The death of Anwar al-Awlaki has once again charged the debate about the delicate balance in the United States between security and liberty.
President Barack Obama’s administration ordered an air strike against al-Qaeda recruiter al-Awlaki while he was in Yemen, which killed him. Al-Awlaki, however, is a United States citizen, born and raised in New Mexico. As a result, he is technically protected by the Fifth Amendment of the United States Constitution, which specifically states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” So, was our killing of al-Awlaki unconstitutional?
Benjamin Franklin famously once said that those who sacrifice liberty for security deserve neither, and I generally agree with him. Security is only there to protect the liberties we hold dear. Without our liberties, what is there to protect? Yet Franklin never had to wrestle with the issue of international terrorism. We have reached a time in our history when issues are no longer as cut and dry as they were at the time of the Founding Fathers.
The rest of the text of the Fifth Amendment states, “except … in time of war or public danger.” I think, despite the lack of an actual declared war, one would be hard-pressed to say our country is not at war. The “war on terror,” while admittedly vague and seemingly without attainable victory, does continue for the United States. Al-Awlaki, because of his American upbringing, could imitate an American accent and was instrumental in al-Qaeda’s recruitment of Americans. He was certainly a public danger at a time when anyone linked to al-Qaeda poses a threat to the United States. These exceptions seem to be enumerated in the Fifth Amendment.
Even if one does not accept the previous arguments about the Fifth Amendment, it is perfectly reasonable to say that al-Awlaki forfeited his constitutional rights. The Founders envisioned the Constitution as a social contract, an acceptance by the people of the U.S. to be governed. The Bill of Rights was placed as insurance for the people that, while being governed, certain rights would be protected.
Al-Awlaki broke this social contract the moment he declared war on the United States. He declared war against the very entity that provided him these rights; his sworn goal was to bring down everything the United States stood for, including the rights in the Constitution. As a result, they no longer provided him protection, despite him being – in name – a U.S. citizen.
In addition, by providing him these rights you are potentially taking away the rights of other citizens. It is much easier to kill a terrorist with an unmanned drone than it is to find him, capture him, arrest him and try him in court. That is just the logistical truth. As a result, it may have taken years more – perhaps indefinitely long – to provide him with his “rights.” How many more terrorists would he have recruited? How many more American lives would those terrorists have taken? How many more others should be deprived of their constitutional right to life, liberty and pursuit of happiness, so that he could have his maybe or maybe not deserved Fifth Amendment right? To provide al-Awlaki with this right would have been to take away the actually legitimate rights of others. He forced that untenable dichotomy, which deprived him of any claim to Constitutional rights.
For the reasons enumerated, the United States Constitution did not protect al-Awlaki. Though the death of a human being should never be applauded, Obama’s swift and decisive action constituted what needed to be done.