For war consists not in battle only, or in the act of fighting, but in a tract of time wherein the will to contend by battle is sufficiently known; and therefore the notion of time is to be considered in the nature of war as it is in the nature of weather. For as the nature of foul weather lies not in a shower or two of rain but in an inclination thereto of many days together, so the nature of war consists not in actual fighting but in the known disposition thereto during all the time there is no assurance to the contrary. All other time is peace. (Thomas Hobbes, Leviathan, Chapter 13)
I doubt that the United States has ever engaged in war without some U.S. citizens taking part with those making war against us. In his vociferous reaction against the recent killing of Anwar al-Awlaki Ron Paul certainly reminds us of the serious and troubling issues involved in the decisions required to take effective action against such self-selected enemies of their country. Paul and those who applaud his advocacy of passivism in matters of national security claim constitutional grounds for their objection to deadly national security operations that target U.S. citizens, even when these citizens plan and direct warfare against the United States as al-Awlaki reportedly did. They accurately point out what the Fifth Amendment to the U.S. Constitution states: “nor shall any person be…deprived of life, liberty, or property, without due process of law….”
Ron Paul is well and favorably known for insisting that the U.S. Constitution be strictly adhered to and applied. But in this case does he himself fail to take careful account of what it actually says? The Fifth Amendment’s words do not restrict the due process requirement to the government’s dealings with citizens of the United States. They apply to “any person”, with nothing said about that person’s citizenship status. In order to act with due regard for the Constitution in this respect we must therefore consider what the Fifth Amendment requires of the U.S. government in its conduct toward all persons, not just those who are U.S. citizens.
But considered in light of this more accurate observation of the Constitutional context, Ron Paul’s criticism implies restrictions on U.S. government action that are so broad as to preclude the possibility of any warlike actions in defense of our national security. It effectively erases the prudentially necessary distinction between warfare and law enforcement. Every military and national security operation would have to be regarded as an exercise in law enforcement, during which U.S. personnel would have observe all the safeguards entailed by the due process presumption of innocence.
In time of war, this would endlessly complicate operations that depend on secrecy, surprise and deadly swiftness. It would lead to absurdities likely to prove inexcusably fatal to our military and national security personnel. Apparently, the authors of the Fifth Amendment realized this. The first clause of the amendment applies the procedures of law enforcement “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…” This prudent exception explicitly recognizes the special exigencies connected with the conduct of military and national security operations (i.e., operations that deal with ongoing public dangers).
This exception reminds us of a truth that the situation of America’s founding generation did not permit them to forget: no written provisions of law can deal with every emergency, every situation and circumstance. Therefore, prudence and common sense will always be required by those determined to act with respect for the provisions of constitutional government. This does not mean that any action taken in the course of military and national security operations must be accepted without question. But it does mean that not every such question can be clearly answered by citing the words of the Constitution. The Executive should always act with due regard for the Constitution, but perforce that also involves due regard for circumstances that threaten the safety and existence of the people the Constitution exists to serve. To paraphrase, with respect, what Christ said of the Sabbath, the Constitution exists for the people, not the people for the Constitution.
Ironically, this reasoning compels me to conclude that Ron Paul’s demand for a bill of impeachment against Barack Obama should be given serious consideration. Unless the people, through their representatives, seriously scrutinize Executive actions that appear to contradict the Constitution words, how can they be certain those actions were, in truth, justified by prudence and common sense? Sometimes (as, I think, in the case of the killing of al-Awlaki) such scrutiny will lead to overwhelming defeat of an impeachment bill. But at other times a majority of the people’s representatives, influenced no doubt by the common feelings of their constituents will unite to demand a full Senate trial of the case. Both the legislative and executive branches of our government will benefit from the greater sense of responsibility and accountability this process encourages. So, in fact, will the security of every person’s unalienable and/or Constitutional rights. Prudence is essential to good government, but so is careful and habitual scrutiny of any extraordinary actions taken in its name.