Yes, Joe, Anwar Al-Awlaki has committed treason, and treason is a crime punishable by death. As you note, the constitution is explicit in this regard. But in the chunk of Article 3, Section 3 that you cite, something else is also quite explicit:
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.
Now I realize that anyone watching CNN could be considered “witnesses to the same overt act” of Al-Awlaki’s treason. (Whether you could find two people actually watching CNN—now that is a completely separate question.) But the point is that no one has given testimony—that is to say, there has been no trial. And, while Al-Awlaki has certainly confessed to treason, he hasn’t done so in an open court. So, Joe, while I agree with you that the “preponderance of the evidence is clear that Al-Awlaki has committed treason,” I’m still uncomfortable with the idea of “convicting” Al-Awlaki without even the attempt to satisfy due process. As Americans, that’s something that all of us, including Al-Awlaki, are guaranteed by the Fifth Amendment.
April 8th, 2010 | 11:47 am
While it may be true that a criminal charge of Treason is appropriate for a citizen who has taken up arms against this country, can we not also attribute to Awlaki the ancient designation of Hostis Humani Generis given that he is acting outside of the rules of war? And can we not also say, having made himself an illegal combatant, that his actions make him a legitimate military target?
Should he be captured maybe his citizenship counts for something but, while at large he poses a threat that can only be dealt with in a military manner. A hellfire missile fired from a Predator Drone seems an appropriate and effective military response.
April 8th, 2010 | 12:48 pm
Advocates of a robust execution of the War of Terror should be applauding the Obama administration for placing an American citizen, Anwar al-Awlaki, a radical Islamic cleric, on its targeted killing list. This never happened during the Bush years, for all of Dick Cheney’s tough talk, and represents a rejection of the views of those who approach the war in a legalistic fashion.
The current debate over these issues would be enhanced by an understanding that expansive notions of presidential power, particularly in the national security arena, are as old as the American Constitution. The authors of The Federalist Papers argued for an “energetic executive” characterized by “decision, activity, secrecy, and dispatch.” Thomas Jefferson’s conception of executive power would have inflamed the editorial writers at The New York
Times: “on great occasions every good officer must be ready to risk himself in going beyond the strict line of the law,” and he added that there were “extreme cases where the laws become inadequate to their own preservation, and where the universal recourse is a dictator, or martial law.” Lincoln killed hundreds of thousands of American citizens and suspended habeas corpus in the absence of a declaration of war, while Teddy Roosevelt derided the view that the president could not act “unless he could find some specific authorization for it. My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded.. I did not usurp power, but I did greatly broaden the use of executive power.” Franklin Roosevelt created military tribunals for Nazi saboteurs, who were tried and executed in rapid fashion. Captured during the second week of June, 1942, six of them died in the electric chair by August 8th, including one who was an American citizen, while the latter’s parents were convicted of treason for not turning their son into the authorities and ultimately deported to Germany. At the same time the territory of Hawaii was subjected to a form of martial law not seen since the Civil War.
No one endorses an “imperial presidency,” but a presidency that energetically executes its constitutional prerogatives and adheres to the practices of its predecessors is not only constitutionally sound but capable of conducting an effective war against those who have carried out attacks against the United States. Wielding executive power, never a vocation for the pure and fainthearted, is far more preferable to war conducted by lawyers.
April 8th, 2010 | 1:45 pm
This makes more sense to me than treason. After all, most soldiers are not legally guilty of anything.
April 8th, 2010 | 1:51 pm
Well said, Ryan.
Steve, your main paragraph doesn’t attempt to demonstrate that previous presidents such as Lincoln and FDR were acting within their constitutional perogatives, and it seems like those presidents ignored the constitution. If you want to say that our history justifies disregarding the constitution, fine, but don’t pretend that historical practices become constitutional by virtue of being historical.
Herkybird, I’m ignorant of the ancient designation of HHG – has the constitution ever been interpreted to include it? If not, are you suggesting that the constitution should be interpreted with the aid of foreign precedent?
April 8th, 2010 | 2:20 pm
Steve, your Jefferson quotation begs the question, because I would think it is debatable that we are currently in such an extreme situation respective to the war on terror that our laws have become inadequate to their preservation, so that a recourse to dictatorial powers is the only way to vigorously prosecute it. I don’t believe our current situation in any sense compares to the conditions that obtained in either the Civil War or WWII, and even in those cases I do not agree that unconstitutional actions by Lincoln or Roosevelt were justified, nor did they significantly affect the outcome of either conflict.
April 8th, 2010 | 3:50 pm
And one other point:
In the debate here over Obama’s targeting of Awlaki for assassination, I believe we should also consider the extent to which this particular person is being targeted as much for political reasons as for those of military necessity. That is, it would be a feather in Obama’s “tough guy” cap to be able to say he had taken out the radical cleric who has been associated with the Ft. Hood shooting and the Christmas Day airliner bombing attempt. It would no doubt improve the opinion of this administration among those who advocate for an all out response to terrorism. Indeed, it seems to have already had this effect on certain posters here. It will play well in both of the upcoming elections.
And so we are confronted with the question of whether this action is legally and morally justifiable when its primary benefit is to provide political advantage of one party over another. Because as odious a character as Awlaki undoubtedly is, is he really such a threat to our nation that we should set aside all the considerations that have been raised here in order to kill him? Especially when the most likely means of doing so is through the use of the aforementioned (and appropriately named) Hellfire missile? In addition to dispatching Mr. Awlaki it is also highly likely to kill and injure a number of people who may be guilty only of being in the wrong place at the wrong time. But I suppose because we are at war, we must steel ourselves to the inevitability, even the necessity, of taking the lives of innocent people to accomplish our goals.
April 8th, 2010 | 3:54 pm
John and Steve W,
Lincoln and FDR were not “disregarding” the Constitution. The presidency, unlike the other branches of government, is bound by the Constitution to “preserve, protect, and defend” our founding document. Lincoln did not believe that he was “ignoring” the Constitution; in fact, he was preserving it. The Commander in Chief clause, the clause requiring him to “take care” that the laws are faithfully executed, and his constitutionally mandated oath required him to suppress a rebellion that rendered that “sacred” document moot, and that threatened to destroy the union. To paraphrase President Lincoln, the Constitution is not a suicide pact. Those who are disregarding the Constitution are those who assume that foreign born terrorists are entitled to due process, and that American born terrorists who are engaged in treason and fomenting attacks on their countrymen from a hut in Yemen are somehow entitled to the same rights as you or I.
Finally, to claim that Lincoln’s actions did not ‘significantly’ affect the outcome of the Civil War is hard to take seriously . . . As for today’s conditions vs. the Civil War or WWII, I would simply note that today’s enemy abides by no rules of war, and that the threat, while dispersed, is far more insidious.
April 8th, 2010 | 4:26 pm
But we don’t want to convict him, we want to send a patriot missile down his pie hole because he’s actively engaged in violent, subversive activities, much as any red-blooded founder would have done to old friend Arnold (accounting for differences in technology).
April 8th, 2010 | 4:39 pm
Your post begs the very question, whether Al-Awlaki is due any process as an enemy combatant (in the broad sense) residing in a foreign land merely because he’s an American citizen. There’s reason to believe he isn’t. Would there be a violation of due process were he shot carrying a weapon against U.S. citizens? Well, you say, he is targeted by a missile, not an M-16, and there is no ongoing combat in the traditional sense. So, we have to send our boys down into the hills of Afghanistan to play rough and tumble with some jerkwater, sworn enemies of this land, risking the death of our loyal citizens, to capture an enemy because he was born here? Or, more likely, not bother? For an argument that birthright citizenship as a basis for constitutional protection needs rethinking, see John C. Eastman, BORN IN THE U.S.A.? RETHINKING BIRTHRIGHT CITIZENSHIP IN THE WAKE OF 9/11, 42 U. Rich. L. Rev. 955 (2008).
April 8th, 2010 | 5:56 pm
[...] I second Ryan on this. I am no legal scholar, but it seems to me that, technically, he is not guilty of treason [...]
April 9th, 2010 | 11:00 am
It almost seems as if some people consider US citizenship as equal to baptism – eternal and irrevocable.
I don’t think so. If people can consider themselves as “former Catholics” by simply not going to church any more, then certainly a person can renounce his citizenship by choosing to participate in enemy action against his birth country. It almost seems as if you want him to go to the nearest embassy raise his right hand and solemnly swear that he is no longer a US citizen. I think he has effectively done that by his speech and actions.
Actions speak louder than words.
April 9th, 2010 | 11:02 am
Of course…by the logic of my previous comment, he’d no longer be guilty of treason – just an enemy combatant.
So take your pick.
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