The Golem Speaks

The al-Awlaki Killing Threatens Us All

Published by Peter Mains on October 01, 2011 at 03:13 PM

Listening to the radio on the way home today, I heard something troubling. Conservatives were defending the al-Awlaki killing as though the president's authority to order a drone strike anywhere in the world were obvious and incontrovertible. Yet, this is a serious inversion of conservative principles.

Conservatives typically defend limited government. Where liberal embrace an expansive view of the Constitution, conservatives advocate for an originalist, strict-constructionist, or otherwise limited interpretation. Whereas liberals often arguable the rights are negotiable, we demand that our freedoms be protected. Whereas liberals argue that killing the unborn is an acceptable, we insist that the dignity of all human being in inviolate.

The power to kill is the most serious power that can be granted to a person. As such, it is not in keeping with the principles of limited government that Congress grant the president such power and leave him unfettered to exercise it as he sees fit. The problem with the al-Awlaki strike, from a conservative standpoint, is that such a power would not seem to have articulable limits.

Let us walk through some of the seemingly conservative arguments that were made on the program.

"The Constitution only applies in the United States"

The implication here is that the president is free to strike targets outside of the United States because the Bill of Rights, normal privileges and immunities, etc. are not applicable beyond our borders. This is wrong for several reasons. The US Constitution is not a grant of rights. The Constitution is a grant of tightly circumscribed, enumerated powers to the government. The Bill of Rights was included so as to explicitly affirm the rights we are already endowed with as human beings.

Since the Constitution is a grant of powers rather than a grant of rights, we have to ask if governmental power extends beyond our shores. Clearly it does. Our government asserts the authority to tax US citizens who work abroad. When we send ambassadors and military personnel abroad, they are acting on behalf of the US government. Since they are exercising powers enumerated in our Constitution, it is reasonable to suggest that the Constitution applies beyond our shores.

Of course, what the caller was asserting is that al-Awlaki does not enjoy the same rights that you and I do because he was overseas. Anwar al-Awlaki, even though he was an enemy of the United States still possessed the rights of life, liberty and property by virtue of being a human being.

Our government deprived al-Awlaki of life because he was believed to constitute a threat to the United States. We asserted our right to self defense which necessarily deprived al-Awlaki of the rights he previously held. Furthermore, even though al-Awlaki was overseas, he was still, it is reasonable to say, guilty of treason. We could have seized al-Awlaki and brought him back to the United States to stand trial or we could have tried him in absentia.

Before we strike military targets, we typically do not consider administering due process. Nevertheless, perhaps we should establish something resembling due process rather than allow the president unlimited discretion in striking targets around the world. Requiring that the president seek permission from the FISA courts, a military tribunal or some other type of court would at least create a small check on the president's power to wage war worldwide. Otherwise, the power of the president to defend our nation becomes a blanket grant of lethal authority.

"Congress needs to fix our laws to allow men like al-Awlaki to be stripped of citizenship"

This was a claim made by the guest host. It is also false. Even though al-Awlaki did not swear allegiance to a foreign state, federal law allows those who take up arms against the United States to be stripped of their citizenship. I have it on good authority that the US military, in fact, urged the Department of Justice to do precisely that. There does not appear to be anything to fix.

The confusion appears to be deeply rooted in our complacency regarding the existence of nation states. We take for granted today that everyone must be under the authority of some government. Therefore, nobody can be a man without a country. According to the State Department's website, this is incorrect. If you go abroad and renounce your citizenship, the State Department warns that you can become a stateless person.

I would also point out that we do not owe allegiance, in the strictest sense, to the United States. A less ambiguous and more appropriate word than allegiance is loyalty. Allegiance is that which is owed to a liege -- a feudal master or lord. We do not have kings and dukes in the United States, and so those portions of English common law which reference allegiance -- which are relevant to the question of citizenship or subjecthood -- are not directly applicable to the United States. Unlike subjects, that we as citizens have a right -- asserted by our Declaration of Independece -- to alter or abolish government when it becomes tyrannical.

Nevertheless, embedded in our Consitution is the power of the government to strip citizens of citizenship when they take up arms against our nation. This principle would seem to contradict the preceding principle, but that is the paradox of the social contract. We are required to abide by the rules, yet the 2nd Amendment acts as a safety valve for when those rules become a vehicle for tyranny.

"The president is allowed to conduct strikes abroad, but not here in the United States"

If al-Qaida were to strike the United States again, the president and the military certainly would have the authority to defend our nation. Congress quickly approved a declaration of war following Pearl Harbor, but our military did not have to wait for a declaration of war before they defended themselves and our nation from attack. To do so would be like a police officer waiting for a warrant rather than stopping a bank robbery in progress.

In a case of imminent threat, the president has the implicit authority by virtue of his position as Commander in Chief to take necessary actions in defense of our country. This may be a broad interpretation of the Constitution, but it is not a novel intepretation. Precedent, rightly or wrongly, seems to reinforces this interpretion. The War Powers Resolution, assuming that we accept the WPR as being Constitutional, also grants (or perhaps reinforces) limited power to the president so that he can deploy military force without a declaration of war.

This raises the issue of checks and balances as well as separation of powers. The president can act unilaterally in emergencies, but what constitutes an emergency is subjective. An extreme hypothetical illustrates the principle. Let us imagine that President Obama were to look at the polls and see Rick Perry gaining on him. Seeing a political threat, he declares a belief that Rick Perry belongs to al-Qaida and launches a strike on the Texas governor's mansion before Perry's lawyers can sue to have the governor removed from the CIA target list.

Is that far-fetched? Absolutely. It would never happen, but the reason it would never happen is not because the president lacks the apparent authority to do so. Just as President Obama placed al-Awlaki on the CIA target list without seeking legislative or judicial approval, he could, theoretically do so to any US citizen (or non-citizen, for that matter). By granting the president such power, we are blindly trusting the president to be faithful to our traditions and to not violate the spirit of our laws and Constitution.

To pick a less extreme example, let us imagine that President Obama simply made a mistake. He puts the wrong man on the target list, and before the ACLU can successfully plead the man's case, the deed is done. What redress do we have? It is unlikely that Congress would impeach the president for a perceived mistake. It is unclear that they even have the authority to do so. In all likelihood, the impeachment would become a partisan draw, just like the impeachment trials of Andrew Johnson and Bill Clinton. Regardles, the difference between the fanciful Rick Perry example and the more mundane accident example is subjective. It requires probing the president's motives in a way that is simply not possible.

The solution would be for Congress and the judicial branch to begin acting as a check on the executive branch. Instead of granting the president the authority to prosecute an open-ended war on al-Qaida, Congress could influence the course of that war by attaching restrictions on the use of funds. They should review the course of the war from time to time, prescribe its scope and withdraw the AUMF if need be. Otherwise, the president is unfettered in his ability to expand the scope of this war as he sees fit.

"Ron Paul is nuts for suggesting the government will try to keep us in"

The response to this argument is simple. They already do. The US government claims the authority to prevent US citizens from getting on an airplane. The existence of the no-fly list is a restriction on our freedom of travel and therefore to leave the country by plane. The DHS also has restrictions on both land and sea travel. We imagine that the government will not impose a no-sail list for ships, no-ride list for trains or a no-drive list for cars. However, if the government has the authority to prevent people from leaving by air, there is no reason why they cannot prevent us from leaving by other modes of transportation. So long as they use the magical phrase, "national security," the courts and the American people will likely acquiesce.

It may sound paranoid to suggest that such a thing is possible, but remember that the TSA was just a nuisance when Obama took office. Now, rather than just taking our shampoo and nail clippers, they are also taking nude photographs of some of us and groping others. When civil libertarians warned against the creation of the TSA, they were derided as kooks, but now the TSA has metastasized into an unaccountable bully. When Texas tried to rein them in, the Obama administration threatened to shut down all air travel in or out of Texas.

As far as a flight of capital is concerned, as Ron Paul rightly points out, many corporations are already moving operations overseas. As Barack Obama's experiment with socialism continues to harm our economy, this trend will likely accelerate. As this happens, our government, which already asserts the tax us anywhere in the world, will want to prevent tax dollars from escaping their grasp. So, the capital controls will become tighter in a vain attempt to feed government's voracious appetite and prop up a failing system. The Obama administration, in an attempt to increase tax revenues, is already asserting de facto authority over foreign banks. So, Ron Paul, again, has a basis in fact for what he is saying even if we choose to ignore his warnings. Hopefully, a new president with respect for capitalism will be elected and assume office before such a thing comes to pass.

We cannot imagine what the future may hold, just as nobody could have predicted the exact path the TSA would take. Yet, what we do know is that these un-Constitutional searches and seizures deprive us of our dignity. Yet, the American people are not revolting. Like the frog in the boiling pot, the heat has been applied slowly until we become conditioned to inhumane and undignified treatment. If TSA agents can fondle us with impunity and we dociley accept that abuse of power, then we are telling future generations that abusive treatment is acceptable. I do not wish to imagine what the future holds if we fail to change course.

Coping with the Slippery Slope

Life is lived on the slippery slope. As such, the strongest defense of our rights comes not from our Constitution, but from our sense of right and wrong and an ability to put principle before our immediate desired outcomes. By adhering to the moral principles underlying the Constitution, we can prevent tyranny from coming to the United States. By insisting that the President not act unilaterally, we are adhering to the principle that no one should be trusted with unchecked power. If we do not stand up for this principle, we cease to be a nation of laws and become a nation of men.

The reason why al-Awlaki should have been charged with treason and tried in absentia (or in person if possible) is not because such a thing is absolutely required under our Constitution. Just as the "interstate commerce" clause and the "necessary and proper" clause can be daisy-chained together to justify just about anything, so the president's authority as Commander in Chief can theoretically justify military action anywhere in the world.

A sophisticated lawyer may be able to justify undeclared wars in Libya and Yemen. Even so, we should not abandon the principles on which our country was founded simply because someone found a loophole. Terms like "reasonable search and seizure," "due process," "cruel and unusual punishment," etc. have always relied on subjective moral reasoning. Congress, the courts and the executive branch have striven over the years to bring objective, concrete meaning to these words. Our application of these principles should not be short-sighted and opportunistic, but transcendent of particular circumstances. The Constitution provides the framework, and we provide the substance.

By allowing President Obama to skate by, barely meeting the minimum required by the Consitution, we do a disservice to ourselves and to our country. We may be able to achieve short term tactical and strategic goals, but we nibble away at the goodness of the United States. It is easy to be frustrated by what seems like irrelevant, bureaucratic minutiae, but the restraints we place on government have historically been the genius of our great country.


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