The Case for Not Killing a Fellow American

Why shouldn’t we kill Anwar al-Awlaki, an American-born Muslim cleric living in Yemen and apparently providing material aid to terrorists?  So what if he’s an American citizen… if he’s putting other American lives in danger, he should be taken out, right?

It seems that even the most emphatic opponents of assassinating al-Awlaki, such as Keith Olbermann, think that if we can achieve some level of certainty about the above propositions – that al-Awlaki offers material aid to terrorists and puts American lives in danger – that it’s time to call in the hit squad.  So is there a real case against killing al-Awlaki, or are we just arguing about degrees of certainty?

Well, to start with, let’s cherry-pick some phrases from the Constitution that seem to prohibit the extra-judicial assassination of Americans:

First, Amendment V: “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…”

This part seems pretty clear.  If it’s a crime that al-Awlaki has committed, he must be tried by a grand jury before being “held to answer” for his crime.  In the most conservative interpretation, this last phrase means that he shouldn’t even have to explain his actions without an indictment, never mind worry about his life – but more on that later. The exception referring to time of war or public danger only applies to individuals serving in the military, and is presumably meant to indicate that these individuals can be tried by courts-martial.

More Amendment V: “nor shall any person… be deprived of life, liberty, or property, without due process of law…”

Obviously what constitutes “due process of law” is subject to an enormous amount of interpretation, but the legal precedent for giving the executive branch free rein to execute Americans at will does not exist, so for the al-Awlaki execution to be legal, at the very least, it needs to be challenged and confirmed in a federal court.

Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”

Once again, if al-Awlaki has been accused of a criminal offense, trial by jury seems like a right.

Article III: “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 witness to the same overt act, or on confession in open court.”

I’m inclined to think that al-Awlaki is guilty not of a crime, as covered in the Bill of Rights, but of treason, as covered here in Article III.  But once again, the Constitution seems pretty explicit about how treason has to be handled.  Nobody can be convicted of treason without the testimony of two witnesses who observed the overt act (two people who were actually there when al-Awlaki did something, not two relaters hearsay) or confession in court.  We don’t have either of these pieces at the moment.

So all this having been said, it doesn’t actually say in the Constitution anywhere that the government can’t kill citizens willy-nilly.  At best, we have the “due process” clause and a bunch of explicit procedures for treason and criminal offenses.  Now I’m ready to assume that the government must require some sort of legal process before deciding to execute someone, but if someone disagrees, let him state his position – that the government can execute citizens at will – clearly, so that everyone else can pick sides in an informed way.

So, due process.  Ultimately, the power to decide the meaning of this clause lies with the people.  We elect the President, he appoints the Supreme Court, and they decide.  Alternatively, we just make the Constitution more explicit.

In most cases of Constitutional dispute, I’d be against such a liberal distribution of the power to interpret – explicit, clear writing like that of the First and Second Amendments shouldn’t be interpreted against its meaning.  But in the case of due process, it’s much less clear what the original meaning was – which isn’t to say some scholar couldn’t dig something up about what the founders had in mind, but rather to say that the words themselves lack a clear relation to actual things and people.  “Due process of law” is more of a general thing than “the right to keep and bear arms”.  We know what arms are.  Due process could be anything, any process that you can think of that’s legal in nature.

So the simplest case against not killing al-Awlaki lies in the interpretation of the due process clause one way or another.  I’d be in favor of defining this clause to mean that no American can be executed for any reason at all without a trial, whether he be accused of a criminal offense, a treasonous offense, or (like al-Awlaki) neither.  The exception, which judicial precedent seems to have fleshed out in some detail, would be individuals violently and dangerously resisting arrest – which al-Awlaki has not.

The reason for doing this is that it keeps power in the hands of the people, and not the government.  There is no reason to assume that our government will always be benevolent or well-disposed toward us, and so it is prudent to limit the government’s ability to do harm to individuals.  “National security” or “terrorism” may seem like serious threats to our country, but very few people would contend that they are existential threats.  To permit the government to kill at will – or what is the same, its own discretion – is an existential threat.  To set a precedent that will echo through centuries – the killing of Americans – to solve a problem so fleetingly contemporary and narrow is a foolish apposition of the great threat of future tyranny against the tiny threat of a man who persuaded another man to put dynamite in his underwear.

In this particular case, today, the slippery slope seems to be so short and obvious that it ought hardly to bear mentioning.  We are trying to kill al-Awlaki because he is a terrorist.  But Bill Ayers has been called a terrorist, so why don’t we just execute him too?  And Obama associated with Bill Ayers, so he’s probably a terrorist too.  Plus his last name is Muslim.  Maybe we should take him in for extrajudicial questioning and indefinite internment just to be safe.  The power of “Homeland Security” has already been abused, in the few short years since it’s been implemented, to track down legislators who were disrupting a quorum call in Texas.  The Bush administration seems to have flung accusations of anti-Americanism at all of its opponents on every issue, and Fox News commentators have tarred anyone who opposed any step of the war with the taint of aiding terrorists.  Is it really such a leap for some legislator to agree and declare the killing of people aiding terrorists legal?  I’m not saying it could happen tomorrow, but what about ten years from now?

No.  Responsible, far-sighted individuals will realize that the cession of power to the government is dangerous and nearly irreversible.  Trusting the government to only use its power for good is foolish.  Government only behaves with discretion until it doesn’t, and then people get hurt, and justice trampled.

There is one final school of thought that sanctions the killing of al-Awlaki, and this school deserves attention because it is widespread and pernicious.  I would refer to this school as the “apathetics”.  These are people who observe that the Bush administration, in its pursuit of the war on terror, accidentally killed an American in a raid, and that FDR put the Japanese in internment camps, and that the Branch Davidians were massacred without trial, and so how is this any different and why should we care, this is just what governments do, and at least this time it’s a relatively good government doing it for a relatively good cause.

This apathetic school of thought should not be mistaken with pragmatism.  These are not people who are seeking to pick their battles and try to channel human nature rather than dam it.  Rather, they are people who will not lift a finger to fight unless it’s in their own immediate and direct self-interest.  They have no care for principle; human nature is the law of the land, and we are just living in an advanced and veiled state of anarchy.  Law is merely the tool of the strong, or anyone who can turn it to their ends, and has no inherent meaning or moral value beyond any application it may have to the pursuit of one’s own immediate and direct self-interest.

Perhaps these people are right.  Perhaps we who are not apathetics are romantics, or idealists.  But let us hope that if we are not, they will be consumed in the bonfire.  Let us hope that if the tide of human oppression ever again swells over the battlements of arrogance, the apathetics, that human dike of Pangloss and inertia, will be swept away with the crimes for which it apologized.

Story of Civilization – IV.vii.iv – IV.x.iv

Here, Durant introduces the Muslim religion.  Anyone who says that Islam is a religion of peace doesn’t know what they are talking about, or is lying.  Islam was born in a sea of blood.  Its early history is clan-based or tribal warfare, vendetta, and murder.  Even after Mohammed died, Islam was a religion of violence.  One of its signal contributions to history was what is probably one of the greatest military achievements of the millenium: the Arab conquest of all lands south of the Mediterranean from Morocco to the Indus.

The Arab conquest is as interesting as many other surprising military events in history.  I found myself asking the same question of the Arab conquest that I asked of the Roman conquests in “Caesar and Christ”: how did they do it?  What made them so good?  In the Roman case, it turned out that the Roman legions had a relatively more dynamic formation than the Macedonian phalanxes that they opposed, allowing them to triumph by quickly adjusting tactics.  As it happens, this post suggests that the Arabs similarly turned mobility and dynamism to their advantage.  By having a force composed predominantly of cavalry, they were able to harrass their enemies with feints and scouting maneuvers until they discovered a point of weakness, at which point they could use their horses’ speed to coalesce on the weak points and concentrate attacks on them.  Presumably, the Arabs were not the first to discover the usefulness of cavalry; we have seen the Gothic tribes use similar tactics against the Roman legion, but perhaps such tactics had not yet achieved dominance in the Roman world itself.

In any case, the intricacies of warfare should not distract from the greater point: much of Islam’s early glory comes from religiously-motivated violence.  In fact, early Islamic violence was not motivated merely by faith in Mohammed in general, but by the specific promise that a death on behalf of the prophet would guarantee acceptance into paradise.  In one of the very first episodes in Mohammed’s story, after having preached Islam in Mecca and earned the enmity of the cults there, Mohammed fled to Medina.  The citizens there had offered him their protection, asking only what they would get should they die at the hands of the angry Meccans.  Mohammed promised them paradise.

Such promises were not merely given for the potential of death in defense of the prophet.  Later, in Medina, Mohammed personally led numerous raids on the trade and agriculture of the surrounding communities, again promising paradise to those who died in these raids.  Mohammed also assaulted – and exterminated – several neighboring Jewish tribes, on the concern that they might come to the aid of his enemies in Mecca.  His warriors were motivated by promises of paradise.  Again, these were not wars of defense, except under the most liberal definition of defense by attack.

Nor was Muslim violence confined to unbelievers.  The early history of Islam is rife with internecine strife, which lives to the modern day as the fight between Shia and Sunni.  One episode from Durant will inspire the imagination to understand this early history:

“Abdallah, made governor of Syria, managed the matter with humor and dispatch.  He announced an amnesty to the Umayyads, and to confirm it he invited eighty of their leaders to dinner.  While they ate, his hidden soldiers, at his signal, put them all to the sword.  Carpets were spread over the fallen men, and the feast was resumed by the Abbasid diners over the bodies of their foes, and to the music of dying groans.  The corpses of several Umayyad caliphs were exhumed, the almost fleshless skeletons were scourged, hanged, and burned, and the ashes were scattered to the winds.”

The point of these stories is not to malign Islam.  I have the highest respect for any individual who takes a set of premises – even be they religious in nature – and rigorously, logically applies those premises to his life, and follows them to whatever conclusions to which they may lead him.  I simply think it unfortunate that Islam should be misrepresented by its followers – such as here – in an effort to win… what?  Support?  Understanding?  Sympathy?

I can even accept someone who wishes to be a hypocrite, who wishes to call himself a Muslim but practice a religion solely of peace, so long as he admits that this is what he will do.  I will pick no quarrel with someone who acknowledges the violent and bloody history of Islam, starting with the Prophet himself, and then says, “I choose to call myself a Muslim, but I will not accept all of the teachings of the prophet, only those that please me, and allow me to conform with the secular mores of my time and place.”  I only ask that if this is what one will do, that he say so, that he admit that he cares not about premises, that his ultimate concerns are secular, or at least predetermined spiritual mores, and that he will use even the most tortured logic to get from any premise to his conclusion.

Story of Civilization – III.xv.i – III.xviii.v

Chapter xvii covered Roman life; Chapter xviii covers Roman law.  On a philosophical level, Chapter xvii is boring; Chapter xviii is interesting.  Durant opens by noting the opposition in good government between liberty and order.  He ascribes to Greece the establishment of liberty, and to Rome the establishment of order.  This ascription carries some merit; Greece was perhaps one of the original civilizations to give to the citizen body the sovereignty, and Rome continued this tradition (after the overthrow of the monarchy) even, in name, in the period of the empire.

Durant then makes another interesting comment: “[Emperor] Antoninus, a product of the Stoic school, decreed that cases of doubt should be resolved in favor of the accused, and that a man should be held innocent until proved guilty – two supreme principles of civilized law.”  Coming from a historian, this comment is amazing.  Over the course of civilized history – from Rome to present – these principles have almost certainly been more honored in the breach than in the observance.  In the very year that Durant published “Caesar and Christ”, the Supreme Court upheld the internment of more than 60,000 American citizens of Japanese descent in Korematsu vs. United States.  The vast majority of these citizens were deprived of their liberty in direct violation of the United States Constitution, which guarantees the right to writ of habeas corpus.

Durant’s “supreme principles of civilized law” are as forgotten today as ever.  Consider the following thought experiment: you are the President, and you have received certain information from CIA interrogations indicating that a particular man is a terrorist with an advanced plan to destroy New York City.  You are ready to apprehend the man, except for one problem: he is one of a pair of identical twins, and you’re not sure which is the terrorist.  Who do you detain?  What if instead of identical twins, it’s three brothers?  Four cousins?  All of the attendees of a particular mosque?  All Arab-Americans?

If you answered that you should detain anyone in any of these cases, you’ve just violated somebody’s writ of habeas corpus, and in doing so, in essence violated the “supreme principle of civilized law”, the presumption of innocence.

I suppose it’s remarkable that we should look to the Romans for guidance.  Antoninus Pius and his juridical principles came very late in the history of Rome, and for much of its history, Rome was a country not only of slavery and brutality, but also of proscriptions – the political slaughter of citizens – and the patria potestas – the power of life and death held by the patriarch over every member of his family, including his wife.  We have come a long way.