Read the Constitution, Mr. Attorney General. The defense that the Administration has mounted for the killing of Anwar al-Awlaki is curiously silent on the actual provision in the Constitution itself that actually defines the crime Mr. Awlaki committed: treason. Here's Article III, Section 3 of the Constitution:
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.You see the Problem here? IT REQUIRES A TRIAL.
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.
Okay, so maybe I'm naive, and maybe I should save this for the next time the Republicans scream bloody murder about trying somebody in Federal Court within the borders of the United States, but really, isn't the crime here exactly "in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort?" Yes, I know that capture in this world of drone attacks is, as Alberto Gonzales might have put this, a "quaint" idea, but it's constitutionally required in cases like the one Holder was discussing at Northwestern.
Admittedly, I'm piggybacking on an excellent diary Jesselyn Radack posted less then an hour ago but consider this a gloss on it. The key here is the secret memo that diary talks about, one that was described in the New York Times October 8 2011. Holder's speech, which finally acknowledged the drone attack that had been described as a covert (and thus secret) operation, was based on this memo, which has been kicking around the administration since June 2010. Admittedly, the Times article is based on anonymous sources and amounts mostly to hearsay, but the idea of treason never came up:
the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.I'm surprised nobody mentioned the "necessary and proper" clause from Article I, Section 8, to cover the legality of the drone attack (yes, this is snark).
It then considered possible obstacles and rejected each in turn.
Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.
A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.
Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”
The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.
It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.
The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.
So now the Attorney General has explained it all to us. We do not defer to the Constitution here, we defer to a Congressional authorization born in the panic of the fall of 2001, and we DO go back to the "due process" clause of the Fifth Amendment to mitigate this. It's not quite as bad as the torture memo (whose authors are now back in academe and sitting on the federal bench), but it just feels wrong.
Don't believe me? Here's the incomparable Charles Pierce on the Holder speech. He frames it as a way to help Obama by protesting LOUDLY that we not do anything like this this way again.
9:30 AM PT: I added a link to Charles Pierce's commentary on this at esquire.com. Also, I didn't write this to drown out the Rush commentary, I just thought this was worth considering.