The Founders' principle that all men are endowed by their creators with certain unalienable rights has, in its implementation, been limited to those men who are fortunate enough to find themselves within U.S. borders, or holding the magical status of "citizen." The Constitution doesn't apply to foreigners abroad, but it applies to citizens wherever they are.

No person shall be … deprived of life, liberty, or property, without due process of law …

Last week Anwar al-Awlaki was deprived of life without due process of law.

But Anwar al-Awlaki was, they say, a traitor. Awlaki had, they say, forfeited his right to the protections of the Constitution. Awlaki's life was, they say, forfeit when he made war on the United States and supported its enemies. So the Constitution doesn't apply.


O! If only the Founders had considered the possibility that a U.S. citizen might make war on the United States, or support its enemies!


They did:

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.

Treason is the only offense one of the few offenses mentioned in the Constitution, and accused traitors are given more protection than ordinary criminals, not less.

So maybe the Constitution is wrong. Maybe traitors should be subject to summary execution on the President's word. Those who think so, or otherwise support the government's killing of Awlaki, should ask themselves, "what is it, exactly, that stops my government from doing the same to me?"

Well, he was reportedly involved in acts of terrorism. Yes, reportedly. The government could just as easily report to us that you were involved in acts of terrorism, and provide "proof" that would hold up in the media and get your neighbors to celebrate your murder.

But he was not in the United States. Do you lose your right to life, liberty, and property when you cross the border? "Hey, whatever happened to Joe?" "He went to Toronto and the U.S. Government whacked him with a Hellfire missile." (That's okay, though, because he was reportedly involved in acts of terrorism.)

Well, he "repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda." That may be so. So what? There are many nutjobs out there—and some in the U.S.—preaching murderous agendas. That's never been grounds for execution in the U.S. (and for good reason—martyring the speaker gives the words more power; see, e.g., Jesus). You're certain that you'll never say anything that the executive branch of some future government will feel is so inappropriate or threatening that they must silence you? I'm not at all certain of that; I'd rather have at least a nominal judiciary check on the government's ability to silence people.

We're at war. No, we're not. The war on terror is a war only metaphorically, not legally. The rules for knocking off U.S. citizens might be different during wartime (Abraham Lincoln suspended the right of habeas corpus in 1861), and that might be constitutional (the Supreme Court found Lincoln's suspension of habeas unconstitutional, but the Supreme Court doesn't have an army). But when we're not at war we have to either follow peacetime rules, or make another exception.

An exception is called for. And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? The president made an exception to the Constitution on his own for Awlaki's sake. What's to stop him from making one for you?

I trust the President. Do you trust the next one, and the one after that? Because the power that this one has seized is going to be available to every president from now on, both in the specific case (extrajudicial executions) and the general (making up exceptions to fit the situation).

It shouldn't be hard for anyone to think of people whom they wouldn't trust with the power to make up the rules as they go along—look no further than the people angling for the job right now.


18 responses to “Reprisal”

  1. This is one of the best short essays on the subject I’ve read. I’ve posted it to my Facebook account — which is the ultimate seal of approval. Around my office, anyway.

    Brad Frye

  2. I would hope that the American Bar Association would take a stand on this. I don’t know how much a defence attorney pays in dues to them, but if they do nothing you might consider switching to the Teamsters. Just 15 minutes might get you 15% or more in savings. After all, that “citizen” was never given the opportunity to hire one of you, to defend him. It’s in everyone’s best interests that your “turf” is protected. Or, Justice will become an Atari, with a yellow and a red button to push, marked “Innocent” and “Blast him”.

    Thanks Mark for posting this. I hope to read further comments from your fellows regarding this instance and what it portends. Ric

    • How much does this defense lawyer pay in dues to the ABA? Nothing. Never have, never will. Only about a third of lawyers are ABA members, and I’ll bet that most CDLs aren’t.

  3. This essay should be called “Why You Should Not Support the Government’s Killing of a US Citizen in a Foreign Country Just Because He Seems Like A Bad Guy…For Dummys”. Good work.

  4. Good post, made me think. Makes me wonder if our version of ‘implied rights’ (as opposed to the guarantee or rights in a Bill) is perhaps a good thing, as we don’t have to worry about ‘executive exceptionality’ abrograting them. Rule of law is going out the window it seems, even as a concept. Scary stuff.

    • Mark, I think the problem is that the law—whether implied or explicitly guaranteed—is binding on the executive only as far as the executive (which has the guns) and the legislature (which has the money) wants it to be.

      Maybe a well-armed judiciary would help

  5. The principle stands just as you describe Mark; it’s a big, wide Rubicon that’s just been crossed and it scares the hell out of me.

    He’ll be just another in a coming series of Emmanuel Goldsteins that started with bin Laden. Panem et circenses. The Running Man.

    What worries me is the publik skool masses’ reaction: silence or celebration. They don’t get it.

    On another note–do you really think he’s dead? He’s been “killed” before, such as in a Yemen airstrike in 2009. ‘Twould be a terrible loss for the CIA; he’s been a valuable asset.

    • At some point we have to acknowledge that when we’re talking about our government’s actions, we may be talking about a work of fiction (when John Wilkes Booth was killed, the official story was that his body had been disposed of at sea). But when the government claims, in a work of fiction intended by the government to be taken as fact, that it has crossed a certain line, it might as well have done so.

  6. Treason is the only offense mentioned in the Constitution

    Breach of the peace, counterfeiting, piracy and bribery are in there too.

  7. Matt, if someone were to literally print bogus money, in the form of stocks and shares based on derivatives, robbing the general public while doing so, and paid members of congress fees in order to reduce restrictions that govern such activities, wouldn’t that be (GASP!) treasonous? Yet, I haven’t heard of any Hellfire missiles landing in or around Wall Street. I guess it’s the “towel thing” that makes the difference between friend/foe. Ric

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