Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free. The Federalist No. 8, p. 33 (Hamilton)
The President will not confirm or deny, but it is likely a secret document has authorized agents of the government to kill Anwar al-Awlaki, a citizen of the United States (shown above). Mr. al-Awlaki has not — yet — been charged with crimes against the United States. No court hearing or other aspect of regular due process has been undertaken to consider charges against the accused.
No matter how else we might disagree, I hope we can all agree that unilateral action by the executive to kill a citizen is a serious matter deserving careful consideration by citizens.
Last weekend a number of citizens gave the issue more careful attention than is typical of the blogosphere. See context and comments at: al-Alwaki and us: Where do the rights of citizenship end?
In these comments — and elsewhere — I perceive four frames-of-reference being applied to the prospect of the President’s men or women killing our fellow citizen:
1. What is the most pragmatic choice? What decision and action is most likely to reduce the immediate threat of Mr. al-Awlaki?
2. What is the most ethical choice? What is most likely to reinforce sustainable relationships? (Some of the relationships are international, some interpersonal, some are relationships between values, others…?)
3. What is the best legal approach? What principle and/or precedent and/or argument preserves or advances an appropriate balance of liberty and security?
4. What is the best political choice? What decision-making and action-taking process is most likely to sustain democratic principles and practices under duress?
I understand the responsibilities of citizenship include listening to my government, listening to my fellow citizens, observing reality as best I can, and applying my values and reason to reach a decision — or identify further information needed to reach a decision or to justify a non-decision — which I should then communicate to my fellow citizens for their consideration.
Since the weekend I have tried to behave as a citizen and have concluded:
- There is sufficient pragmatic justification for the executive to take unilateral action to kill Mr. al-Awlaki.
- There is a substantial ethical justification for lethal action. I can imagine a thoughtful chief executive feeling ethically compelled to take such action.
- The authorization to kill a citizen without judicial review is almost certainly illegal and unconstitutional.
- The political implications of unilateral lethal action by the executive against a citizen depend a great deal on what happens in the future and how the decision is used by others.
In other words, for me it is a split decision. (The confines of a blog — with any hope of being read — make it difficult to justify these conclusions. But in links provided at the close of this post I point you to sources that had particular influence on my deliberations.)
This deliberating has, however, helped identify criteria by which I could square these four frames and reach a more coherent decision. The legal framework for extraordinary executive action of this sort must be made much more explicit. It is the secrecy of the executive in this matter that most offends our legal standards and generates the greatest potential for profound political mischief.
There is an urgent need — and the case of Mr. al-Awlaki presents the opportunity — to establish a new body of law that much more clearly and precisely sets out due process appropriate for the so-called Age of Terror or this Long War or our struggle against violent extremism. Whatever we call this challenge, we are faced with “continual effort and alarm attendant on a state of continual danger” and we do not need Alexander Hamilton (or even Lee Hamilton) to tell us why this is a threat.
Among the strongest nations, once liberty is earned it is seldom taken away by outsiders. But mortgaging liberty on a false promise of security is a recurring tale. Too often the debt is called. In his big, difficult, and wonderful book Terror and Consent, Philip Bobbitt writes,
The states of consent must develop rules that define what terrorism is, who is a terrorist, and what states can lawfully do to fight terrorists and terrorism. Unless we do this, we will bring our alliances to ruin as we appear to rampage around the world, declaring our enemies to be terrorists and ourselves to be above the law in retaliating against them. We will become, in the eyes of others, the supreme rogue states and will have no basis on which to justify our actions other than the simple assertion of our power. At the same time, we must preserve our open society by careful appreciation of the threat that terror poses to it and not by trying to minimize that reality or to appease the sensibilities of people who would wish it away… We must do this because an open society depends upon a government strong enough and foresighted enough to protect individual rights. If we fail to develop these legal standards, we will find we are progressively militarizing the domestic environment without having quite realized that we are at war. And, when a savage mass strike against us does come, we will react in a fury that ultimately does damage to our self-respect, our ideals, and our institutions (p. 394).
To avoid this self-generated harm there is a need for legislative action prior to the savage mass strike (or cumulative small strikes?). What is effective and appropriate due process for a “state of continual danger”?
An explicit legal structure and set of procedures is needed. I advocate developing this through legislative action — as opposed to judicial action — to more fully expose issues involved. The legislative process is much more adept at educating and involving citizens. Through the legislative process we are more likely to cultivate the attitude of readiness and resilience that is most conducive to preserving our liberties.
The upcoming lame-duck session of Congress would be an opportune moment to open hearings on reforming due process guarantees for the present age.
For further consideration:
Moral Man and Immoral Societyby Reinhold Neibuhr
The Irony of American Historyby Reinhold Neibuhr
Act and Being by Dietrich Bonhoeffer
Executive Order 11905, Section 5, paragraph g: Prohibition of Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination.
Authorization for the Use of Military Force, September 18, 2001
Hamdi et al v. Rumsfeld (I was especially taken by the Scalia dissent.)
Terror and Consent by Philip Bobbitt
The Federalist Papers by James Madison, Alexander Hamilton, and John Jay
Second Treatise of Government by John Locke