Bin Laden, al-Awlaki and Glenn Greenwald's Delicate Fifth Amendment Dance (updated: Greenwald responds, calls TPV "cultist")

Many of you know about Glenn Greenwald, a contributor at extreme libertarian CATO Institute, (he also publishes and sells at least one White Paper on CATO's website and bookstore), and a pretend-liberal on Salon.com, who has a vendetta he pursues ruthlessly against the Obama Administration. If you listen to Greenwald, he actually sounds a lot more like a Tea Partier than any average American. Everything he writes has that "Boo! The government is taking your rights away!" scare tactic under the cover of "civil libertarianism." In his Saturday posting, he was very upset that President Obama is trying to take out a radical terrorist cleric. I'll get to that, but here's the part that kind of tells you everything you need to know about just how utterly insane Greenwald's logic has become:
There are certain civil liberties debates where, even though I hold strong opinions, I can at least understand the reasoning and impulses of those who disagree; the killing of bin Laden was one such instance.
Ahh. You see, the killing of Bin Laden was a "civil liberties" issue, and in the infinite wisdom of one contributor of the CATO Institute, we violated bin Laden's civil liberties. The damn Navy SEALs. I guess Greenwald thinks that they should all be court martialed for killing bin Laden instead of reading him his rights. Actually, we don't have to guess. We already know that Greenwald wanted the SEALs to act like the local police.

But of course, see, he can understand the impulses of the rest of us stupid people about that. But come on. Ordering the execution of a radical terrorist cleric? Now that's going too far. This is the story of Anwar al-Awlaki, the American born radical terrorist cleric who has is a regional commander in Al Queda in the Arabian Peninsula and is, in addition to preaching, actively recruiting people to attack American civilians. Greenwald's complaint? Due process.
...pointing out that the Fifth Amendment to the U.S. Constitution expressly guarantees that "no person shall be deprived of life without due process of law" -- and provides no exception for war -- is the sort of tedious legalism that shouldn't interfere with the excitement of drone strikes.
Ahh. Yes, tedious legalisms indeed. Greenwald's legalism, though, extends only to the extent that it helps his argument that it is illegal for the President to order the assassination of an American citizen, period, no matter what. Except, Mr. Constitutional Scholar pretty conveniently ignores the fact that nowhere in the Fifth Amendment is the word "citizen" mentioned. here is the full text:
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 offense 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.
Do you see the word "citizen" there? Neither do I. Contrary to what Greenwald (and George W. Bush) thinks, the 5th Amendment, like the rest of the Constitution, applies not just to citizens but "persons." The fifth amendment makes no distinction between a US citizen and a noncitizen. So if we are to follow Greenwald's logic, and replace "American citizen" with "person" in keeping with the 5th Amendment, the conclusion is that the President cannot authorize the assassination of anyone, anywhere. Even Glenn Greenwald isn't arguing that - even though that is the logical conclusion of the argument he's making. Why isn't he saying it then? Because it won't be as potent a weapon against President Obama as saying "he wants to kill American citizens!"

I am no Constitutional lawyer, but it seems to me that a reasonable interpretation of the Fifth Amendment would define its application to all persons under and subject to the laws of the United States. That is why torture under US custody is wrong - not because it's being done to citizens or non citizens, but persons who are under the control of the United States. It is foolhardy, however, to think that anyone outside the territories, control or protection of the US law, plotting terrorist against the United States is entitled to the protections of the Fifth Amendment. If, however, al-Awlaki were to come within the custody or territory of the United States, the protections of the Fifth Amendment would apply to him regardless of his citizenship status. I have a feeling though that he's not going to do that willingly. Incidentally, Greenwald fails to mention that there is a warrant out in Yemen for al-Awlaki's arrest. And for the CIA, he's on the capture-or-kill (as opposed to just kill) list.
But the notion that the President has the power to order American citizens assassinated without an iota of due process -- far from any battlefield, not during combat -- is an idea so utterly foreign to me, so far beyond the bounds of what is reasonable, that it's hard to convey in words or treat with civility.
Ah, now you see why killing Bin Laden was a civil liberties issue. See, when he was killed, bin Laden too was "far from any battlefield, not during combat" - the only difference being that bin Laden was not an American citizen. So that's why Greenwald can "at least understand the reasoning and impulses" of you puny little, sad people. He can "understand" the argument that bin Laden could be shot and killed only because he wasn't American. If by some chance, he were, killing him would just be terrible! Even more terrible than it was!

Then we have this:
How do you even engage someone in rational discussion who is willing to assume that their fellow citizen is guilty of being a Terrorist without seeing evidence for it, without having that evidence tested, without giving that citizen a chance to defend himself -- all because the President declares it to be so?
No evidence of it? Really? The President declares it to be so? That's as idiotic as it gets. First of all, there's this:
American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad.
Evidently, Glenn Greenwald does not think the President has a responsibility to protect the lives of innocent civilians here at home and Americans who live abroad. After all, if Glenn Greenwald hasn't seen the evidence of al-Awlaki's terrorist activities, mostly because Greenwald has kept his eyes wide shut, then it must be that no such evidence exists, and the counterterrorism officials are just lying because they want to kill an American. Okay. Except...
Under questioning by the FBI, [Christmas Day "underwear" bomber] Abdulmutallab has said that he met with Awlaki and senior Al Qaeda members during an extended trip to Yemen this year, and that the cleric was involved in some elements of planning or preparing the attack and in providing religious justification for it, officials said.
After the plot, al-Awlaki also gloated about the fact that Abdulmuttalab was his student. No, no evidence at all. Oh, by the way, Al-Awlaki has called for the killing of American civilians more than once, and the man doesn't show up for trials when one is given to him.
Awlaki is currently being tried in absentia in Yemen for his alleged role in the kidnapping and murder of a French national. On Saturday, Judge Moshen Allwan ordered Awalki to be "arrested by force, dead or alive" when he failed to appear at the trial.
A federal judge last year threw out a lawsuit against the president's order, both on the ground of standing and on the ground that the reach of the federal judiciary simply doesn't extend to targeted killings outside of US jurisdiction. I should mention that al-Awlaki is free to come back here anytime and revive that lawsuit.

This is not about civil liberties. We live in a complex world, and we shouldn't be pretending otherwise. Civil liberties apply to persons who are within the territory or custody of the United States, not to those who are active terrorists and fugitives from the law even in the country they are living in. The distinction is not one of citizenship, Mr. Greenwald, it is one of control and custody of the United States. The President of the United States has every right to authorize the targeted killing of anyone who is calling for the killing of American civilians as part of a terrorist organization that has and does target American civilians with violence - especially when we have information that he helped plan a specific foiled attack and that he's a fugitive from the law of the place he is in.

UPDATE: Reactions from Greenwald!

I told you he reads TPV! And he's very hot and bothered by being called a CATO "fellow." He tweets at me that he's not a CATO fellow, but a mere contributor to CATO's playground of ideas.

greenwald merely CATO contributor

Ohh. Okay. I made the correction. Sawwy, dude. Feel better now? By the way, Greenwald has more than just "wrote once for CATO Unbound" - he published a white paper on the CATO Institute (not just "Unbound") website, it encourages you to "purchase a copy" from the CATO bookstore. So umm, Greenwald makes money off of the extreme libertarian CATO Institute.

Oh, also, Greenwald thinks that The People's View is cultist - that's right, guys, we're a cult!

Greenwald calls TPV cultist

Please note, Greenwald only "engages cultists" like me on "lies."

Greenwald admits TPV tells truth about his writing

Well, since he did not address any other part of this article or the one I wrote about his insanity last week, I have to assume that he thinks that other than failing to distinguish between a "fellow" at CATO and a mere contributor at CATO, we have been generally calling it about right on his screeds. :-)