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 declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
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.Reprisal
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?
Asylum Watch 
My thought is that the list is an excuse and a article point to! An excuse in that they can use it as an excuse to kill others that they are putting on a list of objectives. An article to point to to say, “well, you thought that it was okay to kill this person, there is no difference in another person”, in other words if it is right for one, it must therefore be right for the other! I think that I am with Ron Paul on this one and that we were wrong to use the reasoning that this government used.
Yeah.. GAWD forbid that we take out some raghead asshat that is trying every way he can to kill Americans… How silly of us… (/sarcasm)
I’m only looking for a constitutional way to deal with the Awlakis of this world, Fred. If it’s done in secret by a president to take out , as you say, a raghead asshat, what is to stop that president secretly deciding to take out a conservative blogger in Venezuela or in Texas? If this tool is necessary to defend America, I’d rather see done publicly by the Congress is all I’m saying.
Here’s what ended up passing…
http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/html/PLAW-107publ40.htm
Paul’s proposed letter is superior because it is less open-ended.
To the subject at hand and the issue you so excellently raise, I believe the following statement is inflammatory because it is imprecise:
“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?”
Plucked from the specific context of an “American” taking up arms against the US, it is indeed provocative and sure to elicit a loud and profound “NO” from any freedom-loving American.
I am not accusing you of provoking, Jim. I understand exactly where you are coming from and you are not the first to posit this question in this way.
This statement of your authorship expresses the underlying concern much better, and gives pause to supporters of the action like me:
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?
Indeed.
I still maintain Awlaki signed his own death warrant by taking up arms against the US, and the government has drawn the distinction between his active support of action against the US and Adam Gadahn’s mere propagandizing, stating that Gadahn is not a legitimate target. ( I disagree. I’d like to see Gadahn hunted down and killed like the feral anti-American pig that he is)
Having said that, I agree that we need a better legal framework than just letting the president’s lawyers unilaterally make such decisions.
The next question is, would a Letter of Marque and Reprisal be legally sufficient for a president to authorize the action that we took against Awlaki? I’m not legally smart enough to know the answer to that one.
Great post, Jim!
I was most assuredly not trying to provoke anybody. I pay no attention to what the liberal/progressives say. But I do pay attention when my fellow conservatives disagree with me. I am still comfortable that Awlaki’s death was that of a combatant. But I wondered if there was constitutional solution that satisfy those that believe this was a gross intrusion on our constitutional right to due process. Unless the movies I watched as kid were all wrong, there was a time in our history when “wanted dead or alive” warrants were issued. They were supposedly on display at any post office. I wonder how that was not a denial of due process. The concept of Letters of Marque is in the Constitution, so I don’t see why it would be illegal for Congress to issue such letters.
Jim: I was not accusing you of being provocative. I actually congratulate you on leaving the emotion behind and addressing this issue in a clear-eyed way.
Excellent article!
Thanks, my friend.
Refresh my memory… what document was used and just how did we pluck Noriega from Panama and fly him back to the USA? Just a bit of a refresher…..ATF? CIA? I trust no one. The last thing I want is a President putting a bull eye on a citizen no matter what justification. Under what rubrick.
In April 1992 a trial was held in Miami, Florida, at the United States District Court for the Southern District of Florida in which Noriega was tried and convicted on eight counts of drug trafficking, racketeering, and money laundering.
At his trial, Noriega intended to defend himself by presenting his alleged crimes within the framework of his work for the US Central Intelligence Agency. The government objected to any disclosure of the purposes for which the United States had paid Noriega because this information was classified and its disclosure went against the interests of the United States. In pre-trial proceedings, the government offered to stipulate that Noriega had received approximately $320,000 from the United States Army and the Central Intelligence Agency. Noriega insisted that “the actual figure approached $10,000,000, and that he should be allowed to disclose the tasks he had performed for the United States”. The district court held that the “information about the content of the discrete operations in which Noriega had engaged in exchange for the alleged payments was irrelevant to his defense”. It ruled that the introduction of evidence about Noriega’s role in the CIA would “confuse the jury”.[26]
It is a very slippery slope we are going down. Slippery indeed. Anyone who gets in bed with the U.S. has much to learn. Mubarak learned big time. Call me cynical today!!
You make an excellent point, Bunker. I have no idea how our government justified what they did to Noriega. From what I learned investigating Letters of Marque and Reprisal, it had to have been something else. The last time a Letter of Marque and Reprisal was used that I could find was in 1941 when one was issued to Goodyear for use their blimp off the our West coast to look for Japanese submarines.
Before a few days ago, I had never heard of a Letter of Marque/Reprisal. But there it is in our Constitution. I like it better than what our President is currently doing.
I’m with you on this one, Bunker. The U.S. government has been using people and then getting rid of them as inconvenient trifles, in the instance you provide above, and Mubarak, and also in this Fast and Furious scandal. It is looking more and more like the current administration is finding this method de rigueur du jour….more than most who have gone before. Jim is right that there needs to be somethng more clearly defined that keeps the likes of dictatorial madness at bay.
Irrelevant. Nothing pisses me off more than courts using censorship to decide what is relevant and what is not. Great comment Bunkerville. It immediately took me back to the day when defendants egregious conduct is labeled as prejudicial to their defense and thus gets ruled away. The truth is never the truth under those circumstances- it is a mere shadow of the truth.
Jim, I think this is the best post you have put together in a long time. It is informative and strikes to the heart of a government gone batshit crazy that thinks it can do anything it wants. Once again- it also reaffirmed my view that the only politician worth a shit out there is Ron Paul but gawd knows he ain’t electable. Instead we are gonna get some bag of shit central planner like Romney. Can we just have the economic collapse and get it over with? It’s like getting dragged behind a car. We’ve been circling the drain for four years with no end in sight and all the while this government usurps and steals authority and does whatever it wants. Truly a Frankenstein Government.
Excellent discussion.
To change the subject a little, how do we make sure that jihadis do not end up with American citizenship? And why, for instance, the Iranian man held in suspect of terror plot against the Saudi and Israeli embassies in DC has dual citizenship? The US should not recognize dual citizenship with the Islamic Republic.
I don’t know how we do that, Edge. As an American who has lived in another country for the last 19 years, it would be helpful to me if I could take out citizenship in the country where I live, Venezuela, but if I did, I would have to give up my American citizenship and I would never do that. Yet, I have known Brits, South Africans , New Zealanders and others that carried as many as four passports including a US passport. Why the US is not more selective in who they accept as citizens, I do not know.
I was not saddened that we took this traitor out but it does raise constitutional conserns because it has set a dangerous precedent. We have this secret panel that decides if the president can kill an American citizen without due process? And don’t forget that Joe Biden called the Tea Party terrorists, where does this end?
The issue is certainly not as black and white as I first perceived it, Steve. I think it is an issue the deserves further discussion.
I guess I’m just a slightly confused simpleton. AaA was an enemy of America. He hated us. He wanted to kill us. He was an “American citizen” on paper only. No one with any common sense thought he was just misguided or delusional. He was a serious threat. I highly doubt that any American shed a tear over his death, be it ruled an assassination or as a common military target.
I am a Conservative blogger. I really do not think I, or any of us, are on some super-secret death list on the desk of the President. No one knows who we are aside from or tax returns and social security numbers. AaA was front-page news.
The fear seems to be that somehow the gob’ment will now seek to kill all of us for dissenting against the Obama Regime or against any corrupted gob’ment organization (Congress). I simply do not see it. If you really think the gob’ment is out to get ya, then stop using the Internet, stop using your phones, and disappear into the mountains with your loved ones to await the day the brown shirts come to kill you. Cut all ties with friends and family, aside from immediate family, and erase your tracks as you go.
I myself have absolutely no issue with the killing of America’s enemies. None. AaA was an enemy of America, and to make it more personal, he would not have hesitated to kill my children. Or your children. The US Constitution is an amazing document, and it is indeed the true law of the land. Yet to preserve it and protect the adherents of it who are law-abiding and innocent, I would do what needed to be done, even if it was morally questionable. I would still sleep very well at night.
AaA was an “American citizen” as much as I am a militant homosexual Muslim extremist who eats ice cream while naked and singing the Sesame Street theme song in Italian.
AaA is dead. That is one less terrorist. Period. If indeed you are worried that one day it will be you or someone you now on the slab, killed by our gob’ment, you might be thinking a little too highly of yourself.
My .02 cents.
You are clearly much more trusting of our President than I am.
Sorry, I neglected to add:
If also the TEA Party is considered a true domestic terrorist threat, and if you have a Ron Paul sticker or a Pro-Life sticker on your car you are also considered a domestic terrorist, then what does this mean? It means we simply need to be more vigilant and stand our ground.
According to Janet at Homeland Security, I fit the “domestic terrorist profile”. Am I worried? Not at all. The truth is on my side. AaA could never say that.
From Western Hero comes this piece that cemented my belief that AaA was not an American citizen. Enjoy.
See original article here: http://westernhero.blogspot.com/2011/10/awlakis-dead-justice-served.html
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Loss of nationality, also known as expatriation, means the loss of citizenship status properly acquired, whether by birth in the United States, through birth abroad to U.S. citizen parents, or by naturalization. As a result of several constitutional decisions, §349(a) of the current Immigration and Nationality Act (“INA”) provides that U.S. nationality is lost only when the U.S. citizen does one of the specified acts described in INA §349, voluntarily and with the intent to give up that nationality.
“taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof after having attained the age of eighteen years.”
“entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serves as a commissioned or non-commissioned officer;”
“performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship.”
“committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of Title 18, or willfully performing any act in violation of section 2385 of Title 18, or violating section 2384 of Title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.”
I think Al-Awlaki personally made his position quite clear. He hasn’t been an American citizen for years and it doesn’t take a court or judge to formally renounce your citizenship. It can occur automatically based on your words, writings, or actions.
You are touching the tip of the iceberg and the rabbit hole goes down and back a long, long way. I don’t know how many ex-CIA, government officials, and corporate executives have to speak out before people realize that our government is being run by lawless criminals. They they use the fact that the Bill of Rights stops at the border to perpetrate crimes that would nauseate Americans.
Check out John Stockwell, former head of the Angola Task Force who wrote about the CIA’s secret wars, the Church Committee investigations, John Perkins who outlines in great detail how the Banking Cartel dominates the smaller nations using the IMF.
Most people have absolutely no clue what is going on in our name.
Which President was it that said if the people learned out the banking system really works there would be a revolt by morning?
It was said by Henry Ford, a man who most people don’t realize was a big-time anti-semite. Adolph Hitler kept a life-size portrait of Ford next to his desk. Henry Ford published a book called The International Jew- The World’s Foremost Problem. Ford bequeathed his fortune to the Ford Foundation, which is arguably the most anti-American institution in the country. It funded feminism, La Raza, gayness, pro-commie, and anything and everything that destabilizes this country. Good grief, I’ve got information overload!
“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.”
On the other hand, Jim, one reason why it’s more dangerous is precisely because of C-I-C’s like LBJ, Carter, Clinton, and Obama, people that shouldn’t have had the authority to change the urinal cakes in the Pentagon’s men’s rooms, let alone have anything to do with protecting America’s vital interests. You get what you pay for, & the electorate has certainly paid and continues to pay the price for those wretched selections.
Good point, Bob. part of the problem is Politics became a career instead of a short term duty.
Talking about urnial cakes at the Pentagon, you guys do realize that Anwar Al-awlaki was invited to the Pentagon after 9/11 as a moderate Muslim for a special luncheon.
I’m not sure that we want bounty hunters and mercenaries doing our work for us overseas. Back in the day, this caused as many problems as it solved, which is one reason we used the Marines to cut down the Barbary pirates.
From the stand point of common sense, this guy simply either had to be captured or killed, and if we had sent in a team to hunt him down and he had resisted (which would have been expected), then his death would have contained no legal issues. The problem is that Obama, like Clinton ad so many previous presidents, wants a pain-free way to solve our problems.
Legally, this is a bad precedent which could lead to all kinds of slippery slope problems later on. It would have been better to simply ignore the fact that he was an American and treat him as an enemy at war with us, and not set such a legal precedent or set up a group to decide which Americans should be killed.. Many lawyers have suggested just that–that we did not have to even consider his nationality, as he was an enemy combatant. There was no need for a legal determination in this. Now with a legal determination we have the danger of lawyers trying to find loopholes, deciding military matters, and drawing up kill lists. Not good. It makes it a matter of law and not war.
Thanks for the excellent comment, John. It is indeed a slippery slope we are on. I don’t know what the answer is; but I know I don’t like a single person making these kinds of decisions in secret. This time it was a dirt bag terrorist. But the idea of what constitutes a terrorist is very subjective.
One thing i think should be said is that at least in the west you have the freedom to protest, argue, rail and defend this. In many other parts of the world, governments snuff out life and you don’t get to say anything about it, least of all hold anyone accountable.
Very true, MK. We must be vigilant always or we can lose those freedoms without even realizing it until it is too late.