On Sep 30, 2010 American drone attacked a car in the south of Yemen with four Al-Qaeda members inside — Anwar al-Awlaki, Abu Mohsen al-Marabi, Samir al-Maruani and Samir Jan. The car was destroyed with Hellfire missiles. All four passengers have been killed. Whichever casual such news from the fronts of announced American wars are, this time they’ve triggered quite a scandal. The reason was that two passengers were actually American citizens. Elimination of one of them — Anwar al-Awlaki — was authorized personally by the U.S. President Barack Obama.
Al-Awlaki headed the Al-Qaeda branch of Arabian Peninsula and the CIA suspected him of some major terrorist attacks. He has allegedly guided the actions of American citizen Nidal Malik Hasan, who shot 13 servicemen at the Texas military base in November, 2009 and inspired the Nigerian citizen Farouk Abdulmutalab, who attempted to bring a bomb aboard the plane to Detroit the same year. Al Awlaki has never been found guilty by an American court, which is why his assassination caused such hype in the United States. Two American citizens and their Yemenite fellows were eliminated on the basis of U.S. law “Authorization for use of Military Force” adopted on Sep 14, 2001. The law allows the U.S. President to “undertake measure for stopping and preventing the acts of international terrorism against the USA”. It follows from the body of the law that President is authorized to use whichever forces necessary against the countries, organizations and individuals, who conspired, arranged and helped to commit the acts of terror. On Sep 18, 2001 the law was ratified by George W. Bush.
It’s difficult to say how many homicides have Americans committed on those grounds. I’m pretty sure that no one would have paid attention to the incident with al-Awlaki, had not popular and influential American judge Andrew Napolitano come up with the criticism of Administration’s actions. Former member of New-Jersey Supreme Court and now senior legal analyst and observer of the Fox News TV-channel is well-known and popular in the USA. On the 8th of March Napolitano published an article named “Can the President kill you?” at his personal web-site. He sets a question that not just lawyers may comprehend: “Can the president be judge, jury, and executioner of an American in a foreign country because he believes that would keep America safe? Can Congress authorize the president to do this?”
Judge’s article is a reaction to the U.S. Attorney General Eric Holder speech at Northwestern University law school. In it, he recognized the requirement of the Fifth Amendment for due process. He argued that the president may substitute the traditionally understood due process — a public jury trial — with the president’s own novel version of it; that would be a secret deliberation about killing. Without mentioning the name of the American the president recently ordered killed, Holder suggested that the president’s careful consideration of the case of New Mexico–born Anwar al-Awlaki constituted a substituted form of due process. Holder argued that the act of reviewing al-Awlaki’s alleged crimes, what he was doing in Yemen, and the imminent danger he posed provided al-Awlaki with a substitute form of due process. He did not mention how this substitution applied to al-Awlaki’s 16-year-old son and a family friend, who were also executed by CIA drones. And he did not address the utter absence of any support in the Constitution or Supreme Court case law for his novel theory.
The Fifth Amendment to the Constitution states that the government may not take the life, liberty, or property of any person without due process. Due process has numerous components, too numerous to address here, but the essence of it is “substantive fairness” and a “settled fair procedure.” Under due process, when the government wants your life, liberty, or property, the government must show that it is entitled to what it seeks by articulating the law it says you have violated and then proving its case in public to a neutral jury. And you may enjoy all the constitutional protections to defend yourself. Without the requirement of due process, nothing would prevent the government from taking anything it coveted or killing anyone — American or foreign — it hated or feared.
The killing of al-Awlaki and the others was without any due process whatsoever, and that should terrify all Americans. The federal government has not claimed the lawful power to kill Americans without due process since the Civil War; even then, the power to kill was claimed only in actual combat. Al-Awlaki and his son were killed while they were driving in a car in the desert. The Supreme Court has consistently ruled that the Constitution applies in war and in peace. Even the Nazi soldiers and sailors who were arrested in Amagansett, N.Y., and in Ponte Vedra Beach, Fla., during World War II were entitled to a trial.
Holder argued in his speech that arresting al-Awlaki — who has never been indicted or otherwise charged with a crime but who is believed to have encouraged terrorist attacks in the U.S. — would have been impractical, that killing him was the only option available to prevent him from committing more harm, and that Congress must have contemplated that when it enacted the AUMF. Even if Holder is correct — that Congress contemplated presidential killing of Americans without due process when it enacted the AUMF — such a delegation of power is not Congress’s to give.
Congress is governed by the same Constitution that restrains the president. It can no more authorize the president to avoid due process than it can authorize him to extend his term in office beyond four years.
Instead of presenting evidence of al-Awlaki’s alleged crimes to a grand jury and seeking an indictment and an arrest and a trial, the president presented the evidence to a small group of unnamed advisers, and then he secretly decided that al-Awlaki was such an imminent threat to America 10,000 miles away that he had to be killed.
Concluding his article, judge Napolitano asks: “If the president can kill an American in Yemen, can he do so in Peoria? Even the British king, from whose tyrannical grasp the American colonists seceded, did not claim such powers. And we fought a Revolution against him.”
We may actually ask judge Napolitano himself few questions. For instance, how comes that this revelation came to him 11 years after the unconstitutional law was passed? Or is he so indignant with the fact of American citizen befalling the victim to it? I think that Andrew Napolitano’s reasoning is quite different. He works for the Fox News (ultra-conservative TV-channel), he is libertarian, and i.e. is a staunch Republican and mind that the U.S. elections are at everyone’s threshold. That’s why this is exactly the situation, when an inch CAN break a square for Democratic President Obama and it doesn’t really matter that he inherited the law from the Republican President Bush.
In fact, AUMF law is not just plainly unconstitutional — it also contradicts the norms of international legislation. Not a single state in the world may kill citizens of other countries without court and trial. This is applied to Serbs, who died during Yugoslavian bombings, Libyans, Iraqis, Afghanis and Pakistanis. Judge Napolitano, though, hardly gives a thing about it.
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