The argument made by the Justice Department was that a US citizen has to file suit and present himself to a court in order to prove that the Government has no authorization to execute him, that he is guilty until he proves himself innocent. This decision appears to stand in stark contrast to the 5th Amendment of the Constitution of the United States, which would seem to offer multiple protections to a US citizen in this case:
The right to have a grand jury hear the case that the Justice Department brings against them, to decide if there is enough evidence to proceed with a trial. Crimes punishable by death must be tried after indictment. The Government never made its case in a court of law, instead it argued before Judge Bates that the burden of proof that Al-Awlaki should not be executed lies with him. This also appears to bring forth another aspect of the 5th Amendment, self incrimination.
The 5th Amendment states that a witness may not be forced to testify if such testimony could lead to the witness incriminating himself. Requiring a person to argue why they should not be executed without due process, instead of filing a case against such a person and arguing to a jury why this person should be executed, would certainly result in self incrimination. Another important distinction to make is that asserting your right to remain silent and refusing to testify does not imply guilt. The Supreme Court reinforced in 2001 that this constitutional safeguard exists specifically for the innocent, stating in their ruling of Ohio v. Reiner that “This Court has never held, however, that the privilege is unavailable to those who claim innocence. To the contrary, the Court has emphasized that one of the Fifth Amendment’s basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances.”[2] The common assumption of “If he won’t testify against himself, then he must have something to hide” is simply not supported in judicial case law, and the framers intention was clearly to protect US citizens from an aggressive Government.
Due Process: A person may not be deprived of life, liberty, or property without ”due process.” The Government is held to abide by the law of the land, even if the person stands accused of violating the law. The argument of “the person is accused of breaking the law of the land, so he lost the protection of the same laws” does not stand.
Since the beginning of this “War on Terror” the role of constitutional safeguards when dealing with accused terrorists has been a question that has been raised multiple times. When these questions are raised inside a court of law, the preferred tactic of the Justice Department has been to raise the issue of “national security.” The argument is they cannot answer questions, because answering them would place the United States in danger. So not only is the burden of proof on the accused, but the Government argues that it does not have to defend itself because doing so would harm national security. When the Government does give an answer, usually outside a court of law to avoid establishing case law that could hinder its operations in the future, the answers include various arguments about how constitutional safeguards do not apply to individual cases:
When news surfaced about the actions of US soldiers in Abu Ghraib, people started to question if these actions violated our laws or international laws. The argument was that since the prisoners were neither US citizens, nor held on US soil, no constitutional safeguards applied. The remaining question on whether these actions violated international law was never fully answered either.
When presented with news regarding the detainment and torture/enhanced interrogation of enemy combatants at the Guantanamo Bay Detention Camp located inside the Guantanamo Bay Naval Base the question of constitutional safeguards was raised again. This time the Government was acting inside US jurisdiction, located on land under the control of the United States Government leased from Cuba. The argument was raised that since the land was controlled by the Government, the law of the land applies and must be followed by the Government. The Justice Department argued that since the detainees were not US citizens and classified as enemy combatants, no constitutional rights exist that would protect the detainees. The mantra repeated by supporters of these actions was “if you are not American, you are not protected by the Constitution.”
Anwar Al-Awlaki was a United States citizen, and as such should have been protected by Constitutional safeguards. The main argument against giving enemy combatants the protections guaranteed by our Constitution has been the lack of citizenship. “American Rights are only for Americans” could not be used as a disqualification for Al-Awlaki. Instead the Justice Department issued a memo with the opinion that war is due process enough[3]. Instead of trying him before a court to decide if he has committed a crime worthy of the death penalty, which would be the definition of due process, it was decided that the fact that we are at war and think he is on the wrong side was enough due process to justify an extrajudicial execution (otherwise known as an assassination).
So we now have a very slippery slope. When the “War on Terror” started, the enemy was “them” and they had no rights. Then the enemy became “foreigners on foreign soil” and they had no rights. Once we were acclimated to that assumption, the enemy became “foreigners on US soil” and they had no rights. Now the enemy can be a US citizen, who has no rights, and can be assassinated at the discretion of the executive branch of our Government. Who will be the next person or group to be summarily stripped of the protections granted to them by our Constitution?
After the Oklahoma City Bombing, a terrorist attack orchestrated and executed by an American citizen, Timothy McVeigh was not assassinated. He was arrested, indicted, tried in a court of law, and then executed. Following the Fort Hood shooting, Nidal Malik Hasan is awaiting court martial for his accused crimes. After the Tuscon Shooting, Jared Lee Loughner was arrested and has been indicted for the attempted assassination of a member of the House of Representatives. He is awaiting trial, and is still considered innocent until he has been found guilty by a court of law. Here we have three American citizens who have been accused of terrorism and murder, who are given full due process as guaranteed to them by the Constitution of the United States. Anwar Al-Awlaki was accused of committing many crimes against fellow citizens of the United States, but he has never been charged with the act of taking another person’s life. The accusations against him include hateful speech, inciting violence, calling for the murder of fellow Americans, even training others how to kill Americans. And for these accusations he was executed by the CIA. It appears that if you are accused of killing your fellow citizens, you are entitled to due process in accordance with our Constitution. But if you are accused of training or encouraging others to kill your fellow citizens, you can be assassinated without any judicial proceeding at all.
Where will this development lead us? Should our Government be able to declare that US citizens who speak out against the Constitution lose all constitutional protections? What makes a citizen an enemy combatant? It appears that rhetoric may be enough, since even citizens who stand accused of murder are entitled to due process. Does speaking out against the United States and its Government meet the threshold of abandoning your own constitutional safeguards?
2
US Supreme Court Center, Ohio v. Reiner on petition for Writ of Certiorari to the Supreme Court of Ohio,532 U.S. 17 (2001). Retrieved September 30th, 2011 http://supreme.justia.com/us/532/17/case.html
3
Washington Post, Secret U.S. memo sanctioned killing of Aulaki,September 30th, 2011. Retrieved September 30th,2011. http://www.washingtonpost.com/world/national-security/aulaqi-killing-reignites-debate-on-limits-of-executive-power/2011/09/30/gIQAx1bUAL_story.html