The debate over the killing of Anwar al- Awlaki as to whether his rights as an American citizen were violated by the President’s order to take him out or was he a combat victim in the war against terrorism has subsided. So now maybe it is time to revisit this issue.
The debate within our conservative-libertarian community was really excellent. Sentimentality played no role. The arguments were based on logic and the Constitution. I came down on the side that Awlaki was a victim of combat at the time of the debate. However, with the benefit of time to reflect, there is one argument from the other side of this issue that continues to resonate in my head and is the subject of today’s post and that is: “Do we really want a secret NSA panel making up a list of Americans to be put on a kill list for the President to approve?”
We who came down on the side that says Awalki’s death was that of a combatant must ask ourselves; if that is true, why was the list necessary and why did it require the President to sign off on it? That such list exist I find very unnerving. This is another example of usurption of power by the Executive branch that is not supported by the Constitution. To me it is part and parcel to the usurption of the power to declare war by the executive branch that dates back to the Korean War. Congress and by extension We The People have allowed this usurption of power for presidents to unilaterally declare war. And now we learn that a president can even declare war against an US citizen. We must ask ourselves where this creeping usurption of power will stop?
No one should be mourning the death of Awlaki. What we should be mourning is the death of our Constitution; the death of the separation of powers that are dictated by the Constitution.
The Constitution clearly deposits the authority to declare war in the Congress and not in the Executive branch. Yet the last time Congress ever exercised its power to declare war was in December of 1941.
It has been argued, with merit in my opinion, that the modern world is a much more dangerous place than it was in the days of our Founders and, therefore, the country’s Commander-in-Chief needs more flexibility to protect the interests and lives of Americans; i.e., waiting for Congress to declare war could be very dangerous.
In 1973, Congress passed the War Powers Act to give the Commander-in-Chief the flexibility they thought he needed. this act is surely unconstitutional in itself and should have been done by amendment to the Constitution. Be that as it may, until it is challenged in the courts, it is the law of the land.
So, since 1950, presidents have gone to war without congressional approval as required by the Constitution. Since 1973, president have, at least abided by the War Powers Act and have gotten Congressional approval to make war until our current president. President Obama, by evolving us in the war on Libya, has not only ignored the constitutional power of Congress to declare war, he is the first president since 1973 to not abide by the War powers Act. And now he has gone so far as to declare war on an American citizen.
Where will this trend end? What does this mean to the right of due process? Should we really take comfort from the fact that Awlaki was a terrorist and deserved to die? do we really want any president, much less this President, deciding in secret which Americans are terrorist and must die? maybe the question we really need to address is: has the advent of terrorism created a new kind of danger that requires extra ordinary measures in order to protect Americans? If so, should this authority rest with the Executive branch or with Congress?
Interestingly, our Constitution does provide a way to deal with terrorism. You see, terrorism has been around for a very long time. In the days of our Founders the word for “terrorism” was “piracy” and our Founders included a clause in the Constitution to deal with terrorism and the power to deal with terrorism was vested in the Congress and not in the Executive branch.
Please read Article 1 Section 8 of the Constitution and you will find this line under the Powers of Congress:
To save you time, here are what the two links say:
Letter of Marque
Archaic. A letter of marque was issued by a nation to a privateer or mercenary to act on the behalf of that nation for the purpose of retaliating against another nation for some wrong, such as a border incursion or seizure.
Archaic. An act taken by a nation, short of war, to gain redress for an action taken against that nation. For example, seizing a ship in retaliation for a seized ship.
The letter of marque and Reprisal may not resolve everyone’s concerns over the right of due process; but, at least, it is Constitutional and it does vest the power with Congress and not the Executive branch and that alone gives me some comfort.
Interestingly enough, I came across a radio interview by Hugh Hewitt with Rand Paul where Hewitt was asking Rand paul about his father’s positions on terrorism. In that interview, Rand suggested that his father, Ron Paul, probably would not have had a problem with the killing of Awlaki if it had been done under a Letter of Marque and Reprisal.
You also may not be aware that Ron Paul, immediately after the attacks of September 11, 2001, introduced in congress a bill that would have given President Bush a Letter of Marque and Reprisal to go after the terrorists behind the 9/11 attacks. Here is the pertinent part:
(a) The President of the United States is authorized and requested to commission, under officially issued letters of marque and reprisal, so many of privately armed and equipped persons and entities as, in his judgment, the service may require, with suitable instructions to the leaders thereof, to employ all means reasonably necessary to seize outside the geographic boundaries of the United States and its territories the person and property of Osama bin Laden, of any al Qaeda co-conspirator, and of any conspirator with Osama bin Laden and al Qaeda who are responsible for the air piratical aggressions and depredations perpetrated upon the United States of America on September 11, 2001, and for any planned future air piratical aggressions and depredations or other acts of war upon the United States of America and her people.
(b) The President of the United States is authorized to place a money bounty, drawn in his discretion from the $40,000,000,000 appropriated on September 14, 2001, in the Emergency Supplemental Appropriations Act for Recovery from and Response to Terrorists Attacks on the United States or from private sources, for the capture, alive or dead, of Osama bin Laden or any other al Qaeda conspirator responsible for the act of air piracy upon the United States on September 11, 2001, under the authority of any letter of marque or reprisal issued under this Act.
(c) No letter of marque and reprisal shall be issued by the President without requiring the posting of a security bond in such amount as the President shall determine is sufficient to ensure that the letter be executed according to the terms and conditions thereof.
Food for thought anyway. Maybe Congressman Paul has hit upon a more cost-effective way to wage certain wars. Again, I like, at least, that it is the Congress that hast to act and not the President alone.
Well, that’s what I’m thinking. What are your thoughts?