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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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Assassinating with Impunity


Statist supporters of President Obamas assassination of an American citizen overseas, Anwar al-Awlaki, are convinced that Awlakis 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 dont.

In fact, thats 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 defendants 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 theyre convinced of the defendants guilt but simply lack enough evidence to convince the jury to convict.

Consider, for example, the Randy Weaver case, where federal agents killed Weavers wife and son. After shooting Weavers 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 Knoxs guilt as President Obama, the CIA, and the Pentagon were convinced of Awlakis 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, shed 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 hes innocent that he didnt 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.

Lets assume the jury convicts. Thats still not the end of the story. The judge still has to decide whether the defendants actions truly constitute a criminal offense under the law.

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

That still wouldnt be the end of the matter. In post-trial motions, Awlakis attorneys would argue that the jurys 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 Awlakis 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 presidents assassination of this American citizen. Sure, its 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 Awlakis 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 presidents 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, doesnt 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 governments long-held position that the entire world, including the United States, is a battlefield in the war on terrorism?

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.