Abdullah al-Shami vs. The Fifth Amendment


Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor

The Fifth Amendment protects all United States citizens by guaranteeing us all the right of due process of law. The Fifth Amendment is meant to ensure that the government has to at least prove to a court that a citizen is guilty of any crime that he or she is charged with.

“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 offense 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.” Cornell Law

Without the Fifth Amendment, the government could grab any citizen off the street and proceed to jail them or execute them without a trial of any kind where the accused could mount a defense to the government’s charges.  It seems that the Obama Administration is once again in the process of deciding whether it will unilaterally execute an American citizen believed to living in Pakistan.  Or at least, preparing us for a kill decision that they have already made.

“A little more than two weeks after reporting by the Associated Press revealed that the Obama administration was “considering” the extrajudicial targeted killing of a U.S. citizen it accuses of “terrorist activity” abroad, new and similar reporting on Friday by the New York Times is extending the president’s case for assassinating a man now known as Abdullah al-Shami, a U.S.-born American citizen believed to be living in Pakistan.

The Times reporting, like the AP story on February 10, has all the hallmarks of an intentionally leaked story in which White House officials spoke with reporters on condition of anonymity in exchange for access to information deemed suitable for public consumption.” Common Dreams

While I would not doubt that Mr. al-Shami may be a terrorist responsible for killing or aiding the killing of many due to his alleged involvement in IED activities in Afghanistan, even the Obama Administration has confirmed that he is a United States citizen.  According to the Fifth Amendment, that would normally mean that Mr. al-Shami would be entitled to due process.

According to our post 9-11 reality, that means the decision on whether he will live or die for crimes that he has not been officially charged with, will be done in secret and without any due process as we know it.  Or should I say, as we used to know it.  As you will recall, the Obama Administration has executed at least 4 American citizens without due process.

“The debate over Mr. Shami’s fate is the first time that the Obama administration has discussed killing an American citizen abroad since Anwar al-Awlaki was killed in a C.I.A. drone strike in Yemen in September 2011. It comes less than a year after Mr. Obama announced new guidelines to tighten the rules for carrying out lethal drone operations. When the president announced the guidelines, during a speech in May in Washington, the White House acknowledged that four American citizens had been killed in drone strikes during Mr. Obama’s time in office.

According to the White House, only Mr. Awlaki had been targeted.

As it was in Mr. Awlaki’s case, the Justice Department has been enlisted to evaluate whether a lethal operation against Mr. Shami is legally justified, but it appears that the Obama administration remains divided on the issue. Several officials said that the C.I.A. has long advocated killing Mr. Shami, and that the Pentagon, while initially reluctant to put him on a target list, has more recently come to the C.I.A.’s position.

The debate over Mr. Shami’s fate is the first time that the Obama administration has discussed killing an American citizen abroad since Anwar al-Awlaki was killed in a C.I.A. drone strike in Yemen in September 2011. It comes less than a year after Mr. Obama announced new guidelines to tighten the rules for carrying out lethal drone operations. When the president announced the guidelines, during a speech in May in Washington, the White House acknowledged that four American citizens had been killed in drone strikes during Mr. Obama’s time in office.” New York Times

It really should disturb any and all citizens when anyone is adjudged guilty by any non-judicial process.  It really does not matter if the targeted individual is a scum bag or a saint.  If the government can kill any citizen without due process, does that not endanger us all?  Does it make you warm and fuzzy that the guidelines announced by President Obama last year switched drone authority from the CIA to the Military?

Doesn’t the decision to execute or not execute still come down to the President or his/her underlings in place of a Judicial process guaranteed by the United States Constitution?  I am unaware of any Fifth Amendment exceptions that allows for any President to essentially have the authority to override the Fifth Amendment.

92 thoughts on “Abdullah al-Shami vs. The Fifth Amendment

  1. I’m not going to cry over them, but there is a problem with it. What will stop some administration from deciding that opposing that administration is an act of terrorism? On the other hand, I’m not surprised by this administration, which has made it clear that citizenship means little. Non-citizens seem to qualify for welfare, lower tuition rates and Federal financial aid and can even vote (since proof of citizenship is not required). Since citizenship means nothing (particularly if it will increase Democratic votes), then it shouldn’t matter if the target is a citizen. Our 5th Amendment rights do not exist as a benefit of citizenship, they are handed to us by our Creator and existed before the Constitution. Thus, it’s almost irrelevant whether or not the target is a citizen, the 5th Amendment still applies.

    Still, if a US citizen is going to be targeted, I expect my government to make a formal case, if necessary, hold a trial. Otherwise, there is nothing stopping the government deciding that, because I oppose this unConstitutional action, that I support terrorism and am therefore a terrorist and thus justify hitting me with a drone. If there is sufficient evidence to warrant execution, then there should be sufficient evidence to hold up in a public hearing.

  2. selfhelplegal: I think you are comparing apples with oranges. As I posted previously, I believe we are in a war on terrorism and dealing with enemy combatants, not criminals. In my opinion, enemy combatants are different from law-abiding citizens of the U.S. and should be treated differently. I explained my position in a previous post. Thanks.

    • ” In my opinion, enemy combatants are different from law-abiding citizens of the U.S. and should be treated differently”

      I think many of us would agree with that – as far as it goes.

      The difficult question is how do we determine who is an enemy combatant. In the past that was relatively easy. There was a declared war, well know battle fields, and frequently combatants holding weapons.

      Now, frequently, that is not so clear.

      The question then is should we allow a group of unknown government officials acting in secrete determine who is a combatant, or should we require that there be some sort of public adversarial procedure.

      I think many of us wonder whether it is the combatant or the government officials acting in secrete that pose a greater threat to our liberty.

  3. We are not in a war. We are battling international organized crime. Wars are armed conflicts between states, and the Constitution spells out what needs to occur if we wish to go to war against a state. Use of the word “war” is a convenient method for justifying extra-legal actions. The choice of language, like the choice of actions, has consequences.

  4. Mike Appleton: I could not disagree with you more strongly. We are in a war with an unconventional enemy.

    bigfatmike: The people get the kind of government they deserve. I did not vote for Barack Obama. The people are the sovereign. The people are ultimately responsible for the government they have. That much said, someone has to make the decisions. Life is not all black and white, there are a whole lot of grey areas in life. It’s not perfect. If you don’t like the way the government is, then it is your responsibility to change it. Good Conversation. Thanks.

  5. So now we know why the Obama administration didn’t prosecute members of the Bush administration for ignoring the Constitution.

  6. Justin, I agree with your position. The people of the United States elected Mr. Obama. We take our elections very seriously precisely because of the amount of power we invest in our elected officials. We choose a person to execute these powers because we trust their judgement. A person who is in the US has specific rights guaranteed by the Constitution. Not a “citizen.” A person. When my in-laws come to visit from Germany, they enjoy the same protections against unreasonable search and seizure that I enjoy. Citizenship was never a big deal for the founders. In fact, we changed the Constitution 14 times before we even bothered defining who was or was not a citizen.

    There are certain rights and responsibilities that citizens have. Jury duty, voting, running for office, etc… Legal protections are not, and have never been, a right afforded just to citizens.

    We wouldn’t expect a cop to wait for judicial authority before he/she uses deadly force against a citizen who is actively threatening to kill a bystander. If the President feels that this person is a direct and immediate threat to the safety of Americans, it is entirely proper for him to take violent action to eliminate that threat. Our mechanism for review of the President’s decisions lies with Congress and it’s power to remove the President from office, or our power at the voting booth. None of us have access to the information that the President has. I simply have to trust that he has weighed this information carefully before coming to a decision. This is the very thing I elected him to do. I am certainly more comfortable with this power being exercised by someone elected by the people than I would be in it being exercised by an unelected secret FISA court.

  7. The problem I see is that the “King” can declare anyone opposing the ruling class a ” terrorist.” PETA?….terrorists! Occupy movement?…terrorists! Opponents of the Keystone pipeline?…terrorist! ANYONE opposing the oligarchy we have can be declared a terrorist, to enable them to keep looting the American (or Russian, or whoever) economy, especially the 99%. And every govt around the world is using the term to justify extrajudicial responses.

    As for me, I prefer the Constitution to a King?

    • Yes, the absence of any effect check or balance outside of the executive branch is important part of the problem, but equ8ally important is the fact that there are real terrorists out there who want to kill Americans, but for who are in areas where they cannot be captured. The President fails his primary duty to protect the country if he does not act.

  8. Dave,
    I suggest that the primary duty of any President is to obey the Constitution. Without it, none of us have any security.

    • “We the People of the United States, in order to ….provide for the common defense…do ordain and establish this Constitution…..” If you believe the President should not take the only action available to prevent attacks on American, per my earlier comment I suggest you flesh out the wording for the President’s Oval address to be delivered after a terrorist has succeeded. The Constitution is not a suicide pact.

  9. I didn’t think there could be a president worse than Bill Clinton, but Barack Obama proved me wrong. One of the worse nights of my life came on Tuesday, November 6, 2012. For it was on that night that I was kicked in the stomach and had to swallow the bitter pill of accepting that Barack Obama would be reelected as President of the United States. On that fateful night, for the first time in my 62 years, I felt like I was losing my country that I love so much; the country that I fought for, along with millions of other veterans throughout this great nation’s history, and shed our blood defending. Now the “paper tiger” in the White House has surrendered to Russia and abandoned Ukraine as part of his endless policy of weakening America. The damage that this president will do to America before he is finally removed from office will take decades and generations, if ever, to repair. That’s unless, of course, the American people wake up from their winter solstice and demand that Barack Obama resign as President of the United States before he’s allowed to do any more damage to our country.

  10. Obama may be as bad as Herbert Walker Bush. Clinton was never as great a threat as these two.

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