Abdullah al-Shami vs. The Fifth Amendment

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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. Hi Jill. I appreciate your argument, but it’s a bit of a stretch to include human experimentation. No one has been more critical than me with Obama. My position is well documented. I share your concern for governmental abuses. We have no disagreement there. However, we are engaged in an unconventional war with a people who have a history of warring. At the risk of sounding like I am justifying them, there are going to be abuses. But I am confident that the U.S. Constitution is strong enough to withstand both Obama and terrorism and come out stronger than ever. I love my country. I am as deeply troubled by what is happening as you, but we need to continue to speak out like you are doing now. Thanks.

  2. Justin,

    There is no need for the US to be at war with “terrorism”. We successfully dealt with people accused of terror attacks, including attacks on US soil, in a court of law. This changed after 9/11, not because we could not have approached this from a criminal justice perspective but because it was much better for the govt./military/fianacial complex to make money off of a “war”. It also gave the oligarchy a way to suspend the Constitution.

    Yes, this is a dirty war, unnecessary and dangerous to ordinary people, both foreign and domestic. Drones are a blunt, illegal instrument for handling what should be a criminal matter. You do not answer the question of how you know the people being killed are terrorists. Why do you believe Obama when he has lied and deliberately killed people whom he could not produce enough evidence to indict?

    As to doing everything to protect our citizens. Who are you protecting by tearing down the rule of law? Societies collapse all the time after the rule of law is destroyed. And do anything? Like the German’s under Hitler? When they did human experiments on prisoners to determine how much cold or heat the human body could take, sure, they got that “medical” information and created protective clothing for German soldiers from that information. It worked! Praise the Lord!

    So are you willing to have your nation experiment on prisoners because it will help protect American citizens? After all, it does work. The president takes an oath to defend the Constitution, not protect the American people from terrorist attacks. We should hold him and ourselves to that oath, otherwise, you become what you hate–a person and nation willing to torture, maim, kill the innocent and commit daily atrocities–a terrorist.

  3. Jill,
    We don’t agree all the time, but in this circumstance, I agree with your response wholeheartedly. If we allow the 5th Amendment to be ignored for any citizen, we put all citizens at risk.

  4. Hi Jill. While I respectfully disagree with you, you make an excellent argument. War is dirty. Sometime innocent people get killed. It is just the nature of the beast. I wish it wasn’t that way. I don’t condone it, but at the same time America needs to do whatever possible to protect its citizens. Thanks.

  5. So all of the Obama royalists–have you seen the evidence against the accused? Would you care to share that evidence with us here? Is it true because Obama told you it was true? That’s not the US system of justice.

    This administration has killed a 16 year old boy whom they knew was not a terrorist. They have also killed a man whose alleged crimes were put before a grand jury. The grand jury did not find a reason to indict him, but hell, Obama wanted him dead, so he was killed anyway.

    I fail to understand why there are so many believers in a man who has consistently killed babies and children, afterwards labeling them as “terrorists”. I also fail to understand the cowardly nature of citizens who are willing to suspend the rule of law on behalf of dear leader’s say so. I want to know why you are so willing to break faith with your own Constitution because of terrorism.

    First they came… Even the most obsequious Obama royalists may fall out of favor some day. You may be getting strokes now, but a lot of former favorites don’t stay that way forever.

    Citizens need to have courage and the will for justice. Otherwise, the terrorists really did win.

  6. Everybody keeps saying that as a citizen, he is protected by the 5th Amendment. This is absolutely not true. The 5th Amendment makes no mention of “citizen” or “American.” It says “no person…” It applies to all people whether they are citizens or not. Obama has the same authority to kill an American citizen overseas as he does to kill a non-citizen like Osama bin Laden.

  7. Any American who joins a terrorist group and participates in terrorist acts against the United States commits acts of treason and FORFEITS their rights as a citizen of the United States. They are enemy combatants in a war. Not criminals as Obama would have us believe.

  8. If we cut through all of the self-serving justifications, it comes down to this: when we decide that a group of individuals can make secret decisions using secret criteria to determine whether a U.S. citizen gets to live or die, we no longer have a government of laws, but the alternative. Even wars are fought under law. Congress has thoroughly abdicated its responsibilities to successive presidents, who are hardly reluctant about assuming powers that have been effectively ceded.

    1. Sorry Mike, but since 9/11 we have been at war, and the military DOES get to decide who is a combatant and who is not. They also do that in secret as they did in WWII and all of our other wars. Unless you think that Lincoln, FDR, and all our wartime Presidents are dictators, we have not lost our freedoms as a result.

  9. randyjet:

    Lord Haw Haw was actually born in the United States. He also had a trial.

    1. i am aware of that, but they only had a trial after losing millions of lives. It most certainly would not have been a violation of his rights to bomb him into oblivion if they could have found out where he was and they wanted to use their resources to do it. The same holds true for Pound who could have been killed without any legal objections or spurious complaints about his not getting a trial. If the US bombs him in a country where the US has a means of having him arrested, THEN it would be wrong and a violation of that country’s sovereignty as well.

      As I have pointed out on many occasions it does not take much to shoot down a drone if the countries involved had any real objection to them. All they need is a C-182 RG and a good rifle and the drone is done for.

  10. Justin,
    I looked for any of your comments in the spam filter and I could not locate them. Is your comment at 10:31 the missing comment? Sometimes WordPress just gets hungry. I have had mine lost as well.

  11. If Abdullah al-Shami, a U.S.-born American citizen, has joined a terrorist group and participated in terrorist actions against the United States, then YES he should targeted and eliminated. I want to see you defend him while you are chasing your separated head, rolling down the street. Oops, I’m sorry. I know that could never happen. The country never thought that 9/11 could ever happen either. It’s history now. I’m not a wait till it happens kinda of guy. I believe in “preventive maintenance.”

  12. You can see where this argument goes. The whole notion is bad, it is reflexive of a bad foreign policy, and a very bad philosophical argument. You can pick it apart easily. Our current foreign policy is pretty well morally bankrupt, and thus terrorism is the logical result (blowback). We were happy to assist the side (one of the sides I guess) of the Syrian cauldron of hell. Were not Al Qaeda part of that crowd? Plus, there is a thin line between “covert” and “terror.” I’ve read some interesting things about Ukraine and the other revolutions–and some stuff you have probably seen from Edward Snowden regarding inciting mob tactics. Futhermore, to at least make for some stronger arguments, I believe some folks need to get a much bigger historical perspective. I am surprised how many adults were initiated to the real world on 9-11. The younger generation seems to almost think situations like Pearl Harbor, Hiroshima, Nagasaki, Dresden, and just about all of the devastation of western Russia were Hollywood story lines. Nobody will ever know how many Russians died in WWII–somewhere between 25-50 million. The scope of that horror is almost beyond comprehension.

    1. Sounds like your remarks are hung in the spam filter.

      Immediate re-posting has never worked for me.

      You might try removing any links to other web pages and reworking the entire comment.

      You might hit the jackpot and have all 5 or 10 attempts to post come out later, one after another – the electronic equivalent of having a hung print job with pages shooting out on the floor.

      I usually just wait. Sometimes my remarks appear later. Sometimes they disappear and I just re-post them the next day and everything usually works fine. .

      I am pretty sure computer science is a misnomer. They should have called it computer mysticism.

  13. QUESTION:
    What prevents the president from affording an American their due process rights?

    It’s not he’s the terrorist heading up a rogue army believing that they aren’t bound by Duty to Nation, a Constitution tied to his oath of Office, yes?

    So again, why can’t he afford an American their due process Rights? I’ll even take a Grand Jury trial in Absentia. Unfortunately, it appears our Constitutional Scholar doesn’t have it in his heart of dark hearts to actually see that the law is enforced. His choice… Could be you next in his cross hairs.

    Keep that reality tucked in the back of your mind…
    … And stand up for your family, neighbor and self!

    Before they come for you and no one is left to stand up for you but a cabal of yes men on a secret court.

  14. I am 100% in favor of impeaching and convicting Mr O and our esteemed Attorney General Mr. H for violating the oath of office to uphold the Constitution by their claim of a right to kill anyone anywhere they deem a threat. And please also put Mr B on trial for his authorization of torture.

    To those that believe these “terrorists” are an imminent threat…You actually believe the government that has admitted lying to you on more than one occasion about their spying activities? And you believe them in this case because?

  15. randyjet

    … The same holds true for other Americans who affiliate with Al Qeada. They are legal targets and should be killed at the first opportunity. Simple.
    =================
    Yes, the issue is simple.

    Who decides when someone “affiliates” with al-Qaeda?

    Under our constitution that is a grand jury, then a petite jury of our peers, who watch the accused put on a defense and watch the prosecutor pur on a case attempting to prove that allegation beyond a reasonable doubt.

    Anything less is a treasonous Star Chamber.

    1. Dredd, it is pretty simple. When you are in the Taliban controlled area, make broadcasts for them, take part in giving them material aid, and all the other things, it is a pretty fair assumption you are guilty and are an active combatant, thus a legal target. I WILL get upset when the drones kill some American Muslim students on spring break enjoying the beaches in Afghanistan. THEN I will agree that such actions are wrong. Let me know when that happens, and I am sure lots more people will be upset too. Unfortunately for you, most Americans have good common sense about this kind of thing and you will find few takers for your sympathy for or concern for too much Presidential power. The nice thing is that Obama has not tried to cover this kind of thing up, while a lot looser criterion was used in the past. All a US citizen had to be was politically inconvenient to be murdered by the US government under our previous administrations. Virtually ALL of those who the US murdered were NOT engaged in armed actions against the US. Yet there was scant outcry by the folks on this site or others, and the media covered up their murders. The GOP was the prime party in murdering those people, and they were rather proud of it too.

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