"Our Country!
In her intercourse with foreign nations may she always be in the right;
but right or wrong, our country!"

    --Commodore Stephen Decatur

Tuesday, October 4, 2011

Due Process, John Wilkes Booth, and Anwar al-Awlaki

Judge, Jury, and Executioner?

Last week, a drone operated by the Central Intelligence Agency and U.S. military Special Forces dispatched Anwar al-Awlaki to meet his maker. Awlaki was a radical imam who recruited and encouraged terrorists to attack the United States, but he was also an American citizen. Leading Libertarian figures claim this incident represents a dangerous threat to the right of due process, but a look at history shows us that it is not without precedent. According to Wikipedia:

Before dawn on April 26[, 1865], the soldiers caught up with the fugitives, who were hiding in Garrett's tobacco barn. David Herold surrendered, but [John Wilkes] Booth refused [Colonel Everton] Conger's demand to surrender, saying "I prefer to come out and fight"; the soldiers then set the barn on fire. As Booth moved about inside the blazing barn, Sergeant Boston Corbett shot him.

Colonel Conger, a Union intelligence officer, immediately arrested Corbett for violating his orders to take Booth alive. During the investigation, Corbett claimed that he saw Booth moving toward his weapons, but the other witnesses disputed this account, stating only that Booth was moving around inside the barn, likely searching for some means of escape from his desperate and hopeless position.

Despite the evidence that Corbett shot Booth in cold blood, Secretary of War Edwin Stanton dismissed the charges against Corbett stating, "The rebel is dead. The patriot lives."  Corbett was later given an honorable discharge from the Army but later descended into madness, likely caused by the use of mercury which was then common in his civilian profession as a hatter.

Although the 14th Amendment did not exist at the time of Booth's death, due process rights were guaranteed to all American citizens at the federal level by the 5th Amendment. However, civil rights were sharply curtailed in the occupied confederate states following the end of the war. In particular, thousands of Virginians were arrested and their property seized without due process for providing support and aid to the Confederacy.

The fate of Anwar al-Awlaki is remarkably similar. Although an American citizen, like Booth, he joined forces with al Qaeda in order to commit acts of terror against the country of his birth. On the other hand Booth was given a chance to surrender, whereas Awlaki was blasted away by a robotic drone. In both cases, due process was likely violated.

After the death of John Wilkes Booth, the country did not descend into totalitarianism. Quite to the contrary, passage of landmark legislation with the 13th, 14th, and 15th Amendments to the Constitution greatly expanded the protection of civil liberties which was finally consummated in the civil rights struggles of the 1960's.

Despite the horrors of slavery, civil war, Jim Crow, and segregation, America has emerged from the struggle stronger and freer than before. However, Booth was killed after the war was over, whereas Awlaki was killed at a time when there is no clear end in sight.

Today, al Qaeda is trying to radicalize American citizens so they can use our laws against us. The longer the Global War on Terror drags on, the more our rights will slowly be eroded in the name of "security."  As the war goes on, terrorist masterminds like Osama bin Laden, Khalid Sheikh Mohammed, and Anwar al-Awlaki will devise ever more insidious and diabolical means to attack at the very heart of what it means to be an American.

Rather than the legal implications, the greater concern should be that the use of targeted killings could encourage new recruits to follow in Awlaki's misguided path to "martyrdom."  Over the past several years, President Obama has relied heavily on Special Forces to carry out assassinations of Somalian pirates and al Qaeda kingpins instead of engaging our enemies with conventional military resources.

If the death of Awlaki hastens the end of this war, a return to peace, and a higher standard of justice in the future, it is not all bad--and perhaps the deaths of bin Laden and Awlaki will be the fatal blow to al Qaeda that will allow a return to domestic tranquility. But if not, we must reassess and rethink our strategy before the killing of Awlaki ceases to be the exception that proves the rule.

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