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Assassinating with Impunity

Anwar al-Awlakiby Jacob G. Hornberger

Statist supporters of President Obama’s assassination of an American citizen overseas, Anwar al-Awlaki, are convinced that Awlaki’s actions warranted his assassination. There is at least one big problem, however, with their convictions: How do they know what Awlaki did to warrant his assassination? Moreover, how do they know that the law permits an assassination under such circumstances?

The press is alleging that Awlaki served as a propagandist for al-Qaeda, that he exhorted Muslims to commit terrorist attacks on the United States, and that he was participating in the operational planning of terrorist attacks.

How do we know whether any of this is true? We don’t.

In fact, that’s what a trial is all about. One of the principal jobs of the jury is to determine what exactly the facts are. The government comes into court with criminal charges, as set forth in the grand jury indictment. The government then presents sworn testimony, through witnesses and documents, establishing exactly what the defendant has done.

But a critically important aspect to a trial is the defendant’s right to cross-examine the witnesses the government calls to the stand and to challenge the legitimacy of any documents it puts into evidence.

Why is that important? Because the law recognizes that government officials sometimes lie, even under oath and that they also sometimes conjure up fake documents to help secure a conviction. Why do they do that? Because they’re convinced of the defendant’s guilt but simply lack enough evidence to convince the jury to convict.

Consider, for example, the Randy Weaver case, where federal agents killed Weaver’s wife and son. After shooting Weaver’s son in the back and his wife in the head and severely wounding Weaver himself, the feds indicted Weaver for attempted murder of the federal agents who had killed his wife and son.

When the case came to trial, the jury acquitted Weaver. Why the acquittal? The feds were caught committing perjury during the trial. They were so convinced that Weaver was guilty that they were willing to do anything, including lying in an official federal court trial, to secure a conviction. Weaver ultimately sued the feds for the murder of his wife and son, and the feds ended up paying millions of taxpayer dollars in settlement, an implicit acknowledgement that it was the federal government, not Weaver, that was the murderer.

Consider the Amanda Knox case in Italy. Prosecutors there were as convinced of Knox’s guilt as President Obama, the CIA, and the Pentagon were convinced of Awlaki’s guilt. Yet, after reviewing all the evidence an appellate jury acquitted Knox, who was immediately released from custody. If there had been no trial or appeal and had the state had the authority to simply punish Knox for what they were convinced she had done, she’d still be in jail today and would be spending the next few decades there.

In a trial, the accused has the right to take the witness stand himself and tell the jury that he’s innocent — that he didn’t do what the government is charging him with. He also has the right to call witnesses to help establish his innocence.

At the end of the trial, the jury decides whether he really did commit the offense with which he is charged.

Let’s assume the jury convicts. That’s still not the end of the story. The judge still has to decide whether the defendant’s actions truly constitute a criminal offense under the law.

Let’s assume, for example, that the jury found that Awlaki exhorted Afghanis to resist with violence the U.S. occupation of Afghanistan. Let’s assume that that’s all he did and that the jury found him guilty of the offense.

That still wouldn’t be the end of the matter. In post-trial motions, Awlaki’s attorneys would argue that the jury’s verdict should be thrown out based on the right of free speech, which is guaranteed by the First Amendment. They would argue that no matter how despicable people might consider Awlaki’s exhortations, freedom of speech encompasses the right to make despicable exhortations.

Even if the judge disregarded the defense position and entered a judgment of conviction, the defendant could still appeal and make his legal arguments all the way to the U.S. Supreme Court.

All that was rendered moot by the president’s assassination of this American citizen. Sure, it’s entirely possible that he was guilty of conspiracy to commit terrorism, as some in the press are alleging, but owing to his assassination, we can never know that for sure.

When Awlaki’s father brought a legal action seeking an injunction prohibiting the government from assassinating his son, the federal court summarily dismissed the case, holding that the father lacked the legal standing to bring the case. Awlaki himself, the judge held, would have to bring the case. But of course, that was ridiculous given that CIA or FBI or U.S. military assassins would undoubtedly have taken him out as he was walking to the courthouse.

Meanwhile, Congress has shown no interest in conducting an official investigation into the president’s assassination of an American citizen. One possible reason is because the particular federal agency that committed the assassination was the CIA, an agency that few members of Congress are willing to confront given its overwhelming power.

So, if the president, the CIA, and the military have the omnipotent power to assassinate Americans overseas, with absolutely no interference by the legislative and judicial branches, doesn’t that make it rather dangerous for American critics of U.S. foreign policy to travel overseas? It would seem so. But then again, how safe is it for American foreign-policy critics here at home, given the government’s long-held position that the entire world, including the United States, is a battlefield in the war on terrorism?

Jacob Hornberger is founder and president of the Future of Freedom Foundation.

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