The Fourteenth Amendment states that “no person shall be deprived of life, liberty or property without due process of law.” We should all take a moment to stop and savor every word in this magnificently terse sentence, not just for reasons of personal self-gain in the legal realm, but for general individual enlightenment, and appreciation of the American Constitution. Seldom in history have two words in tandem held as much sway as do the words “due process”. It is something the government owes us if it intends to take away our life, liberty, or property, and if it fails to meet this burden, its actions are nullified by the courts.
Due process, however, does not always mean that you get a trial in front of an Article III court. This is as true in criminal matters as it is in administrative procedures. Sometimes, the restrictions imposed by time, limited resources, and public safety, require that the state act before one has the opportunity to be tried by one’s peers. For example, police are authorized to use deadly force on a gunman if he poses an imminent threat to officers or bystanders. By extension, one might argue that the threat posed by certain dissidents, namely members of al-Qaeda, makes it impractical to serve said dissidents with traditional notice (i.e. a summons compelling them to appear at a municipal or federal district court) before meting out justice. The attacks of 9/11 demonstrated that al-Qaeda is willing to employ unprecedentedly barbarous tactics in order to attain its aim of a establishing a caliphate. Therefore, those who are opposed to the use of drones have a moral duty to propose a feasible alternative course of action, because it does not suffice to say that drone strikes are “unconstitutional” on account of their unprecedentedness. Since we are engaged in a fight to the death against an unpredictable and deadly enemy, whose influence stretches across the globe, and reaches into some of the most geographically and economically desolate places, the U.S. needs a weapon that can quickly and discretely enter such regions, while minimizing the likelihood of U.S. military casualties.
Drones are fairly new to the front lines. Hence, requiring the government to rely on historical precedent to justify their usage is unreasonable. Requiring them to cite precedent for the state-sponsored killing of defectors, and committers of treason, however, is not unreasonable. State-sponsored actions of this kind are not particularly hard to find in the history of the Anglosphere. For example, there was the Cold War era execution of Julius and Ethel Rosenberg, a couple that the U.S. government suspected of carrying out espionage on behalf of the Soviet Union. A more salient example, however, can be found in the aftermath of WWII, when the British hanged American citizen William Joyce for high treason. The reason for Joyce’s sentence and execution was that, at the behest of Joseph Goebbels, Joyce had broadcasted Nazi propaganda via radio, encouraging British soldiers to defect and fight under the banner of the swastika. Fast forward nearly seven decades, and we see a similar case with the American-born al-Qaeda affiliate, Anwar al-Awalaki, who performed radio broadcasts in Yemen encouraging the murder of innocents in the name of Islam.
Author and Vanity Fair columnist, Christopher Hitchens, wrote two great articles for Slate Magazine on the al-Awlaki affair. One is titled “Citizen Enemies” and the other is titled “Lord Haw Haw and Anwar al-Awlaki.” In those two articles, Hitchens argues that al-Awlaki’s broadcasts were tantamount to incitement and treason, and that the scope of al-Awlaki’s orders to kill were much greater in breadth than Joyce’s ever were. What’s more, Hitchens contends that al-Awlaki walked Major Nidal Hassan of the 2009 Fort Hood Massacre “through all the stages that supposedly qualified [Hassan] to declare lethal holy war on his colleagues.” Thus, in a sense, al-Awlaki surrendered his citizenship by aiding and abetting the enemy.
One key distinction between the Joyce and al-Awlaki cases is that Joyce- or “Lord Haw Haw”, as Hitchens referred to him- at least had the benefit of a receiving a trial subject to public scrutiny. The Obama administration has kept the trials of the people on its drone “kill list” wholly clandestine, which is (at least from the American vantage point) perhaps the most horrific aspect of this entire ordeal. It makes sense that the U.S. government would not want to tip off its enemies abroad by holding a publicized trial every time it chooses to take one of al-Qaeda’s or ISIS’s pawns off the chessboard. But if justice was done, why try to cover it up postmortem? Why not make it public record once the deed is done? That way the public can stay apprised as to what its government is up to abroad, and there can hopefully be some accountability, and assurance that the government is in fact learning from its mistakes. I can think of no excuse for the twisted logic and contorted legal arguments the Obama administration has produced when faced with these questions.
Some might argue that al-Awlaki should have been arraigned for his crimes, but seeing as he was hiding in Yemen, and evading even the Yemeni government’s call to reveal what business he had in their country, he was clearly outside of the United States’ legal jurisdiction. He was not, however, outside its military reach. Thus, my original question to those who oppose al-Awlaki’s execution stands: what would you have done different? Should President Obama have sent Special Forces into Yemen in order to apprehend al-Awlaki? Would it have been worth risking the lives of highly trained soldiers, and likely setting off a firestorm of accusations that the U.S. disrespected Yemen’s sovereignty by putting boots on the ground and, therefore, “invading” Yemen? And if the answer to the latter question is “yes”, does that mean the U.S. must carry out such high risk operations even when the accused is not an American citizen? Finally, if the opponents of al-Awlaki’s execution say “no” to both drones and Special Forces extradition ops, does that mean their solution is to just let al-Awlaki and his ilk be? In other words, is their contention that once a purveyor of terror has moved outside the boundaries encompassing law abiding nations the suspect has successfully evaded justice altogether?
If their answer is “yes” to the latter, I hope they sit in as much disrepute with the reader as they do with me.
By John Albarran