This article first appeared in the St. Louis Beacon, April 15, 2010 - In a move more reminiscent of Tony Soprano than, say, Thomas Jefferson, President Barack Obama has authorized a hit on a radical Muslim imam named Anwar al-Awlaki. The target is thought to be somewhere in Yemen.
Often referred to as the "bin Laden of the Internet," al-Awlaki has some rather suspicious ties to some very notorious characters.
- Two of the 911 hijackers are believed to have attended sermons at his mosque before the 2001 attacks.
- Nidal Malik Hasan -- the renegade Army major who murdered 13 Americans at Fort Hood, Texas, last November -- is thought to have been in contact with him while plotting his crime. Al-Awlaki subsequently praised Hasan's actions.
- The psycho who attempted to blow up Northwestern Flight 253 on Christmas day by igniting explosives in his underwear, Umar Farouk Abdulmutallah, is another reputed associate.
According to The Daily Beast, al-Awlaki "preaches jihad and celebrates violent Islamic extremism from within Western societies" although his role "may have been more as a propagandist and interlocutor, rather than a foot soldier ..."
For what it's worth, al-Awlaki denies any ties to al-Qaeda. He is also a native son of New Mexico, which raises the rather troubling constitutional question of whether the president can order the execution of a U.S. citizen without the formality of a trial.
A strict reading of Article II -- which provides for the Office of the Presidency -- reveals no mention of any such power. On the other hand, the Fifth Amendment clearly precludes deprivation of "life, liberty or property without due process of law," and the Sixth Amendment defines the required process as a trial by a jury of one's peers.
Can Mr. Obama make good on his pledge to "preserve, protect and defend the Constitution of the United States" by overriding key provisions of that self-same document? Speaking historically, the surprising answer to that question would appear to "yes."
The previously mentioned Thomas Jefferson wrote, "... strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."
Lincoln famously usurped congressional prerogative when he suspended habeas corpus by executive order during the Civil War, a maneuver declared unconstitutional by the Supreme Court. The court's ruling was rendered a year after the war had been won.
During WW II, FDR established a military commission to try eight captured Nazi saboteurs, one of whom was a U.S. citizen. The Supreme Court subsequently validated his action in Ex parte Quirin (1942).
Of course, the case can be argued that al-Awlaki is accused only of exercising his First Amendment rights to free speech. Indeed, the courts have consistently ruled that political and religious speech enjoys the utmost constitutional protection.
Lincoln's commentary regarding his arrest of Congressman Clement Vallandigham of Ohio in 1862 is instructive in this regard. He wrote that Vallandigham was arrested "because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an effective military force to suppress it. ... Must I shoot a simple-minded deserter, while I must not touch a hair of a wily agitator who induces him to desert?"
Yes, you have read those words correctly: That's Abraham Lincoln justifying the arrest and detention of a sitting member of the Congress because he had the audacity to speak his own mind.
And what was history's judgment on this blatant violation of the separation of powers? The next time you're in D.C., visit the Lincoln Memorial, then spent the rest of your trip searching for the corresponding commemoration of the career of erstwhile Congressman Vallandigham. To paraphrase the late Justice Robert H. Jackson, the Bill of Rights was not intended to be a suicide pact.
Although candidate Obama was stridently critical of the Bush/Cheney "war on terror," President Obama has been far less vocal. Most of the provisions the previous administration put in place to combat our adversaries remain in full force, and some have been expanded. It would appear that once the responsibility for the welfare of 300+ million Americans settled upon his shoulders, the new president's judgmental processes underwent a sobering reality
If imitation is the sincerest form of flattery, imitation by one's harshest critics must be doubly so. It would appear that an apology is due the last administration from civil libertarians -- your present correspondent included -- who condemned its apparent disregard for constitutional rights.
That said, we traverse a slippery slope when the chief executive can announce what amounts to a mob hit without fear of political or legal consequences. Al-Awlaki publicly endorsed the murder of unarmed Americans at Fort Hood. That's good enough for me. But what if the next guy who looks guilty is actually innocent? Intelligence can be wrong -- remember those weapons of mass destruction in Iraq?
I believe it was George Will who observed that Julius Caesar met his demise not because he assumed extraordinary powers to confront an emergency, but because he refused to relinquish them once the crisis had passed. It should also be remembered that his successor, Augustus, saw fit to retain and consolidate those powers and thus did the Roman Republic devolve into the moral quagmire of Imperial Rome.
As "terror" is an emotion, the war against it doesn't figure to be concluded anytime soon. Emergency measures adopted to wage the campaign are likely to become permanent features of the landscape. We seem to be afflicted with an ancient Chinese curse because we certainly live in interesting times.
M.W. Guzy is a retired St. Louis cop who currently works for the city Sheriff's Department. His column appears weekly in the Beacon.