Al-Awlaki’s Death Is NOT America’s Death (UPDATES)

Way too many times have I cringed when the religious right uses the Bible to justify evil and prejudice in our lives.

Way too many times have I been infuriated when the political right has used the Constitution to support and justify acts of war, torture and rampant violations of civil rights.

Way too many times have I been incensed when the Bush administration used Office of Legal Council (OLC) memoranda, or opinions, to justify and approve what I felt were clearly unconstitutional, illegal and amoral acts.

Today, in the wake of the killing of American-born Anwar al-Awlaki in Yemen, some Americans believe that such has been a grievous violation of our Constitution, of our judicial system, of our moral compass.

The killing by our Navy Seals of the non-American mastermind of the 9/11 attacks that massacred more than 3,000 innocent people, evoked similar criticism based on the Constitution, due process and morality.

My good friend, Robin Koerner, in an eloquent and passionate essay believes that the Obama administration violated the Constitution and trampled due process when it approved and ordered the killing of Awlaki.

He compares the killing of Awlaki to President Bush’s starting the Iraq war for false reasons and to “ten years ago…federal agents being allowed to arrest you with a self-written warrant without any judicial oversight.”

I can add many other examples in support of Robin’s contention that the Bush administration repeatedly violated our Constitution. Yet—call it naïve, hypocritical, partisan or whatever—I believe that the Obama administration did the right thing by taking out American-born, traitor-turned, bent-on-killing-Americans, declared terrorist Awlaki when the opportunity presented itself in the Yemen desert.

Who am I to make such an “authoritative” statement? No one of any significance. My opinion is far from being authoritative, expert or final.

But neither is Mr. Koerner’s, as much as I respect it.

In fact, Constitutional and legal scholars and, in this case, experts in international law who have extensively researched, analyzed and debated this and similar issues have rendered differing opinions.

Robin states that that the president “needs to go to great pains to explain to this nation how a government that can take the life of an American without due process can, even theoretically, claim to protect life, liberty and law.“

Perhaps the President will do just that. Hopefully the administration will publish the memorandum from the Justice Department’s OLC that spells out the specific Constitutional and legal basis for the killing.

But will such satisfy or, at least, mollify the critics? Probably not.

The infamous Bush administration “torture memos“ only served to inflame me and to heighten my disgust for the use of such techniques and my contempt for the Bush administration.

The books published by Bush, Cheney, Rumsfeld and their henchmen and their legacy-salvaging media tours, all attempting to justify their transgressions, only served to intensify my contempt for them and my scorn for their actions.

So, how can I Constitutionally or legally justify the Obama administration’s killing of an American traitor in a war zone without due process?

Not having all the facts, I cannot. But, just as Mr. Koerner, I can express some opinions.

It is my opinion that a traitor who joined enemy combatants intent on and committed to doing our country and our people harm, was rightly taken out before his dastardly plans could come to fruition.

It is my opinion that it would have been “nice” if al-Awlaki had been stripped of his citizenship before he was killed. Perhaps that formality would have made all the difference to the critics. Perhaps not. (Perhaps such already took place, before his killing)

It is my opinion that it would also have been nice if our military and our agents had had the luxury of taking Mr. al-Awlaki into custody in the outback of a country that lacks the capacity, perhaps even the will to capture him, and of bringing him back to a courtroom in America to face due process.

It would have been nice if such an arrest could have been arranged before his next attack on America and on innocent American men, women and children.

And it is a little more than my own opinion that there is a statute (Title 8, Chapter12, Subchapter III, Part III, Par, 1481) which states that “A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality… entering, or serving in, the armed forces of a foreign state if… such armed forces are engaged in hostilities against the United States.”

Others—some of them experts—share my opinion that the United States is at war with al-Qaeda and its affiliates; that Congress has authorized the use of military force against these enemies; that under international law and under the right of self-defense, the United States has the right to strike at enemies who pose an imminent threat, even “beyond a recognized war zone if the enemy is hiding in a country that is unwilling or unable to take action if the enemy .”

Others, such as a federal judge, ruled in a lawsuit brought last year that sought to prevent the government from targeting Mr. Awlaki that “in wartime the Constitution left it to the president and Congress, not the courts, to decide military targeting issues.”

Some may ask, did al-Awalki perform such treasonous acts “with the intent of relinquishing United States nationality”?

I don’t know. And if one wants to build a case of a “slippery slope,” of “the ends not justifying the means.” of “suspending the Constitution,” of “the death of America,” and to accuse me of being flippant for implying that a subjective part of a statute is a “technicality” when dealing with the security of our nation and our people, please have at it.

But I do find it somewhat offensive to claim that “[a] vote for Obama would be a vote knowingly against the Bill of Rights, and therefore against the very existence of basic human rights in America” and that, therefore, we should vote for a certain candidate.

And to those who may ascribe my opinions to my politics, I say, first, I am not using this issue to support or to attack any of the presidential candidates. Second, if Bush had “gotten” non-American Osama bin Laden, American-born Awalki or any other terrorists threatening our country in exactly the same way and under exactly the same circumstances as Obama has, I would have supported him, cheered him. And that’s the honest truth.

UPDATE I:

A bipartisan chorus of political and legal voices is calling on the Obama administration to release a declassified version of the Justice Department memo that provided the legal analysis sanctioning the killing in Yemen last week of Anwar al-Awlaki, a U.S. citizen.

They said that the reasoning behind the extraordinary step of killing an American cannot be kept secret from scrutiny if the public is to continue to support counterterrorism operations. Awlaki was killed in a CIA drone strike.

Read more here.

UPDATE II:

The New York Times has just reported that a secret U.S. memo made legal the case to kill al-Awlaki.

The memo found that “it would be lawful only if it were not feasible to take him alive, according to people who have read the document.”

The memo, written last year, followed months of extensive deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The memo provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine.

Read more here.