Is it Legal?

Every elected and appointed official in the government of the United States of America, and all fifty states, from the president right on down, is required by law to first swear or affirm an oath of office that he or she: “… will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

My own first obligation as a new lawyer admitted to practice as a member of the bar in both my state and the federal courts forty years ago was to recite oaths to uphold the Constitutions and the laws of my state and of the United States.

The Bill of Rights, which consists of the initial ten amendments to the Constitution unambiguously spell out the most basic ground rules for proper application of government authority over persons. Our government does not enjoy the constitutional power to punish people unilaterally upon grounds of mere suspicion but is required to abide in every case with due process of law.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This means, among other things, that people may not generally be seized, i.e. arrested, on suspicion of a crime, by the government authority except by a court issued warrant based upon a sworn affidavit demonstrating probable cause for the arrest. The reasons for the arrest must be sufficient to satisfy a judge or magistrate.

The Fifth Amendment provides in relevant part:

… No person shall be ... deprived of life, liberty, or property, without due process of law ...

That means that the government authority may not constitutionally go around killing, imprisoning, or otherwise depriving people of their property except by the same proper legal process afforded to everyone. Everyone is entitled to the protections of the legal process -- due process of law -- even suspected terrorists. The government of the United States is not supposed to assassinate people.

The Sixth Amendment states:

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.

This means that if there is sufficient probable cause to charge a person with a crime, that person is entitled to a speedy trial in a court of law by an impartial jury; to be informed of the specific charges; to challenge the testimony of any witnesses in person; to compel the state to bring forth any witnesses in his defense; and to have a lawyer at all stages of the proceedings.

The Constitution of the United States supposedly does not allow lynchings or kangaroo courts. As far as I know, there are no exceptions to the protections of persons in the Constitution for people labeled “terrorist.”

Lately, however, it seems that the president and executive branch of the government have taken it upon themselves to ignore basic constitutional constraints, even against American citizens, by simply labeling them “terrorists,” hunting then down like animals, and assassinating them without any legal process whatsoever.

Witness the latest case of the so-called “terrorist,” Anwar al-Awlaki, an American citizen, blown to smithereens last week by a hellfire missle launched from a U.S. unmanned drone aircraft as he was riding down the road deep in the remote Yemeni desert with his friends.

President Obama blackballed Awlaki on a secret C.I.A. list last year giving the intelligence agency spooks a green light to target him for assassination without the slightest semblance judicial due process.

As far as I know, Awlaki had not been charged with a crime; there was no judicial warrant for his arrest; no affidavit of probable cause supported by oath or affirmation in a court of law; he was simply deprived of his life without due process of law; without a trial; without an impartial jury; without being informed of the nature of the charges against him; without the opportunity to confront or challenge the witnesses against him; and without any assistance of counsel.

This was plainly and simply an extra-judicial, premeditated killing by the state, which placed a secret bulls eye on the back of an American citizen on the basis of who knows what evidence.

Oh, there were lots of allegations in the news about how Awlaki was recruiting terrorists for Al Qaeda; how he inspired the Christmas underwear bomber; and plotted acts of terror against the United States. Maybe it’s all true. Maybe he was in fact a bad guy plotting evil deeds against Americans. I assume that he was.

Still, he was certainly not posing an imminent threat to anyone, or acting as an enemy combatant on a battlefield during the frenzy of war, which might require an act of immediate self defense.

And what of the other people in the car riding with him? I know of no charges against them. Yet they were summarily assassinated as well. For all we know, there might have been little children in that car. Apparently, if there were, they would not be entitled to any due process either.

Oh well, I suppose it doesn’t matter much anymore. My faith in the Constitution of the United States of America was shattered long ago. Anything is legal now if the state says so, and the Constitution may be damned. Americans may no longer rely upon the law to protect them from the state.

I could be labeled a terrorist for writing this blog, hunted down, blown away without a shred of due process to protect me, and who would complain? No one with any standing, that’s for sure.  

All I know is this: If it is legal for our government to kill people labeled “terrorist” without due process, then it is perfectly legal for our enemies to label Americans as terrorists and kill us legally anywhere in the world.

If the rule of law no longer applies, if a solemn oath to uphold the Constitution means nothing, then 9/11 was legal, and civilization has once again been reduced to roving bands of savages.