not made any claim that his killing falls within an exception found in the Fifth Amendment.

In fact, the Administration seems to think it owes no explanation at all.

What our government was permitted to do under our system was to have al-Awlaki indicted for any alleged crimes he might have committed. The government chose not to do so. Had it done so, al-Awlaki, as a U.S. citizen, would have been entitled to the protections of the Sixth Amendment, which provides:

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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

An effort was made by al-Awlaki’s father to prevent al-Awlaki’s killing after it became known a short while ago that al-Awlaki was on a U.S. government list of terrorists targeted to be killed or captured. This past summer, a federal court, based on procedural grounds, would not allow the father’s case to go forward.

In our post-9/11 world, not even the courts will protect citizens from being summarily executed by the government. Previously, the authority to kill American citizens has been restricted to clearly defined geographical boundaries of military conflict at a time when the U.S. was at war with a clearly identified enemy. This was not the case with al-Awlaki.

Glenn Greenwald, who is a constitutional law attorney and legal writer for several publications, had this to say about the killing of al-Awlaki:

Anwar al-Awlaki is a U.S. citizen. He was ordered assassinated by the President of the United States without presenting any evidence of any kind as to his guilt, without attempting to indict him in any way or comply with any of the requirements of the Constitution that say that you can’t deprive someone of life without due process of law.

The president ordered him killed wherever he was found, including far away from a battlefield, no matter what it was he was doing at the time. And if you’re somebody who believes that the president of the United States has the power to order your fellow citizens murdered, assassinated, killed without even a shred of due process, without having to have charged him with a crime or indict him and prove in a court he’s actually guilty, then you’re really declaring yourself to be as pure of an authoritarian as it gets.

To emphasize the extraordinary action of our government in killing al-Awlaki, Greenwald continued:

Remember that there was great controversy that George Bush asserted the power simply to detain American citizens without due process or simply to eavesdrop on their conversations without warrants. Here you have something much more severe. Not eavesdropping on American citizens, not detaining them without due process, but killing them without due process, and yet many Democrats and progressives, because it’s President Obama doing it, have no problem with it and are even in favor of it.

To say that the President has the right to kill citizens without due process is really to take the Constitution and to tear it up into as many little pieces as you can and then burn it and step on it.

Greenwald put the whole matter in even more stark relief when he said,

The problem is that American political culture is such that evidence doesn’t make a difference. Trials and due process are very pre-9/11. What we believe is that if the president stands up and says someone is a terrorist, that’s all we need to know; (he is) therefore guilty because the leader has accused him of being that, and as long as the Aides then go and leak to the media, which they have done, that he played a significant operational role and was a big Al Qaeda leader, we won’t need to see evidence. We’ll just stand up and blindly click our heels and accept it’s true, and then cheer the fact he’s been murdered based on unproven claims.

It is well-known that al-Awlaki was a fierce critic of U.S. policy in the Middle East. Of course, as a U.S. citizen, he had First amendment rights to speak his mind about U.S. policy. If anything he said could have been construed as treason, once again, he could have been indicted for such alleged treason, rather than being summarily executed.

But after the recent spectacles of Americans (all apparently Republicans) cheering the death of a medically uninsured man who “chose” not to have health insurance or could not afford it, cheering the execution of people who may have been innocent of any capital crime, and booing a gay serviceman who spoke out about an end to the “don’t ask, don’t tell” policy in the military, I don’t expect many Americans of either political party to be concerned about the extra-judicial killing of al-Awlaki and his unnamed companions.

Since 9/11, Americans have largely acquiesced in the curtailment of their constitutional rights with minimal push-back against the government. But with this action, President Obama has doubled down on the corruption of American values destroyed by the Bush-Cheney band of rogues.

The only just remedy for what Barack Obama has done is for impeachment charges to be introduced in the House of Representatives. If ever there was a high crime, killing an American citizen without even a veneer of due process is such an offense warranting impeachment.

That may be the only way for the American people to learn the whole truth about this reprehensible action of a U.S. president. If evidence of a stain on a dress was grounds for impeachment in 1998, evidence of a stain on the Constitution should be even more compelling grounds in 2011.

But impeachment will not be discussed because the House of Representatives is controlled by the Republicans once again and the Republican leadership, as much as or more than the Democratic leadership, favors an American government that can engage in such extrajudicial murder. It shows that we are strong and beyond the control of any law or treaty. It also appeals to the macho mentality of American culture.

Our constitutional system is failing, and that failure started long before 9/11, as we engaged in illegal and covert military actions wherever we pleased. Perhaps it has failed already to the point that it cannot be renewed or rejuvenated. If our civilization rests on such dishonoring of our constitutional foundation, the sooner we can be done with it and start anew, the better the world will be for it. It is hard to see that we have made much progress beyond the world of Genghis Khan nine centuries ago.

My greatest regret as I near the end of my life is that my generation and those that have followed have left such a dismal future for my granddaughter and the other children of our youngest generation. I fear that these children will live on a far worse “Desolation Row” than the one imagined by the songwriter.

When Americans refuse to stand up for what is right, and just, and moral, the decay of American civilization will produce a stench worse than any other cesspool known to humankind. Already it is not good to breathe too deeply.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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