The vanishing Fifth Amendment

The Targeted Killing of Anwar al-Awlaki

by Roger Koppl

Anwar al-Awlaki was killed in a drone strike today.  If you recognize the name Awlaki, then you know that he was bad guy.  He was a propagandist for Al Qaeda who seems to have inspired the Fort Hood shooting, in which Nidal Hassan killed 13 people.  He was also an American citizen, born in New Mexico.  He was charged with no crime.  No attempt was made to arrest him.  The United States government seems to have had no plan to try him or charge him with any crime.  He was simply targeted for killing, and killed.

The Obama administration announced in April 2010 that it had targeted Awlaki for an extra-judicial killing.  The previous January, the Los Angeles Times reported that Awlaki was a likely target, quoting a source who said it was “all but certain.”  Time magazine comments, “Cynics will point to the strategic timing – just a week after embattled Yemeni President Ali Abdullah Saleh returned from four months of medial treatment in Saudi Arabia following an attack on the presidential compound. Saleh has been facing intense international pressure to acquiesce to a compromise deal with opposition parties that will see him step down after 33 years in power, in exchange for immunity from prosecution.”  As far as I can tell, there is no reason to think the US government’s relationship to Saleh had anything to do with targeting Awlaki.  But it does seem possible to wonder whether the timing of the kill might have been influenced by Saleh’s political fortunes.  As far as I know, public information does not allow us to go beyond somewhat vague speculations on this relatively minor issue of timing.

The government has constructed a legal defense of the targeting of Awlaki, and at the heart of that defense is the invocation of a state-secrets privilege.  Adam Serwer discusses the government argument, which is given here.

Glenn Greenwald rightly notes that it is hard to square this targeted killing with the Fifth Amendment, which reads in full:

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.

Anwar al-Awlaki was denied due process of law.  How can we square the facts with the plain meaning of the Fifth Amendment?

We have lost the due process protections of the Fifth Amendment.  Prisoners in Bagram have no right of habeas corpus, even if brought there after being “rendered” from a location outside of Afghanistan.  These disturbing facts are more worrisome in the context of the increasing militarization of our municipal police and the recent court decision upholding the portion of an Alabama immigration law “that requires state and local law enforcement officials to try to verify a person’s immigration status during routine traffic stops or arrests, if ‘a reasonable suspicion’ exists that the person is in the country illegally.”

So far the authoritarian powers national, state, and local governments in the United States have not visibly encroached on the daily lives of most Americans.  But if we abandon due process, what assurance do have that our children and grandchildren will not be subject to the full array of authoritarian oppressions including censorship, intimidation, and arbitrary arrest?