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”
I was worried about just facing all my in-laws in Pakistan-different culture, some different values and expectations, different plumbing and other standards. . . . now I have to worry about a military strike in case my visit takes me too far into the north of Pakistan. . .Not worried about the Taliban, but my own government. What wonderful rights we have as Americans. . . theoretically.
Michelle, You will have a LOT more to worry about in Pakistan from the Taliban than US drones since they have killed a lot more people than drones ever have. Of course, the Taliban specializes in killing innocents and makes no pretense of killing their opponents. So YOU will be considered a prime target being female, and not a combatant. Be sure to wear a head scarf, and only travel with a male relative, otherwise you will be considered to be a legitimate target for those facts alone. It is also funny that you are worried about the folks who sponsor and promote killing YOU, but can find no words of condemnation for the killers in Pakistan who would like nothing better than to kill you for being a Western woman. Let’s get real about who those people in that part of Pakistan are. The ones who are decent folks who hate the Taliban have been either murdered or have left so I can care less about the remaining people. Maybe a drone will kill the SOB who shot that poor girl in the head while she was on the school bus. I hope so, and that person will not bother to mourn much if his kids or wife dies since they are just property to those kinds of folks.
” You will have a LOT more to worry about in Pakistan from the Taliban”
I think many of us agree that the many different examples of terrorists are bad guys. Our differences arise in what constitutes legal action and what are likely to be the most effective tactics against them.
I for one don’t think we gain by turning our nation into a police state or violating international law. I remain confident that we can defeat them more completely and more rapidly at less cost to ourselves without the excesses of the past decade.
bigfatmike: If 9/11 didn’t convince you that the nation is at stake, then there isn’t anything else I can say.
I do see the survival of our country at stake. These terrorist don’t deal in days, months or years. They deal in decades and centuries. They have a history. Thanks for your reply.
“I do see the survival of our country at stake.”
I think in my lifetime the only immediate threat to national survival I have seen was the Cuban missile crisis in which missiles were being placed in range of every important target in the continental US. Couple that with the fact that launch of the missiles would have given only a few minutes warning, with no chance to shoot them down, and I think there really was the possibility of an existential crisis.
But in that case, the nations survival depended on a cool, thoughtful response with a steady hand, not rapid escalation.
I think it is really had to argue that any other event comes anywhere close to that one in posing a threat to the nations survival.
Certainly not Iraq, Afghanistan, Grenada, the oil crisis of the 1970’s, Vietnam. Possibly a lack of response in Korea might have lead to a confluence of events resulted in a threat to the nations survival.
I am not suggesting for a minute that terrorists are not a threat. But an existential threat? Please.
I am not suggesting for a minute we should not take strong action against them. But our interest lies in upholding our standards, not in destroying the basis of international law that took so many decades to build.
The attacks in Pakistan and other places are little more than colonial arrogance. Can you imagine launching a missile attack in Switzerland if they refused to extradite some one we designated a terrorist, how about Canada, or even Mexico?
We launch these missile attacks because we can get away with it and it is convenient – not because there is any necessity.
We started down this slippery slope when we joined the United Nations with an idea of Police Actions.
There comes a time and situation when decisions must be made outside of the laws that we hold dear. A terrorist who happens to be an American is no different than a criminal in the process of committing a crime. If the terrorist wishes to surrender to the American justice system then they should be afforded the freedoms of the 5th, unless of course we are at war and the terrorist is an American traitor. In this case we can only rely on those in command to make a decision only after regarding the situation with the utmost concern. In this case with the Obama administration there does not appear to have been any cavalier rush to kill. Compare this with the past administration of the three stooges and then come back with the argument. Also, on the one hand the 5th protects Americans, on the other hand it allows Americans to slaughter those who aren’t American. Regard the almost million innocent Iraqis and Afghanis. Regard the three million innocent Vietnamese. This holier than thou attitude is what makes America stink.
The 5th Amendment defines certain parameters within which our judicial system must operate. Therefore, the Amendment presupposes a legal system. War is the antithesis of law. It is the absence of law. It is the breakdown of existing legal systems. Almost by definition, war means we are not resolving disputes through the judicial process. It follows that transposing the 5th Amendment to a non-legal setting (the war on terror) is like putting the proverbial square peg into a round hole. It can’t fit. Don’t be surprised when it doesn’t fit.
Mike: ‘But keep in mind that he is an active member of Al-Queda, a group which is very much always actively planning military actions against the US whether here or abroad.’
And so, because he doesn’t agree politically with what the U.S. stands for and articulates that position, he loses his constitutional rights? Maybe he’s seen the way we have treated people at Abu-Garhib or GITMO. Maybe he’s seen us declare ‘war’ on countries who had done nothing to us and said ‘enough is enough.’ A ‘freedom fighter’ is a ‘terrorist’ when viewed from the other side.
As far as I see things, I am sick of the excuse of ‘terrorism’. Terrorism only works if you allow yourself to be terrorized. So stop being terrorized.
Congress can not “authorize” the overthrow of the Constitution, thus, that is not what the AUMF did.
if this American made a decision to become a terrorist, a sworn enemy of all Americans, don’t we and I have a right to defend ourselves even if that means a preemptive strike.
” don’t we and I have a right to defend ourselves even if that means a preemptive strike.”
I that is exactly what many of us find so troubling. In recent years the idea of preemption has come to be used so easily, some might say recklessly, that it really doesn’t have much meaning.
Instead of applying preemption in cases analogous to self defense, with our back against the wall, now it seems to be used whenever those in power consider the target a really, really bad guy – deep down you know he deserves it.
I don’t think international law has much room for preemptive attack.
Personally, I might be convinced for preemptive attack in cases where the survival of the nation is at stake. In my long life that has never been the case.
samantha: if someone was coming at you with a knife or gun intent on killing you, wouldn’t you defend yourself?
rafflaw: Ok, the right to disagree carries with it the responsibility to offer constructive solutions.
Taking the life of another person is not for anyone to judge on this earth. Anyone with that much power is corrupt, be it in the administration or any judicial system.
Justin and Anon54321,
I agree that a trial in absentia is better than no trial, but a secret jury is not a step in the right direction. Another bad precedent in my opinion.
While we are debating some one who chose to go over to the dark side, let’s not forget that if given the opportunity, this terrorist would not hesitate, for a New York minute, to separate our heads from our shoulders.
Anon54321 offers a reasonable compromise.
Could we all calm down just a wee bit? Abdullah the Syrian (al-Shami in Arabic) is an American citizen. But keep in mind that he is an active member of Al-Queda, a group which is very much always actively planning military actions against the US whether here or abroad. If he were captured in the United States he should be subjected to a criminal prosecution in either civil or military courts depending on the nature of his capture. If captured abroad arguably he is a POW and could be subject to a court martial under the rules of war. And it does not matter in either instance that he is a US citizen by birth. Although that detail could get him a death penalty under the treason definition.
Now, about trying to kill him in a military action directed against Al-Queda or its affiliates … your representatives and mine (Congress) have authorized the use of military force against Al-Queda and its affiliates. No distinction is made based on the individual citizenship of its members. Recall that during the Rebellion US forces were daily trying to kill or capture rebel soldiers and their generals and leaders. President Lincoln was not obligated to go to court day in and day out seeking a writ to shoot at Bobby Lee, P.G.T. Beauregard, or “Jeff” or Lincoln’s friend from his days in Congress — rebel V.P. Alexander Stephens. And they and their soldiery were one and all US citizens.
So, if in the course of military operations, including those specifically designed to attack the Al-Queda leadership, a person who is both an American citizen and a citizen of another nation (as Al-Shami is), and an active member of Al-Queda’s leadership (as Al-Shami is) is killed it is as a result of an act of war authorized by the Congress. President Obama is no more obliged to seek a court order or conduct a trial in absentia of Abdullah al-Shami than was President Lincoln.
I guess the one thing the Constitution can’t overcome is, “you can take a horse to water, but you can’t make him drink…”
But, it’s cast aside at our peril. We see it happening every day on this blog.
One would think that even a Constitutional Scholar could come up with that…
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