Not So Squishy

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.