When do US citizens forfeit their rights?
The US government killed Anwar Al-Awlaki today. This was a premeditated liquidation – Al-Awlaki, a US born citizen turned leader of Al Qaeda of Arabian peninsula, was put on a list for targeted killing last year. I do not mourn for this man – he was a traitor and a terrorist and got what was coming to him. Some people and some ideas in this world, especially the radical Islamic fundamentalists, should be wiped out.
And yet. What was done today, while a significant tactical victory, sets a horrible and dangerous precedent. The US President just ordered and the US military executed an assassination of a US citizen in a foreign country with whom we are not at war. Granted, this man was a bad guy and an enemy of the state, and a threat to America. Yet this killing was not done during the course of a battle nor was any judicial process or congressional oversight involved in the targeting of this US citizen. Citizenship means something. The USA is distinguished from most other nations in how it treats its own citizens. In my humble opinion, how this killing was done is comparable to how Russia killed Alexander Litvinenko in London a few years ago – a targeted assassination of their own citizen who they considered an enemy of the state in a foreign country. It is a very dangerous concept that should not be legitimized.
The justifications given for this killing ring hollow. Some cite the case of Herbert Hans Haupt, a US citizen turned Nazi saboteur who was executed after infiltrating America in 1942. Yet Haupt received a military tribunal hearing prior to his sentence. Some state that a court considered al-Awlaki’s father’s challenge to the placement of his son on the hit list and that the court duly rejected the father’s plea as he had no standing and that the son was free to seek the protection of the court; would you return to a court of a nation whose President has put you on a hit list? This same court said that the government requires a warrant to tap Americans overseas, but extrajudicial killings of Americans are beyond judicial review; such a statement is patently absurd. Others state the 2001 Authorization to Use Military Force gives the President authority to use all necessary force to destroy Al Qaeda and its affiliates, and that the Article II investiture of the Commander-in-Chief powers (including powers to suppress armed insurrection) in the Presidency is beyond question. Yet this a short road to carte blanche murder – do we want to invest one man with the power to designate US citizens at will as enemies of the state as part of the war on Al Qaeda?
With the one caveat that I am not privy to any knowledge of Al-Awlaki’s imminent threat capabilities, I would think that the right way of handling this case would have been to long ago try al-Awlaki in absentia for treason with appropriate counsel for his defense and strip him of his citizenship if conviction resulted. We certainly had the time; this guy was placed on the President's kill list over a year ago. Treason is something we don’t try anymore, and I don’t understand why.
This is qualitatively different than Guantanamo, waterboarding, or collateral damage. Constitutional rights do not extend to foreign citizens (lawful enemy combatants are entitled to Geneva protections, and unlawful enemy combatants aren't; they should receive basic human rights and, like pirates, fall under enemies of humanity rules). But US citizens do not forfeit their rights against the US government when they go abroad. They would forfeit in active combat with the US military, or upon conviction of a crime (and treason is certainly a crime). Law enforcement and the military have the right to self-defense. But the US government doesn't get to do what it wants to a US citizen and throw out the Bill of Rights when it's inconvenient. The President is not an elected king. US citizens at a minimum have the negative rights (what the government should not do to them) enumerated by the Constitution and the Bill of Rights; they are not forfeited by being abroad. They are forfeited by treachery which is established by due process - the American Communists Julius & Ethel Rosenberg were executed after a trial, not by assassination.
The Obama administration has set all kinds of dangerous precedents this year – going to war with Libya without any congressional debate comes to mind. Then it was the Bureau of Alcohol, Tobacco, and Firearms (which reports to the Attorney General) distributing guns to Mexican drug cartels. Now it’s assassination of a US citizen. This goes against the Declaration of Independence, the Constitution, and the Fifth Amendment. This is unbridled executive arrogance. This is wrong. Something wicked this way comes.