Dangerous Precedent

By Alden L. Benton

 “They who would give up an essential liberty for temporary security deserve neither liberty nor security.”  — Benjamin Franklin

The difference between a nation of laws and a nation run by the whims of men is due process.  Under the rule of law, there is liberty, under any other system, there is tyranny.

Due process protects individuals in the United States.  The Constitution clearly states the right to due process in Amendments 4 through 8, but most clearly in the Fifth Amendment.

The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence 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.

The Constitution places limits on the power of government.  The founders knew from their own experience the evils an uncontrolled government could perpetrate against its people.

Today, these limits are fading and blurred.  As the government grows larger, it usurps powers it is not entitled to wield.  Indeed, it is as Thomas Jefferson said, “The natural progress of things is for liberty to yield and government to gain ground.”

This brings us to questions regarding the recent assassination of Anwar
al-Awlaki, a radical Muslim cleric, wanted al-Qaeda terrorist operative, and United States citizen.

Is there justification in the Constitution to give the president the authority to order the assassination of an American citizen, and if there is, under what circumstances?  I am not a lawyer or a legal scholar, but upon reading the Fifth Amendment to the Constitution, the answer appears to be: perhaps.

The Fifth Amendment begins with a restriction on the power of government: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….”  It then immediately makes an exception by stating “… except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger….

In the case of al-Awlaki, the most important phrase in the Fifth Amendment is “in actual service in time of War or PUBLIC DANGER (emphasis added), for there is no war on terror, at least as described by the Constitution (Article I, Section 8, Paragraph 11), because Congress has not directly declared such a war.

President Obama’s action is not completely without precedent.  President Lincoln suspended the right of habeas corpus during the Civil War and President Franklin Roosevelt’s internment of American citizens of Japanese ancestry during World War II are two examples of the government suspending the constitutional rights of its citizens without due process.

If suspending constitutional rights, under specific, limited circumstances is indeed permitted under the Constitution, should the public be informed of the rationale behind such a far reaching decision? 

The answer to that question is a resounding yes. 

A free society cannot function without free and unhindered access to information for, as  John Adams said, “Liberty cannot be preserved without a general knowledge among the people.”

According to the Washington Post (Secret U.S. Memo Sanctioned Killing of Aulaqi), an Obama administration official said:

As a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda, the Taliban, and associated forces as well as established international law that recognizes our right of

There is no mention in this obfuscated comment of either the Constitution or of how this decision was reached.  The legal and philosophical reasoning which led President Obama to his decision to kill al-Awlaki is purposely being withheld from public scrutiny.

According to the Post, “…administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process.”

According to an analysis in today’s The Atlantic (The Secret Memo That Explains Why Obama Can Kill Americans), “…the actual legal reasoning the Department of Justice used to authorize the strike?  It’s secret.  Classified.  Information that the public isn’t permitted to read, mull over, or challenge.”

The decision reached by the White House to kill an American citizen without due process, while in this case may be justified, nonetheless poses serious Constitutional questions regarding the extent and reach of government power over its citizens.  There needs to be an open and robust discussion of this issue.

The classification of the discussion within the administration as secret makes one wonder what the president and his team are hiding.  There is no danger to American lives, property, or policy in revealing the rationale for this decision.

The president must use his power to declassify the memos and papers which discuss the decision to kill an American citizen so that an open national debate can begin on the implications of this decision. 

Hiding this information leads to but one conclusion, and that is that the president is attempting to manipulate the political landscape to his advantage as the 2012 campaign begins.

America, and the world, may be a little safer without the likes of al-Awlaki, but if we destroy our constitutionally guaranteed rights in exchange for a little security, what have we won?

“The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”  — Patrick Henry

©2011 Alden L. Benton/Independence Creek Enterprises


One response to “Dangerous Precedent

  1. Keep going, Alden. You make a lot of sense, in whatever you post!

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