Tuesday, October 4, 2011

Pleading the Fifth

Anwar al-Awlaki, an American citizen, was assassinated by the Obama Administration in Yemen on 30 September 2011. Mr. al-Awlaki was suspected of inciting terrorism but had never been put on trial or convicted of a crime. He was innocent until proven guilty. The U.S. government's willingness to assassinate one of its own citizens is indefensible. The Fifth Amendment to the Constitution guarantees every accused criminal the right to due process of law. The Fifth Amendment is part of the Bill of Rights—inalienable rights, not privileges or legal niceties—due to every citizen of this country, regardless of what crimes he or she supposedly committed. Due process includes the right to a fair trial; it is also your right not to incriminate yourself under oath. We hold those rights so sacred that police officers are required by law to remind you of them before they arrest you. How ironic, then, that in this case the Fifth Amendment was violated so casually by the U.S. government, and without public protest. The Obama Administration has apparently determined that it can dispense with a citizen’s right to due process if he’s supposedly a bad man. It has made itself judge, jury, and executioner. What the government seems to have forgotten is that neither the President, nor anyone else, can determine which Constitutional rights citizens enjoy or which must be honored. The President is duty-bound to uphold them all. In the United States, citizens do not live at the mercy of their government; we are the government.

So why aren’t your elected representatives fuming about the Executive Branch’s violation of Mr. al-Awlaki’s (and, by extension, your) right to due process? Or why isn’t Congress moving to censure the Obama Administration for overreaching its Constitutionally limited powers? Probably because you and I don’t elect them to care about such things and won’t hold them responsible for not pursuing it. Why doesn’t the Supreme Court hold the Obama Administration accountable for violating Mr. al-Awlaki’s Fifth Amendment rights? No one has brought the case to them. Where are the conservatives on the Right who claim to love and uphold the Constitution? Their silence belies their rhetoric. And where are the defenders of civil liberties on the Left who claim to speak truth to power? Their silence also belies their rhetoric. Why isn’t there public outrage over the assassination of Mr. al-Awlaki? Perhaps because he was a Muslim with an Arabic name? American law does not discriminate on the basis of religion or ethnic heritage. Are we unmoved because Mr. al-Awlaki was a suspected terrorist? In the United States, you are innocent until proven guilty and even criminals have Constitutional rights. Is it because he was assassinated in faraway Yemen? It is not acceptable for the U.S. government to deny one of its citizens due process on American soil or anywhere else. More shockingly, maybe you and I are unfazed by the assassination of Anwar al-Awlaki because we didn’t even know that it happened. Ignorance is a scary prospect because the government can easily misinterpret silence as tacit permission. An even more frightening prospect is that if no one holds the U.S. government accountable for violating Mr. al-Awlaki’s Constitutional rights, no one is likely to hold the U.S. government accountable when it violates yours.

I still believe that in the United States of America you are innocent until proven guilty in a court of law by a jury of your peers. Apparently, in the case of Mr. al-Awlaki, the Obama Administration does not. Do you?


SarahDiane said...

Excellent post, Andrew. I don't know what to say, except that it sure is a scary time we are living in.

Steve said...

I did think of you when I heard the news, Andrew. I wonder though, can one declare war on the US and thus become an enemy combatant and thus a legitimate military target (like Osama bin Laden)? Think the Civil War and the suspension of suspension of habeus corpus.

Steve Fleming

andrew said...

Steve, you bring up a good point and that is certainly how the Obama Administration, and the Bush Administration before it, justified such assassinations. But even if al-Awlaki declared war on the United States, he is not a soldier with a uniform representing a country. He didn't attack anyone. He was only an ideologue. It is absurd for the United States to declare war on an individual (al-Awlaki) or a nebulous terrorist organization (al-Qaeda) or an undefined ideology (militant Islam) or an amorphous political tactic (terrorism). It will be a never-ending war and the government can assassinate anyone because there's no clear standard of what makes someone an "enemy combatant." Militaries should only be used to fight other militaries, not individuals. Terrorism is a crime, and thus a police matter. For example, Timothy McVeigh, another American terrorist, also declared war on the federal government but was put on trial for his crime and executed legally in June 2001. What's the difference between him and al-Awlaki? 9/11/2001. We're so scared of terrorism now that we're willing to give the government excessively wide powers, including the suspension of our privacy and Constitutional rights, to fight it at home and abroad. Giving ever-wider powers to the government is a worrisome trend, and usually a slippery slope. If Mr. al-Awlaki was guilty of inciting terrorism (which I believe he was), he should have been extradited from Yemen and put on trial. The same for Osama bin Laden. I'm not ignorant of just how difficult that would have been, but it seems to me the only way to bring them to justice and remain true to the principles enshrined in our Constitution. Admittedly, I do not know enough about Lincoln's suspension of habeus corpus during the Civil War to comment on that. But in general I dislike the idea of "temporarily" suspending rights, even in times of war. The Constitution makes no allowance for it and I do not believe that rights can be dismissed by executive order. Congress could dismiss them, provided it meets the thresholds required to amend the Constitution, but that seems unlikely, which is precisely the point. We have checks and balances between branches of government to prevent tyranny. Suspension of constitutional rights by presidential fiat under the guise of national emergency happens frequently in the Middle East, which allows dictators to retain repressive emergency powers for decades. Even in this country, temporary suspension of rights always leads to violation of those rights--that's the reason for which they're suspended! The internment of Japanese-Americans during WWII is an example.

Jack Erb said...
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Jack Erb said...
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Jack Erb said...

Very much enjoyed your post, Andrew. My wife directed me here because she thought I’d be interested in reading it. I too have been thinking a lot about this incident over the last couple of days, yet I still haven’t come to a conclusion on how I feel about it.

From a legal standpoint, I agree with your post 100%. Just as you argued in your post, killing al-Awlaki was, to me, a violation of the legal right to due process afforded to every American citizen, regardless of crimes, actual or alleged.

Yet at the same time, I didn’t find myself upset, “fuming”, or otherwise “outraged” at this conspicuous affront to the Constitution, which (also noted by you in your post) seems to be a reaction shared by many. Philosophically, I didn’t seem to mind that we had killed him, and I couldn’t quite put my finger on why I felt this way when logic was telling me it was legally wrong.

To me, the whole incident is reminiscent of the story of Captain Moroni, Amalickiah, and the Title of Liberty in Alma 46. Amalickiah and his followers were seeking to “destroy the church”, but also sought to “destroy the foundation of liberty” and had “determined to slay” their fellow citizens. Captain Moroni rallied his side, and was able to obtain an advantage over the dissenters without shedding any blood. When Amalickiah saw that he wouldn’t be victorious, he and his followers decided to flee the land. Yet Moroni STILL pursued the dissenters in order to “bring them back and put Amalickiah to death.”

Why did Moroni seek to kill Amalickiah after he had attempted to leave the country peacefully? Because Moroni “knew that [Amalickiah] would stir up the Lamanites to come to battle against them”. That is, Moroni was gravely concerned about the possibility of dissenting Nephites inciting violence against their fellow citizens.

At that point, Amalickiah was (as you put it in your reply to Steve) not a soldier in uniform representing a country. Nor had he attacked anyone. He was only an ideologue, and his followers were only a nebulous organization (the king-men), with an undefined ideology (“lower judges” seeking for power) using amorphous political tactics (unspecified tactics that led to “exceedingly precarious and dangerous” affairs among the Nephites). Even so, the Nephites felt justified in (essentially) declaring war on Amalickiah and his followers – their fellow countrymen.

In fact, they did it twice – in Chapter 46 and again in Chapter 51. Most of those captured in Chapter 46 likely received some sort of legal trial. Those who took an oath of liberty were freed; those who didn’t were put to death. However, in Chapter 51, four thousand dissenters were “hewn down by the sword,” simply for not taking up arms against the advancing Lamanites to defend their country. Others were thrown into prison and held without a trial “for there was no time for their trials” during a war.

Amalickiah did elude capture, and he did, in fact, lead the Lamanites in battle against the Nephites (multiple times). And ultimately, the Nephite army and Teancum ran down Amalickiah and assassinated him.


Jack Erb said...

Now, I have no doubt that Nephite law was very different from our modern Constitution. And perhaps there was actually room in their law to LEGALLY go after Amalickiah and assassinate him for his actions. In addition, at the moment Amalickiah was assassinated, he was indeed the commanding leader of a well defined opposition (the Lamanite army). So the parallels between al-Awlaki and Amalichiah are not exact. But this parallel was the only rationale that I could come up with as to why I, personally, was so conflicted over al-Awlaki’s death – why I logically thought we shouldn’t have assassinated him, but philosophically didn’t object to the fact that we had.

I guess the ultimate answer to which side I fall on would be to ask myself how I would have acted if I were in President Obama’s position. In other words, would I have ordered the attack? I don’t think so. I think I would have erred on the side capturing al-Awlaki, preserving his constitutional rights, and giving him a proper trial (for the sole reason that he was an American citizen). However, I also believe that there is something to be said for defending the liberty and freedom of our country and our citizens, regardless of whether the threat comes from a U.N.-recognized country, a loose band of insurgents, or a single, rogue individual.

Anyway, thanks for your thought-provoking post. I thought it was very well written and it helped to clarify my feelings and thoughts on this issue. And my sincere apologies if I hi-jacked your (and your wife’s) blog.

Hope things are well in SB. We miss all of you and hope to be able to visit sometime soon!


Jack Erb said...

P.S. Sorry for all the technical difficulties...I don't often comment on blogs.

Steve said...

hi andrew, based on the tenor of your post, I have added your name to the terror watch list. p.s. if you see a large metallic object flying around your home, it is, um, just a kite, so don't worry 'bout it.

Steve said...

There's differences between al-Qaeda and McVeigh in that we could arrest the guy (much harder with Bin Laden) and he was in the US to do so. He wasn't part of a terrorist organization headquartered in another country. It struck me justifiable to go after al-Qaeda after 9/11 in a military manner. Afganistan had made it clear they were not going to hand him over.

I bring up Lincoln (I'm not an expert on it either) to show that such things had been done in an instance of an act of war by US citizens. So this isn't the first time and the country didn't fall apart.

Steve Fleming

Jack Erb said...

Not sure if you all saw this article in today's NYT...


Flem said...

I was really excited to see my husband's hilarious comment about adding you to the terror watch list until I realized my spouse was the other Steve commenting.

I don't watch enough news to weigh in, but in general, killing people seems wrong.