Drones, the Constitution and the matters of the al-Awlakis and Samir Khan

On September 30, 2011 US citizens Anwar al-Awlaki and Samir Khan were killed in a US drone strike in Yemen.  On October 14, 2011 Abdul-Rahman al-Awlaki, a sixteen (16) year old US citizen, was also killed in a drone strike in Yemen.  These three men, if we call teenagers men, were killed without being formally charged, without conviction, and without even the merest nod to the Due Process protections in the Constitution and its Amendments.

In the time since the killings, additional information has come to light regarding the process for targeted killings by drones.  As I understand it, this process is exclusive to the Executive branch, and, specifically, the President (in this case Obama) made the final determination as to who is targeted for assassination.

To be clear, there is no judicial oversight, no Congressional oversight, no public oversight of this process.  Despite Attorney General Eric Holder’s disputations to the contrary, there was not even a shred of legality providing a fig leaf of Constitutional modesty to these executions.

The Constitution, and the Amendments thereto, are the supreme law of the land.  Why?  The Supremacy Clause in the Constitution, Article VI, Clause 2, says so.

Also, the actions of Anwar al-Awlaki and Samir Khan could best be described as treasonous.  Fortunately, the Constitution defines treason:  “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”  The Constitution also states: “The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

So, we know what treason is.  We know that there is some information available that might be sufficient for the United States government to have brought charges of treason against al-Awlaki and Khan.  But they didn’t.  No indictment, no warrant issued, no presentation of evidence, and, most importantly, no conviction.  Maybe they weren’t nice guys.  Maybe they were, in fact, engaged in acts of treason against the United States.  We don’t know, as we never saw the evidence and they were never convicted of any crime.

The crux of the matter is this:  Citizens are entitled to the protection of their rights, as set forth in the Constitution.  The rights implicated by these targeted killings are:
Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Fourteenth Amendment, Section 1:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So, let’s take a look at this:
1) Treason does not deprive a person of Citizenship.

2) Even alleged traitors are entitled to Due Process of law.

3) This Constitutional right does not end at the border, it s a right of the Citizen not just Citizens located in the United States.

4) The United States did not provide Due Process of law to al-Awlaki. He was not indicted by a grand jury, he was not allowed to enter a plea of not guilty. He was not afforded a right to counsel. He was not even tried in absentia. He was never convicted of treason or any other crime.

5) The President of the United States ordered the killing of a United States citizen without regard to that Citizen’s Constitutional rights.

We have a word that describes the taking of a human life without legal justification.  That word is murder.  The United States government murdered three citizens despite the numerous legal protections they were afforded by the Constitution.

Where does this leave us? Did the President commit an impeachable offense?  Did any of the other elected or appointed officials violate their oaths?  Did they break the law?  What about any military personnel that may have been involved?  Did they violate the Uniform Code of Military Justice?  What if  government contractors were involved, are they criminally liable?

Article 2, Section 4 states: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

I suggest that the assassination and murder of any US citizen, especially a citizen deprived of Due Process, qualifies as a high Crime, which is an impeachable offense.  Similarly, any military or civilian personnel who were involved, and who did not hold office at the time, should be prosecuted under existing criminal statutes.

As of yet, however, the only action taken has been that Ansar al-Awlaki’s father, Abdul Rachman’s grandfather, and the ACLU have filed a claim against the government for the killings.  I will be following the progress of this case and will likely post about it here at some point in the future.

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3 comments on “Drones, the Constitution and the matters of the al-Awlakis and Samir Khan

  1. Terry says:

    in My mind, at this time, the “citizens” left the country, joined an organization committed to destroying the United States, trained in camps where they learned how to make ieds suicide vest and other things the are meant to kill us citizens. I have no problem with them being killed whether by drone strike, firing squad or lethal injection. but as citizens, they should have been apprehended returned to the US and faced a jury of their peers before receiving the death penalty and execution.

    • scbugbee says:

      The question is, ‘What did they do?’ Since they were never charged or tried the government never put up any evidence of actual wrongdoing. We are simply expected to take the government’s word at face value, which, when the entire process is veiled in secrecy and implicates the rights of citizens, is ludicrous.

  2. A 16 year old child surely has the right to due process.

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