Column for Dec. 1, 2011

During recent a Republican Presidential candidate debate, Newt Gingrich was asked about his views on the killing of “enemy combatants” who are American citizens living overseas and actively fighting against America during a state of war (such as Anwar al-Awlaki). A member of the press tried to chastise Mr. Gingrich saying that the “rule of law” required a court of law to take the decision to kill an American “citizen”. Personally, I found Gingrich’s answer brilliant and on target (if you pardon the pun). Newt Gingrich is often one of the smartest people on stage during debates, but I don’t know that he will be a successful candidate and capable of taking The White House in the next general election.

I recently had the same conversation with a friend of mine from high school. I take the side of Newt Gingrich which is that someone who is actively pursuing war against America need not be convicted of treason before he can be a target of war. My friend, Roger, a career military man, takes the opposite opinion, in that he believes that the Constitution requires that a bad guy be tried and convicted of treason before we can whack him because he is technically an American citizen by birth, regardless of where he currently resides. With Roger’s permission, I am sharing the conversation.

Me: [sharing a video clip of the relevant part of the debate] “Gingrich gets it correct and this media hack moderator is a bonehead.”

Roger: “Troy, are you kidding me? Guilty under review? Where is that in the Constitution? The alleged (likely happened but we still have an obligation to try a US citizen before we execute them, especially when we have the capability to bring them to justice, as we did in the case of Awlaki) crime Gingrich describes is TREASON. Treason happens to be the only crime specifically outlined in the Constitution. 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.

“This is just populist drivel for him to get himself elected. Mind you, I'll vote for him if he is the nominee for one simple reason, HE IS NOT BARACK OBAMA.

“It really saddens me that the Constitution that I swore to defend and did defend for 21 years is so easily ignored.”

Me: “No, I am not kidding you. Where is it in the Constitution that someone who is actively engaged in war activity against the US (which is indeed defined as treason under the Constitution) and is resident in another country shall be captured, tried, and convicted rather than eliminated? The populist drivel is that he must be captured, tried, and convicted. When the individual is an active enemy, he is to be considered as such, regardless of his nationality. That is just common sense. If it means targeting someone actively involved in combat against the country, I do not see where the Constitution requires a criminal trial rather than an act of war during war.

“I am well aware of Article III Section 3. I taught on the Constitution and US history for about four years. Attacking your enemy in combat, regardless of the individual's nationality is not ignoring the Constitution. It would be different if we were no longer in a state of active warfare and the individual captured, or even that this scumbag was captured as a POW. THEN, we would have a case for a criminal case of treason and a reason for a trial. That is the nature of war. If a scumbag gets taken out during a wartime operation, c'est la guerre.

“If in the 1700's General Arnold was taken prisoner (and if the Constitution was in force then. But the Articles of Confederation did not have a provision for defining treason, only about extradition for, or as a reason to be able to inhibit freedom of speech in Congress) then there would have been a reason for a trial and a charge of treason. If he was shot and killed during an attack on the enemy, I can not fathom for one moment that there would have been a debate whether or not it was wrong to have put a musket ball through his head while engaged in warfare...”

The conversation was longer than this, but it is a relevant discussion about the future of our country and how we conduct our affairs. On the one hand, the arbitrary power of an executive to declare someone an enemy combatant and summarily execute them could lead to a slippery slope and the killing of American citizens at home or abroad without a court trial. On the other hand, it is also a matter of properly, efficiently, and swiftly conducting wartime operations in the case of scumbag terrorists plotting our demise.