More questions than answers

One of the trademarks of a dictatorship is the Law of Rule. When the forces of democracy finally topple the old regime (which they always do), the clarion call is for the Rule of Law. In order for civil society to evolve, the arbitrariness and capriciousness of the Law of Rule must be done away with.

But in nearly every one of those countries where the old regime has been replaced, the old dictator has either taken refuge in a friendly country or met a gruesome end. This past week in Libya was no exception. Col. Muammar Gaddafi was killed after attempting to escape from his hometown of Sirte.

The former dictator was found hiding in a culvert after his convoy came under fire from NATO forces.

Exactly how Col. Gaddafi met his end is not certain. What is certain is that it was an extra-judicial killing - in other words, Col. Gaddafi was murdered.

Sure, not too many folks are going to be too upset that he's dead. But, does killing a defenseless man who has just been captured make life in the new Libya any better than life in the old Libya? What does it say about the prospects of the Rule of Law?

A larger question is whether NATO forces should have been involved in what amounted to a civil war in Libya. Was there any justification for outside forces to align themselves directly with one side in an internal conflict in another part of the world? Let's not kid ourselves, by declaring no-fly zones in Libya, NATO was providing support for anti-Gaddafi forces in the country. What price will be paid by the new government? What promises were made? What was the cost of NATO's air power?

The task in Libya is now to establish a new government and constitution and to implement the Rule of Law so that all of the trappings of a democratic society can evolve. Unfortunately, the first chance the new rulers had to implement the Rule of Law was an abject failure.

See also:

"Another one down," Gamso for the Defense (Oct. 21, 2011)
"On the killing of Moammar Gaddafi," Koehler Law Blog (Oct. 21, 2011)
"Mystery surrounds Gaddafi's end," BBC News (Oct. 21, 2011)

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Death without due process

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 offence 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. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)

Update: You are about to witness a murder

On Tuesday night the State of Texas murdered Steven Michael Woods. Mr. Woods was convicted of the 2001 murders of Ronald Whitehead and Bethena Brosz. But Mr. Woods wasn't the man who killed Mr. Whitehead and Ms. Brosz. Marcus Rhodes was the man who pulled the trigger.

Despite that fact, Mr. Woods was convicted and sentenced to die while Mr. Rhodes plead guilty and received a life sentence. Under Texas' law of parties, Mr. Woods was considered just as liable for the murders as Mr. Rhodes.

While conceptually the law of parties makes sense, when applied to a murder case it rarely results in justice. There is something fundamentally unjust that Mr. Woods is dead while the man who actually pulled the trigger is sitting in a prison cell - alive.

"You're not about to witness an execution. You are about to witness a murder," -- Steven Michael Woods

If we are going to insist on killing inmates, we should at least draw the line at killing inmates who actually took another life. While Mr. Woods is hardly innocent, he certainly didn't deserve to be strapped down to a gurney and injected with a lethal combination of drugs.

What could be more cruel than the state-sanctioned murder of a man who did not take the life of another? I am deeply troubled by what happened last night in Huntsville. I'm angry. Gov. Rick Perry had the opportunity to do the right thing and commute Mr. Woods' sentence to life without parole - but the fair-haired one is more concerned with conning voters around the country and fueling a campaign with the blood of others.

I can't decide if Rick Perry isn't troubled with the number of people he has allowed to be killed because he is too simple-minded to understand it or because he's a sociopath.

The ultimate sanction by the state is the taking of a life. That act by itself is the greatest intrusion the government can make in the lives of its citizens. If the Bill of Rights is to mean anything, what happened in Texas on Tuesday night must not be allowed to happen again anywhere else.

Click here to download Execution Watch.

On statistics and the death penalty

Doug Berman over at Sentencing Law and Policy presents us a new statistic to measure the efficiency of state death machines - "Executions per Death Sentence" or EPDS as the sabermetricians would say.

The Death Penalty Information Center calculated the number of death sentences handed down by state and the number of inmates each state murdered since the death penalty was reinstituted in 1976. Contrary to what you might think, Texas and Ohio do not head the list.

The old commonwealth, Virginia, heads up the list with an EPDS of .725, meaning that for every 100 death sentences handed down, 72.5 executions are carried out. Texas does pop up at number two on the list with an EPDS of .498, however. The national rate, by the way, is .150.

At the bottom of the list of states that have murdered at least one inmate since 1976 are Pennsylvania (.008), California (.015) and Idaho (.025).

If we look at the murder rates by state in 2009 we find that Virginia had a murder rate of 4.4 homicides per 100,000 people while Texas had a murder rate of 5.4 homicides per 100,000 people. Pennsylvania's murder rate was 5.2 homicides per 100,000, California's was 5.3 and Idaho had a rate of 1.4.

Since 1976, New York, New Jersey, New Hampshire and Kansas are alone in not murdering inmates. New York's murder rate was 4.0. New Jersey's was 3.7. Kansas rate was 4.2 and New Hampshire brought up the rear with a murder rate of .08.

So, based on the data at hand, there would appear to be little or no correlation between the number of executions carried out and the homicide rate in any given state. But, of course, having a reputation as a killer works wonders for the candidates on the right running for the White House.

Just ask George W. Bush or Governor Goodhair.