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!
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.
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