‘A Due Process in War’

In respect of the killing of Anwar al-Awlaki, this newspaper is with our friends at the Wall Street Journal, who issued over the weekend a particularly well-put editorial saying that the administration deserves our congratulations and our thanks. Our view is that America is at war. The war began the moment we were attacked — that is, it was declared by our enemies. For our part, we’re confident that Congress acted lawfully in granting the president the authority to fight this war. And that, for all our other policy disagreements with President Obama, his decision to attack on Friday was the result of what the Washington Post quoted an administration officials as calling “a due process in war.” We doubt there’s a court in the land that will object.

So when we read of Congressman Ron Paul’s harsh objections — he called the killing of al-Awlaki an “assassination” — we sent him an email. We asked him whether he’d have been prepared for Congress to grant a letter of marque and reprisal against al-Awlaki? It was a reference to one of the basic war powers the Constitution gives to Congress, the power to grant letters of marque and reprisal, which are licenses of private parties to commit acts of war. In the wake of the attacks of September 11, 2001, Dr. Paul had introduced a bill to grant letters of marque authorizing holders to seize Osama bin Laden an any other individuals involved in the attacks of 9/11. He is one of the few legislators prepared to unsheathe that sword, and we asked whether the Letter of Marque and Reprisal Act he had in mind would have covered the attack on al-Awlaki.

“Yes, possibly,” was the way Dr. Paul started his typically brief reply. But he went on to aver that “their” — meaning, our government’s — “evidence was so bad they couldn’t indict him. They can’t even prove he was actually a member of Al Qaeda.” Since that email exchange, we have heard similar sentiments aired by such leftists as, say, Rachel Maddow. Forgive us, but we think it’s thin gruel. We keep thinking of the warning issued long ago by the fourth chief justice of the United States, John Marshall, in one of the greatest treason cases in our history. It involved two confederates of Aaron Burr who’d been brought up for betraying their country. Marshall let them off the hook, because while they’d plotted war, the war hadn’t actually been levied.

Then Marshall’s warning: “It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” In other words, it doesn’t matter whether al-Awlaki was a card-carrying member of al-Qaeda or far from the action, so long as he was leagued in the general conspiracy.

That is one of the meanings of war, even one that was declared by our enemies, and it’s the president’s responsibility and Congress’s to fight it with an aim to win. The idea that al-Awliki should have been brought back for trial strikes us as an error, given that it is in the nature of war — and particularly this war — that the evidence is beyond the reach of the courts, whether civilian courts or military tribunals. It is why it is such a grave responsibility to be an officer in the military or a commander in chief. In a time of war, where the action is often on distant battlefields, one is making decisions where the courts can’t always reach and where not all the evidence can be tested in an adversarial proceeding.