Yesterday Ryan posted an excerpt from Kevin D. Williamson at NRO on the legitimacy of targeting American citizens because of their terrorist activities:
Surely there has to be some operational constraint on the executive when it comes to the killing of U.S. citizens. It is not impossible to imagine a president who, for instance, sincerely believes that Andy McCarthy is undermining the Justice Department’s ability to prosecute the war on terror on the legal front. A government that can kill its citizens can shut them up, no? I ask this not as a legal question, but as a moral and political question: How is it that a government that can assassinate Citizen Awlaki is unable to censor Citizen McCarthy, or drop him in an oubliette?
Because I assume that Williamson wasn’t being intentionally hyperbolic, I had to read that passage several times to convince myself that I wasn’t missing some subtlety. The obvious answer to initial statement is that there is indeed an operational constraint on the executive when it comes to the killing of U.S. citizens: It’s called the Constitution.
The reason that the government can target Anwar Al-Awlaki is because he has committed treason, a crime punishable by death. Article 3, Section 3 of the Constitution defines treason and its punishment.
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 Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Congress outlines the punishment for treason in United States Code, Title 18, Part I, Ch. 115, § 2381:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
Aside from the evidence of Al-Awlaki giving aid and comfort to the enemy, he has sent a tape sent to CNN, Al-Awlaki confessed on tape to committing treason. The preponderance of the evidence is clear that Al-Awlaki has committed treason.
If you assume that the targeted killing of terrorist leaders is legitimate, then there should be no moral qualms about targeting Al-Awlaki. Also, if you assume that giving the death penalty to citizens who have committed treason is legitimate, then there should be no political qualms with putting Al-Awlaki to death for that crime. Contra Williamson, the only really interesting question is whether the executive branch can carry out the sentence for treason without first obtaining a conviction in a court of law (the Obama administration certainly seems to think so).
So to answer Williamson’s rhetorical question—A government that can kill its citizens can shut them up, no?—the reply is indeed “no.” The same Constitution that authorizes the death penalty for treason in the case of Citizen Al-Awlaki, protects the free speech rights of Citizen McCarthy. Citizens have a secure, though not unlimited, right to free speech. But there is no corresponding to constitutional right to treason.
Update: I just noticed that Andy McCarthy has provided a more detailed response to Williamson.
April 8th, 2010 | 10:05 am
This fails to address whether or not the procedure currently being enacted by the President is constitutional. This is a separate concern, one particularly worrying in this era of politicians completely ignoring the constitution. Consider health-care; completely unconstitutional, but no politician will be arrested or at least removed from the office that they’ve abused- instead they’ve got a good chance to establish their betrayal as ‘the law of the land.’
Of course, if you don’t think health-care is unconstitutional, insert something you do think is unconstitutional. The issue is still the same. Politicians should follow the correct procedure, and frankly, they should be thrown in jail far more often than they are.
April 8th, 2010 | 10:56 am
[...] This post was mentioned on Twitter by Jeremiah Reeves. Jeremiah Reeves said: Not So Squishy: Article 3, Section 3 of the Constitution defines treason and its punishment. Treason against the U… http://bit.ly/aHXs24 [...]
April 8th, 2010 | 11:01 am
President Lincoln killed hundreds of thousands of Americans in the absence of a declaration of war. The idea that the American President (due in part to his Constitutionally proscribed oath to “preserve, protect, and defend” the Constitution) has the right to employ extraordinary measures in defense of the nation is as old as the nation itself. President Obama is following in the footsteps, of Jefferson, Lincoln, and FDR.
April 8th, 2010 | 11:14 am
[...] Joe, Anwar Al-Awlaki has committed treason, and treason is a crime punishable by death. As you note, [...]
April 8th, 2010 | 12:29 pm
The question remains — Should the president of the United States (ALL presidents, not just the ones you like) have the ability to order the assassination of an American citizen? Without a trial and without even a judicial approval? I find this unacceptable, regardless of whether the particular person in question THIS TIME has actually committed treason. If he is a traitor then he should be convicted of treason in absentia and have his citizenship stripped from him. But you don’t order his assassination — because next time, it might be a different president (or even this president) and something that isn’t treason at all.
April 8th, 2010 | 12:57 pm
Gail F,
This is not a judicial question. The war power is a power given to the president and congress under the Constitution and reaffirmed through 220 years of history. The last thing you want is for these kinds of questions to become judicial questions. You would need to amend the Constitution, or continue to have the Supreme Court chip away at the power of the President, to change this. Wars were not meant to be fought be lawyers. The fact that this is even a controvery is just one more example of our nation’s drift into a legalistic, litigious society.
April 8th, 2010 | 1:44 pm
Should the president of the United States have the ability to order the assassination of anyone?
April 8th, 2010 | 4:32 pm
Mary,
Yes. As Commander in Chief, the President has the power to target specific individuals. For instance, President Reagan ordered a retaliatory airstrike on Muammar Qaddafi’s headquarters in Tripoli in 1986 after Libyan terrorists bombed a dance hall in Germany frequented by American soldiers. Under Franklin Roosevelt, Americans employed by the OSS, the precursor agency to the CIA, were in contact with some of the plotters in Germany who were attempting to kill Hitler. An executive order issued by President Ford and reissued by President Reagan prohibiting US government involvement in assassinations was revised under both Presidents Clinton and George W. Bush to allow for the specific targeting of terrorists intent on killing Americans.
April 8th, 2010 | 5:09 pm
Yes.
To say “no” is to be a pacifist.
April 8th, 2010 | 5:29 pm
I’m not a constitutional lawyer or scholar (take that admission as you will).
Carter appeals to the Constitution and the US code regarding the fact of treason. But who determines, and how, that a specific AMERICAN citizen is guilty of treason?
Williamson’s NRO post, in effect, argues that there are distinctions to be made. I, and presumably Williamson, don’t have a problem in affirming the president’s Constitutional war powers, and his (whether Obama or Bush) Constitutional authority to apply violence to non-citizen enemy combatants, in defense of the United States.
But to me it seems Carter is conflating two things: presidential war powers, and the prosecution of treason. Does Carter really want to argue that the appearance of treason, or even the “preponderance of evidence” (which Carter clearly doesn’t mean to use in a legal sense), by itself is all that the president needs to unilaterally execute an American citizen?
That’s the stuff of the paranoid style of Hollywood movie-making: ruthless, rogue presidents sending out even more ruthless men in black to do a necessary bit of wet work.
I hope the American Al-Awlaki, if he is guilty, gets put up against a wall and shot. Just not by executive order.
April 9th, 2010 | 10:53 am
If the president can order the assassination of non-citizens, he can order the assassinations of citizens. It’s not like there’s something special about citizenship for this purpose.
April 11th, 2010 | 9:26 pm
“THEY CAME FIRST for the Communists,
and I didn’t speak up because I wasn’t a Communist.
THEN THEY CAME for the Jews,
and I didn’t speak up because I wasn’t a Jew.
THEN THEY CAME for the trade unionists,
and I didn’t speak up because I wasn’t a trade unionist.
THEN THEY CAME for the Catholics,
and I didn’t speak up because I was a Protestant.
THEN THEY CAME for me
and by that time no one was left to speak up.”
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