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Saturday, October 01, 2011

The glorious killing of Awlaki and the unfortunate precedent it sets.

By David K. Williams, Jr.

Anwar al-Awlaki was evil. He hated his country of birth. He wanted to destroy it. I know of no one disputing any of this. I also understand the visceral reaction to killing an enemy. I have zero sympathy for the man. I am glad he is dead.

But there is problem we cannot ignore. If the President has the unilateral authority to declare American citizens* a serious threat to the country and place such people on a list and have those people killed, where is the check on that authority?

Do we just trust the Executive Branch to use good judgment? Monarchs have unilateral authority to kill based on their good judgment. Do we want to give our President the authority of a monarch when it comes to killing people that pose a threat to the country?

If the President has such authority, why did we bother with a trial for Timothy McVeigh? He killed hundreds of innocent Americans in an act of terror. Did the President have the authority to have him summarily executed? If not, how does that situation differ from the Awlaki situation? McVeigh was found in the United States and Awlaki in Yemen, but is that the critical distinction? What if McVeigh had made it into Canada? Could he then be summarily executed because he was no longer on American soil?

We are not dealing with battlefield scenarios. If someone poses an imminent threat, say, by pointing a gun at you, you can defend yourself and shoot back with the intent to kill. But if that same person escapes you and is found later sitting in a diner or a park bench, you can not legally walk up to him and put a bullet in his brain. Perhaps we should be able to do that, but I think not. One may certainly advocate for such a policy, but it would require a change in existing law.

Some have argued that Awlaki lost his U.S. citizenship by his terrorist actions. (If so, McVeigh must have, as well. If the rule of law is not consistently applied, it is not justice.) Title 8, Section 1481 of the U.S. Code is cited as authority for that conclusion. That citation is misplaced. The statute, "Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions," lists the circumstances under which one can lose citizenship. The proponents of this argument rely on this provision of the statute:

(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
. . .
(7)committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them...


So far, they have a good case. But they leave out the last phrase of section (a)(7). It reads

. . . if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

That is a rather important clause. One is given due process to contest the allegation of treason before losing one's citizenship under this statute.

I will grant, for the sake of argument, that the killing of Awlaki was a glorious moment in US history and should be praised with hosannas. Perhaps we should get a national holiday. Perhaps killing Awlaki was the easiest call in American history. 

Even if all of that is true, should we be satisfied with the President's unchecked unilateral power to put Americans on a list for assassination? If not, then we should be concerned about this precedent, as glorious as it may be on this occasion, and we should put some check on this authority.

If we are indeed satisfied with the President's unchecked unilateral power to put Americans on a list for assassination, Lord, help us.



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* I understand that citizenship is not always a prerequisite for constitutional protections, but that discussion is for another day.



2 comments:

  1. I find the hand-wringing over the "legality" of al-Awlaki's killing to be rather ludicrous...
    Granted that he started out as an American citizen, but this is not a matter of law enforcement - it's a matter of war (or, if you prefer, "insurrection" or piracy, the nearest 18th-Century legal equivalent).

    I believe that there are also statutory and constitutional provisions dealing with individuals "committing armed insurrection" or piracy - which is probably the closest 18th-Century legal equivalent to acting as part of a terrorist organization in the 21st Century.

    In fact, both American and international law with regards to piracy allows substantial leeway (and quite harsh punishments) in dealing with pirates (summary executions without trial being more the norm than the exception).

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  2. finally, some good sense on this blog. Except for the word "glorious." Maybe we could change the name to "Obsequious Carp?" This fish has little teeth.

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