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No requiem for terrorists
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No requiem for terrorists

October 24, 2011, 1:49 pm
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Muammar Gadaffi was killed last week. Indications are that his end came by a bullet to the head after he had been captured. News of the end of this dictator’s reign sparked celebrations in Libya by those whom he had kept under the heel of his boots for more than four decades. Thus far I have seen no protestations in the media about the apparent execution after he had been captured and disarmed. Contrast this silence with the outcry from the ACLU, the Center for constitutional Rights and other self-appointed defenders of liberty after Anwar al-Awlaki was killed by a predator drone last month.

The New York Times said that as an American citizen, Al Awlaki was entitled to due process. Michael Ratner, of the Guardian put it this way, “Is this the world we want, where an American citizen living outside a war zone can be placed on a target list and then murdered by a drone?” Al Awlaki was an American citizen who had morphed into a fervid Al Qaeda operative waging war on western nations. Over the last few years, Al Qaeda has claimed responsibility for the London Subway bombing, the bombing of a train station in Madrid, and the bombing of the US embassies in Kenya and Tanzania. The bombing of the USS Cole was a direct attack on a US naval vessel. But 9/11 was Al Qaeda’s most spectacular attack. It was a direct attack on the US. Thousands of lives have been lost and countless billions in property destroyed as a result of these attacks. We are at war with Al Qaeda,

Our law provides that we can infer that one has renounced American citizenship by “serving in the armed forces of a foreign state if such armed forces are engaged in hostilities against the United States”. The fact that Al Qaeda is an organization and not a country waging war on us is irrelevant. Lives are lost and property destroyed by these armed attacks. In war time enemy combatants are killed not because they are guilty but because they are potentially lethal agents of an enemy out to kill and destroy us. Al Awlaki may not have worn uniform of an enemy country but by his commitment and allegiance to Al Qaeda, he became an enemy of the US and thus a legitimate military target. No advance warning is necessary, no attempt to arrest or capture and no due process in required before he was targeted.

The choice of means by the President, our commander-in- chief in order to prevent murderous, terrorist attacks before they happen, is not among the subjects in which a court should intervene. We are engaged in a war and the court should not put itself into the heart of the combat zone. In light of the armed conflict, the laws applicable to these acts are the laws of war, or the laws of armed conflict, which are part of international law. And unless those calling for due process for Awlaki  are willing to say that we are not at war with terrorists, that 9/11 and the bombing of the US embassies were not acts of war, then there is no basis for calling due process.

One of the preambles of the constitution is that “Congress shall provide for the common defense…” This must mean that in any war, the US may take measures to repel and defeat the enemy. The US is permitted to defend itself against terrorism not only via means of law enforcement but by whatever military means it finds necessary. Terrorists actively participating in armed conflict are not civilians. They are party to the armed conflict, and thus they can be attacked. Our constitution is not a suicide pact, and commonsense dictates that it cannot apply when the president takes action to inflict punishment on those planning our destruction. We are fighting a war on terror; the only uncertainty is the time place and manner of the next attack.

The price we all pay for enhanced security is the loss of some of our freedoms_--- at airports train stations or other places where the danger of attack is greater. The price the terrorist pays is the forfeiture of his right to due process which is meant to secure the rights of persons charged with crimes.

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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