The View from Abroad

Hard hitting commentary from an American living overseas

Kenn Jacobine

Kenn Jacobine
June 03
Kenn Jacobine is an international educator currently teaching History and Economics for the American School of Doha, Qatar. He has also taught at international schools in Ecuador, Mali, and Zambia. His political transformation took place over the course of many years. Starting out naively as a big state liberal, he became a Reagan Republican in 1982. Disillusionment set in with the realization that small government rhetoric rarely translated into limited government actions. On Christmas day 1992, he became a libertarian. In 1994, Kenn ran for the State Senate in Pennsylvania on the Libertarian Party ticket garnering 5 percent of the vote. He has been active in freedom causes ever since.

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OCTOBER 9, 2011 12:20PM

Why was al-Awlaki Denied His Constitutional Rights as an Ame

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On November 25, 2001, American citizen turned Taliban fighter John Walker Lindh was captured on the battlefield in Afghanistan by Afghan Northern alliance forces.  Eleven months later after confessing to fighting with the Taliban against the U.S. and its ally in Afghanistan he was sentenced to 20 years in prison without parole.  On September 30, in Yemen, American citizen and alleged terrorist organizer Anwar al-Awlaki was killed by two Predator drones firing hellfire missiles.  Two Americans treated in two totally different ways.  What could account for the difference in treatment?

Perhaps it’s racism?  John Walker Lindh was a white man from California.  On the other hand, Anwar al-Awlaki was a person of color and worse yet of Arab descent.  Now, if I were a so-called progressive this explanation would fit right in with my world view that whenever anybody who lacks even a drop of Caucasian blood is treated differently than their white counterparts racism is to blame.  But I am not a progressive and therefore have an open mind about why the two men were treated differently.  There are many potential reasons why the two men were treated differently and I don’t believe racism was one of them.

Let’s not forget what happened when Attorney General Eric Holder announced that the Administration intended to try Gitmo detainees in federal court in New York City.  There was outrage from the families of 911 victims and Americans in general.  Going into an election year with his approval rating at rock bottom anyway, Obama could ill afford to be in a position where he had to decide the fate of an American in custody accused of terrorism.  Would he grant al-Awlaki his constitutional protections as an American citizen and try him in a federal court or would he throw the Constitution out the window and try him as an enemy combatant in a military tribunal? He certainly would have alienated a portion of voters with either decision.  Maybe Obama decided that Americans have short memories and it would be politically expedient to murder al-Awlaki now more than a year before Americans cast their votes to give them time to forget?

A third explanation for the difference in treatment of Lindh and al-Awlaki could be that our leaders have just become more fascistic over time.  Way before al-Awlaki was murdered, the administration proclaimed its right to murder Americans “suspected” of plotting terror attacks against Americans.  Under this edict, John Hinckley, Jr. Tim McVeigh, and Jared Loughner would simply have been killed after committing their heinous acts.  But instead, the first two were afforded a fair trial and the third is awaiting his date with justice.  What if al-Awlaki was insane like Hinckley?  Because of Obama’s kill order we will never know.

And if anyone thinks congressional leaders or the top two Republican candidates for president were going to speak out against Obama’s homicide you had another thing coming.   
Republican frontrunner for the presidential nomination Mitt Romney was quoted as saying, “The killing of Anwar al-Awlaki is a major victory in our fight against Islamist terrorism and proper justice for the numerous attacks and plots he inspired or planned against America”.  Romney went on to commend Obama for his “continued efforts to keep Americans safe”.  Not to be outdone by Romney, Republican presidential candidate, Texas governor Rick Perry called al-Awlaki’s demise “an important victory in the war on terror.  Perry also congratulated Obama for “sticking with the government's longstanding and aggressive anti-terror policies - for getting another key international terrorist."

Neither candidate expressed any concern whatsoever about Obama’s total disregard for the rule of law and the rights of an American citizen.  It is not like al-Awlaki was killed on the battlefield.  The hit took place in a desolate part of northern Yemen.  He was riding in a vehicle and had been tracked by intelligence sources.  The U.S. military knew exactly where he was and could have dropped commandos in to capture him like Seal Team 6 allegedly did with Osama bin Laden.

Killing al-Awlaki without regard for his constitutional rights as an American citizen is a threat to every American’s protection against tyrannical government.  In fact, more killings may be coming soon.  Reuters has reported that the White House has created a
secret panel in charge of building a kill or capture list of suspected militant Americans.  The panel was established under the authority of no law and without any requirements to keep public records of its decisions or operations.  Reminiscent of what Nazi Germany did to its own citizens, Obama has fully assumed the power to unilaterally assassinate Americans he suspects are a threat to America.  Thus, the explanation for the difference in treatment between Lindh and al-Awlaki:  our leaders have become more fascistic.

Article first published as Why Was al-Awlaki Denied His Constitutional Rights as an American Citizen? on Blogcritics.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina

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the Lindh story was once front page [propaganda] news in the early iraq/afghanistan war, but he's been forgotten. whatever happened to him anyway?
obama surely did not make much of a "decision" to assassinate awlaqui. likely, it was handed to him on a piece of paper and he signed it compliantly. it was just in the stack of papers he had to sign that day, handed over to his adjunct office by the Military Industrial Complex
Clearly, obama was out back smoking that funny stuff during constitutional law class at university.

Be careful with these kinds of blog posts, Kenn - the obamabots are gonna' get You.

Well, living in the Middle East I may be on their list already.
Expatriation is sufficient grounds to be considered a traitor.
Lindh was basically a nobody, whereas al-Awlaki was an al Qaeda spokesman and recruiter.

"The U.S. military knew exactly where he was and could have dropped commandos in to capture him like Seal Team 6 allegedly did with Osama bin Laden."

Why put U.S. personnel at risk, when it was possible to kill al-Awlaki in an isolated vehicle in a remote area, with little chance of killing bystanders?

"Killing al-Awlaki without regard for his constitutional rights as an American citizen is a threat to every American’s protection against tyrannical government."

If the government starts assassinating the county dogcatcher because he wrote a negative letter to the editor about Obama, I'll be concerned too. But we need to make an important distinction. Al-Awlaki was an al Qaeda operative who encouraged Muslims around the world to kill Americans, and who also recruited people to kill Americans. He was also involved in trying to solicit information on possible airline security gaps in order to commit more murders, and was in the process of becoming more involved in al Qaeda operations.

I'm going out on a limb here, but I'll wager that when Americans were murdered at the behest of al-Awlaki, you didn't write a blog post denouncing al-Awlaki for violating their civil rights.

" . . . living in the Middle East I may be on their list already."

With all due respect, if you are actively conspiring to murder American citizens then I hope you are. But there is no doubt that you were on al-Awlaki's list; as an American he would have seen you as a legitimate target.
@ mishima

"Al-Awlaki was an al Qaeda operative who encouraged Muslims around the world to kill Americans, and who also recruited people to kill Americans. He was also involved in trying to solicit information on possible airline security gaps in order to commit more murders, and was in the process of becoming more involved in al Qaeda operations."

These were the facts as brought out at his trial? You know, the event where his Fifth Amendment rights not to be deprived of life without due process of law were enforced?
These are the facts as known through his public statements and his intercepted private communications.

In effect, al-Awlaki joined an enemy army -- without uniforms or specific nationality -- engaged in a war against the U.S. It is fourth-generation warfare, that includes several characteristics such as the lack of distinction between combatants and noncombatants, highly decentralized, seeking to exploit small security gaps, and so on. But it is no less warfare than any other kind of warfare.
Kenn, the responses indicate You made a mistake. You included the words "constitutional rights."

Constitutional rights! Sh*t we don't need no constitution or its stupid claimed rights.

We're america, the world's greatest "democracy" and if we need to shred a stupid old document to prove to their world our boundless right to make war wherever and whenever we please, then so be it.

F*ck it, we americans and we have earned the right to lecture any country we wish about civil rights, and if we HAVE to kill off a few americans to prove the point, then so be it.

I used to think mishima was one of the few thinkers from the right here - that illusion was a fantasy.
Get used to it.

Americans have no rights......
Americans can, and will, be murdered by their government at its discretion....
Americans have only as much freedom as their government allows......
America is now owned, lock, stock, and barrel, by the banksters and globalizing corporations with the connivance and assistance of its own politicians and political parties.....
America has become, to much of the world that it has
trampled, just what some call it - “The Great Satan”
America is not the nation you were taught about in school; it may never have been that nation. Myths have replaced history and even the true reasons for present-day actions.....
It is only a matter of time before the citizens of Amerika will all be treated as Amerika treats the citizens of other countries.

All of the above is, of course, why “those terrorists are jealous of Amerika’s freedoms.”


"We believe that the Constitution of the United States is the best political charter yet created by men for governing themselves. It is our belief that the Constitution is designed to guarantee the free exercise of the inherent rights of the individual through strictly limiting the power of government."

" We reaffirm our belief in the Declaration of Independence, and in particular the belief that our inherent rights are endowed by the Creator. We further believe that our liberties can remain secure only if government is so limited that it cannot infringe upon those rights."

• That the Constitution of the United States is the best arrangement yet devised for empowering government to fulfill its proper role, while restraining it from the concentration and abuse of power;"
"I used to think mishima was one of the few thinkers from the right here - that illusion was a fantasy."

I don't find the ad hominem comment very helpful. I tend to be a social conservative and economic liberal, so I don't make anyone happy. But I see in another later comment you make the outline of an argument based on the Constitution, so I will address that.

The facts, as I see them, are that al Qaeda is an enemy of the U.S., the equivalent of an enemy army, albeit concealing itself among civilians, but an enemy army nonetheless, and that al-Awlaki actively worked as a agent of that army for the purpose of murdering Americans. If you agree with those facts, then we can start there. If not, then I need to know what facts you are working with.

Given the above facts, the issue is whether the U.S. government has the Constitutional authority to kill an enemy agent overseas who also happened to be a citizen of the country that he wishes to destroy, who cannot be apprehended, and who, if he so desired, could simply turn himself in and be afforded constitutional rights.

This issue has already been decided in federal court by Judge Bates, in response to an appeal filed by the ACLU and al-Awlaki's father. In his 83-page decision Judge Bates noted that

"This Court readily acknowledges that it is a 'drastic measure' for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a 'terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009.' But as the D.C. Circuit explained in Schneider, a determination as to whether 'drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.' Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff's claims, the Court finds that the political question doctrine bars judicial resolution of this case."

I'm not an attorney and thus cannot speak to the specific arguments in Judge Bates' decision. But given that this is the ruling, and it has not been overturned on appeal, I'm inclined to accept it.

That said, I suspect you don't accept it. If so, then I have to wonder how you would handle someone such as al-Awlaki -- a fellow who was actively plotting the death of Americans in association with a sworn enemy, and from a location in which he was virtually immune either from prosecution or arrest. I don't know, but it may be that had nazi Germany staffed their Normandy defenses with traitorous American citizens, you would have had our invading forces armed not with guns and ammunition but with warrants and handcuffs.
Judge Bates was on detail as Deputy Independent Counsel for the Whitewater investigation from 1995 to mid-1997. In 1998, he joined the Washington law firm of Miller & Chevalier, where he was Chair of the Government Contracts/Litigation Department and a member of the Executive Committee. From September 1995 until leaving in March 1997, Bates worked as Deputy Independent Counsel for Kenneth Starr and the Independent Counsel's office during the investigation into President Bill Clinton.
On September 4, 2001, Bates was nominated by President George W. Bush to a seat on the United States District Court for the District of Columbia,

Superb credentials to make a ruling contrary to the original words of the constitution.

Sorry, mishima, if it bothers you that I still subscribe to the Constitutional rights as enumerated in the sixth amendment.

My previous post indicates that there are more than one conservative who shares my belief.
In the beginning...we formed militias to fight foreign invaders or domestic insurrectionists. Those insurrections, as in the Whiskey Rebellion (had it not been calmed by Mr Gallatin), would not have been furious battles of writs and appeals from either side. Washington had his troops primed to deal death, as did the rebels, who had already done that.

IF al-Awlaki was involved in war against America, there's no rational consideration that avails him of the rights he defiantly opposes and seeks to end, if he could. Lights out, and good riddance.
I appreciate defending rights, but this sure as hell isn't the poster child I'd choose.
What Mishima said, and Paul. Al-Awlaki's own statements tell the story; he regarded the United States as an enemy and stated repeatedly that U.S. citizens were a legitimate target and that it was OK to murder them. That is a matter of public record. We need to ask ourselves: if an American had decided to ally himself with German or Japanese forces in WWII, would we have worried about his constitutional rights, would we have risked the lives of our troops to capture him and bring him back here for trial? Nope, and with good reason. Fuck Al-Awlaki and the horse he rode in on.
What a great country, where we can all make our own decisions as to which parts of the constitution we like and whom to apply it to!

I'm out - the floor belongs to the interpreters.

By the way, wasn't that exactly the same way the decider decided which parts of the constitution to uphold?
You can divorce rights from reason, but in doing so you weaken, not strengthen, rights. By allowing this absurdity of granting a sworn enemy rights you undermine the reasoned cases for rights for the deserving. Indeed, the observer will think your object is to cry foul no matter the facts of the case.

IF he has done what was claimed -- and I haven't followed this -- then mourning the loss of rights he had already abandoned is crying wolf as a double entendre.
"What a great country, where we can all make our own decisions as to which parts of the constitution we like and whom to apply it to!"

Damn right it's a great country, you can call for the murder of Americans, as long as you stay in the country, leave that border, and all fair in love and war!!

Trust me, if I went across the border into Canada, built my group of 'NUKE THE EARTH AND SPARE NOT THE HEADS OF AMERICANS...' I would probably end up dead but start that group up in Kansas, I'd still end up dead, but the Feds would have to send in the Cops and no drones baby!! GOD BLESS THE USA!!! FREEDOM!! FREEDOM!!

Seriously, if you're going to kill Americans, do it from the comfort of your doctor's office or snack food company, or grow melons and water them with water from Mexico!! :D


~wanders off~
There needs to be some means by which citizenship can, for just cause, be withdrawn, in cases such as this.

Either that or a means by which a person can be adjudicated an “enemy citizen” and would then be treated no differently than any other enemy who engaged in acts of war against the nation.

If there is no provision in law for the president to simply order a citizen's death, then the life of every citizen is in jeopardy should they anger or annoy a president sufficiently.

There MUST ALWAYS be some form of due process involved in the taking of a citizen’s (and hopefully anyone’s) life, except in heat of battle. And if we were really civilized we’d never allow us to initiate military action against another country unless directly and without provocation, attacked by that country.

That said, we all know of those who have killed because they think that god wants them to do so and there are certainly those in government agencies who will kill if they think the president wishes it.

It just goes to show how few even READ the Constitution these days, even in the midst of a slow-moving written debate about it.

One would have thought that this debate would have revolved around the ". . . actual service in time of War or public danger . . ." exemption in the Fifth Amendment, but then again, one must remember where one is. . . .
I admire your many attempts to appear intelligent. It's bound to pay off someday, to some one, somehow.
It's nice you provide a distinction without a difference. Why not throw in the 14th and then act like you know something? Why not explain your theory of how the Constitution was written to empower the states? How about detailing why you say the Founders were libertarians, a "philosophy" that didn't exist then?

You seem to think OS crowd trembles in fear of your intellectual laser making a dot on their heads. They know it's never followed by the bullet of ability, and the fearful trembling you see is merely an attempt to stifle laughter.
And see, “Anwar al-Awlaki and Obama’s Queen of Hearts Memo” at
And see, “Anwar al-Awlaki and Obama’s Queen of Hearts Memo” at