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America 2011 and the Rule of Law

October 3, 2011

This blog will normally focus on matters pertaining to state and local government, the areas where the average citizen can have the greatest impact on political life.  However, occasionally there arises an issue that requires comment, even though not directly related to state and local government.  One such issue is the Presidentially-directed assassination of an American-born Muslim cleric, Anwar al-Awlaki.

Our nation is founded on the Rule of Law.  The colonists started a revolution because they would not surrender ‘the rights of Englishmen’  Our Constitution specifically prohibits denying any man of life or liberty without a fair trial.  Now we learn that, above and beyond President Bush’s claim of authority to jail indefinitely, without charges, anyone he deems to be a ‘terror threat,’ President Obama asserts the right to order the death of anyone, American citizen or not, that he deems a threat, without charges being filed, an arrest made or a trial being held.  There is no check or balance to this self-asserted unlimited license to kill.

None of the above is intended to minimize the nature of the first target.  He may have been guilty of treason, defined in the Constitution as:

“Sec. 3:  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 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.”

No power is granted to the President to determine who is a traitor, or to determine the penalty for treason.  Regardless of whether we are at war or not (none has been declared), from Ex Parte Milligan to Hamdi v. Rumsfeld, American jurisprudence has consistently maintained that, as long as the courts are in session, the right of Americans to redress through habeas corpus remains in effect. Therefore, no Presidential assertion to the contrary may serve as an excuse for ordering the assassination of an American citizen. (It does not appear that any attempt was made to arrest and extradite this cleric before his death was ordered, a circumstance which speaks to the intent of the Administration to ignore the forms of justice in favor of executing those that they deem to be dangerous.)

None of this should be construed to condone disloyal behavior.  A mechanism needs to be in place to deal with situations where a suspect can be brought to justice.  Charging and holding trial in absentia, for example, would at least offer some color of law and due process.  There should be a check-and-balance involved in an assertion of executive power to take life.  Due process does not protect terrorists; it protects all of us, and the presumption of innocence means that it protects the innocent unless or until they are proven, beyond a reasonable doubt, to be otherwise.

(It is ironic, to say the least, that this cleric, accused of encouraging the Ft. Hood shooter, is dead by Presidential fiat, but the actual shooter still lives.  Having been stationed at Ft. Hood, this writer has a personal interest in seeing justice done in that case.)

Concerned, activist citizenship is the only means for retaining our rights.  As a social studies teacher, I ask my students to be ‘critical participants in the contemporary world’ (a phrase borrowed from the foundational concept statement of the school where tI teach); failing that, one can expect the worst for our country’s future, and likely not be disappointed in that expectation.

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From → Government

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