Monday, October 3, 2011

Terrorism and Treason

I want to clarify something about my earlier post - I am not saying al-Awlaki was not a bad man or that he should not have been killed. I am saying that ends do not justify means. The end always needs to be justified, but just as importantly, the means also need to be justified - on its own.

Let's take al-Awlaki's case. He's a citizen, and presumably we have evidence that he's joined a terrorist organization and is working against the United States.   The Constitution gives a definition that seems to fit him pretty well.  We should try him in absentia, convict him, and sentence him. That is the justification for the end - his execution.
Article III. Section. 3.Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Now for the means, Congress can issue letters of Marque and Reprisal, the modern day version of this is essentially putting a price on someone's head right? We did it for bin Laden and for Hussein, it can be done for al-Awlaki. Or, if we want to use the military to take him out, we should determine, does the law allow the military to be used against a traitor citizen? If no, maybe the law allows a traitor's citizenship to be stripped. Then he would be a foreign national who perhaps could be legally, ethically, and morally targeted by the military.

I am arguing now, and will always argue against the power to unilaterally declare that a citizen is an enemy and summarily kill them without due process. Due process means that we operate on the presumption of innocence, that we produce evidence, that we allow for a defense, and that a judge looks at the evidence and the counter-evidence and determines the outcome of the case.  Guilt must be proven before punishments are undertaken. Ei incumbit probatio qui dicit, non qui negat. (Latin: The burden of proof rests on who asserts, not on who denies).

I can see an American citizen inciting Muslims to jihad as traitorous to our country. The Constitutional definition of treason, quote above, seems to apply quite well.  However, in addition to defining treason, it also says that no one can be convicted of such without a trial.  Furthermore, the 5th Amendment to the Constitution 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, 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.

Thus, for executions to be lawful, traitors must be indicted, tried and convicted by a grand jury.  If he was tried and convicted then his due process would be upheld - his execution (the end) would be legal and justified.  So again, the only question that would remain is, do we want to place that execution in the hands of the military (the means), who shoot missiles into civilian neighborhoods?

I think we can maintain a high ethical and moral position and still bring justice to the bad guys.

In fact, I think we MUST approach justice this way.  According to Bastiat, the purpose of the law is to prevent injustice from reigning...Law is justice. And it would indeed be strange if law could properly be anything else! Is not justice right? Are not rights equal?

If we do not maintain a high standard of ethics and morality, we will eventually degrade into a dictatorship where everyone is afraid, all the time; afraid of the government, and of everyone else.  If you put the tools in place that a tyrant can use to eliminate his political opposition, one day you will get one who does just that. I will always argue, loudly, against putting those tools in place.

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