Fundamental Rights of American Citizens

Here’s a sentence from a new blog I’ve begun to read regularly: “National Intelligence Director Dennis Blair confirmed in Congressional testimony that ‘Being a US citizen will not spare an American from getting assassinated by military or intelligence operatives overseas if the individual is working with terrorists and planning to attack fellow Americans.’ “ [ see http://blog.sustainusrestoreus.com/2010/02/11/our-most-sacred-right.aspx ]
An account of the testimony in more detail is at http://www.washingtontimes.com/news/2010/feb/04/permission-needed-to-kill-american-terrorists/

This is not merely hypothetical. The Washington Times story indicates that Obama in fact gave such authorization: “... disclosed President Obama had personally authorized a Christmas eve drone attack against Anwar al-Awlaki, a U.S. citizen in Yemen who is chief cleric for the terrorist group al Qaeda in the Arabian Peninsula (AQAP). Al-Awlaki is thought to have survived the attack.”

For completeness, note that this fellow is a bad guy: “Al-Awlaki was in contact with Umar Farouk Abdulmutallab, the Nigerian who tried and failed to blow up a Northwest Airlines flight on Christmas Day... Al-Awlaki was a former imam at a Falls Church, Va., mosque where Maj. Nidal Malik Hasan, the officer accused of killing 13 of his fellow service members at Fort Hood on Nov. 5, is said to have attended sermons and sought his advice over e-mail.”

I wonder from where Obama and Blair can claim to have such power? Perhaps from the authorization for the War on Terrorism? Here’s the relevant paragraph from the Congressional joint resolution in the War on Terrorism: “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Or from the Treason clause of the Constitution ? Article III, Section 3. 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.

To understand the nature of this claim of power, let’s first explore two extreme cases, then the more general situation.

Case A: Suppose a naive American citizen is known to be simply riding in a vehicle with Osama bin Laden [cf. John Walker Linde]. Does his presence act as a shield against any drone missile strike upon bin Laden ? Nope, that vehicle is a legitimate combat target. He’s collateral damage.

Case Z: Suppose an American citizen is carrying arms in an assault on an American outpost in Afghanistan. Can a US Army sniper take him out ? Yup, no problem. Again, he’s in a combat zone actively working with the Enemies of the US making War on US forces. Afghanistan and its Taliban sheltered Al Qaeda. They are legitimate targets.

Notice the similarity in Cases A and Z: the American citizen is in the combat area of operations and is connected (innocently or not) to Al Qaeda or its then protectors, Afghanistan and its Taliban.

Treason has very, very specific requirements in the Constitution put there due to the huge abuses by monarchs in Europe. The founders knew about those and wanted to prevent such under the US Federal government. Not even John Walker Lindh was convicted of Treason. And if the “terrorist” is NOT connected to Al Qaeda, then the War Resolution does not apply. There are LOTS of terrorists and terrorist groups not connected to Al Qaeda.

What about Alwaki ? Let’s accept the press accounts for the sake of analysis. He wasn’t in Afghanistan and wasn’t carrying arms. The government says he’s active in Al Quada. The Treason clause seems to apply as he is “adhering to their [US] Enemies, giving them Aid and Comfort.” But that Section has specific requirements to prevent abuse: “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 War on Terrorism Resolution also seems to apply, IF he truly is IN the organization known as Al Qaeda. IF Alwaki came to the US or could be brought here, there is no doubt but that a trial for Treason would be correct. If he’s not, then perhaps the combination of the two makes the attack to kill him in Yemen with a missile strike proper. But you can see this case goes down a risky path. The actual facts matter, and without a trial or hearing, can one be sure of the facts ?

If the specific case does NOT fit either of those two grants of power, then the Fifth Amendment must apply: The Fifth Amendment says in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; ... nor be deprived of life, liberty, or property, without due process of law ...”

US Citizenship does not diminish when one goes abroad. This was settled definitively after the Civil War in connection with other nations’ claiming naturalized US citizens born in England, for example, as still British citizens and subject to British law regarding treason. All our rights with respect to the US government continue in undiminished anywhere. There is no added constitutional power over US citizens when they are in foreign lands.

“ In ancient times, being a Roman citizen guaranteed a man certain rights; Saul of Tarsus, also known as Paul, used those rights to protect his life on several occasions. Should being an American citizen give one any less protection? “ {from http://blog.sustainusrestoreus.com/2010/02/11/our-most-sacred-right.aspx ]

What was true for Rome and Roman citizenship is true for the US and US citizenship.

Cicero’s great work, De Officiis (On Moral Obligations) has as its essential theme that “no immoral act can ever be expedient”. [from Famous Romans, CD lecture course from The Teaching Company, Notes, Part 2, page 10].

In the Bolshevik Revolution, immoral killing that was thought to be an ‘expedient’ way to defend the revolution and Bolshevik government corrupted the persons in power and led to a culture of death and oppression. The firsthand account of Angelica Balabanoff documents this. See her “My Life as a Rebel”, a recent Book of the Week. She knew Lenin and Zinoviev before and after the revolution and was a Bolshevik herself. The culture of using killing as a short term ‘expedient’ eventually led to Stalin and the horrors of his regime. The “Star Wars” metaphor applies: Going down the path to the dark side is very dangerous. In the long term, the ‘expedient’ killing destroyed the revolution as its Socialism became Fascism. Similar ‘expedient’ killings occurred in the French Revolution leading to disaster for France.

The US is not in a revolution – it’s condition is a polar opposite. Does that make apparently ‘expedient’ measures less risky ? Or even more questionable ? When chief 9/11 terrorist Osama bin Laden and many of his chief lieutenants still alive and operating, why are the rights of US citizens being diminished ? If government is failing, then correct that problem: get Osama bin Laden first. Then assess the situation. Otherwise government’s OWN failures are being used as an excuse to reduce citizen’s rights. That is not acceptable.

As I’ve argued elsewhere [this blog, October 27, 2009], the world is not absolutely 100% in one state: almost all situations require “some A and some B”. Aristotle similarly argues in Nichomachean Ethics that every virtue is a point of excellence between two extremes (A and B). In this situation, simply killing any person deemed a “terrorist” anywhere is one extreme (A); going purely by US criminal law standards is another extreme (B). The correct action – both moral and expedient – is likely a combination of A and B, somewhere between the two extremes.

Secret assassination orders on US citizens abroad is a very, very dangerous path. We’ve experienced unconstitutional, illegal assassination orders in the US in recent decades. Usually the persons receiving such illegal orders disobey. But not always. We must carefully find the optimum point of virtue to defend the freedom of the nation and its people without losing our liberty in the process. And once found, we must adopt it as a habit and process.

Word of the Day

“Expedient” – adjective & noun [$10 regarding precise definition]
Expedient means (adjective) 1. advantageous; advisable on practical rather than moral grounds; 2. suitable, appropriate; (noun) a means of attaining an end; a resource.
Sentence: “Cicero argues that there is ultimately no dichotomy between expediency and morality.” op cit.