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.