Category Archives: Obama Administration

The Real Minimum Wage Problem

The Real Minimum Wage Problem

Jordan Rogers

In his State of the Union address on Tuesday, President Obama called on Congress to raise the minimum wage to $10.10 from its current rate of $7.25.[1] However, the President’s speech failed to call for legislation which would also adjust the minimum wage to account for the effects of inflation.[2] This measure, arguably, would make more of a difference in the living standards of those who work for minimum wage.

            To demonstrate the effect of inflation on the minimum wage, one need only consider the answer to the following question: What is the highest that the U.S. minimum wage has ever been? If your answer is the current statutory minimum wage of $7.25 you would be both right and wrong. In nominal[3] terms, the current statutory rate is the highest it has ever been.[4] In fact, since the first minimum wage of $0.25 was set in 1938 it has been raised on twenty-two occasions[5], resulting in a twenty-nine fold increase.[6] If the analysis were to stop here, it might seem that the minimum wage had steadily and significantly increased.

            However, the analysis cannot stop here, but must take account of the effect of changing prices of consumer goods and services during the life of the minimum wage. The reason this matters is that if the prices of the goods and services that consumers buy increase faster than their wages, their buying power is diminished. By contrast, if wages increase faster than the costs of goods and services the buying power their buying power is increased.

When the minimum wage is adjusted from nominal to real terms, the narrative is considerably different that it appears on its face.[7] Adjusted for inflation, the federal minimum wage started at $4.08 in 1938 and peaked in the 1968 at $10.77.[8] Viewed in real terms, the minimum wage has, from its inception to its current level, actually failed to even double (compared to a twenty-nine fold increase when considered in nominal terms). Further, whether the current proposal to set the minimum wage at $10.10 would really be a raise, as President Obama implied in his State of the Union address, for minimum wage workers is dubious at best. President Obama said that Congress should “[g]ive America a raise.”[9] However, how many workers would really consider it to be a raise if their wages had fallen over three dollars from their peak and were now going to be raised to a level still below their peak? This is exactly the situation that minimum wage workers find themselves in when you consider wages in real terms. The counter argument is that the comparison should be between the real minimum wage in recent years and the proposed minimum wage. It is true that if this is the measure, then $10.10 per hour would be a raise in both nominal and real terms.

However, unless this amount is indexed to inflation minimum wage workers are likely to see the real value of their wage decline as the economy begins to recover and inflation becomes more of a concern. Whether the minimum wage is raised to $10.10 or not, policy makers need to consider tying minimum wage to inflation so that future minimum wage workers are at least as well off in real terms as current minimum wage workers.


[2]Current federal law does not automatically adjust the minimum wage to account for inflation. http://www.dol.gov/whd/minwage/q-a.htm.  Although the President failed to call for a mechanism which would tie the minimum wage to inflation, he has at other times called for this change. See http://www.whitehouse.gov/sites/default/files/uploads/sotu_minimum_wage.pdf.

[3] Definition of nominal: “An unadjusted rate, value or change in value. This type of measure often reflects the current situation, such as the current price of a car, and doesn’t make adjustments to reflect factors such as seasonality or inflation, which provide a more accurate measure in real terms.” http://www.investopedia.com/terms/n/nominal.asp

[5] Id.

[6] In nominal terms.

[7] The analysis that follows is based on data comparing the minimum wage in real and nominal terms in each year that it has been adjusted. Though, the frequency with which the minimum wage has been changed provides a relatively complete picture, there may be some discrepancies when compared to analyses that account for the effect of inflation in every year over the course of the minimum wage’s life.

Trayvon Martin and Southern Justice

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

It is August 1955 in Money, Mississippi. A pre-teen boy from Chicago, Illinois is spending part of his summer vacation visiting some relatives in the Delta, and the boys are currently hanging out in a small, local grocery store. An attractive woman walks in, and the boys’ attention is instantly drawn to her.  The Yankee, a visitor to the South, doesn’t know the old customs of the state. He whistles at the beautiful woman. The grocery store briefly falls silent before the boys are thrown out in an uproar. The visitor has made a grievous mistake: the woman at whom he had whistled is the grocery store owner’s wife. She is also white.

Several days later, the visitor goes missing. Rumors start to circulate; word starts flying around that the grocery store owner, Roy Bryant, and two other men have kidnapped the visitor. The sheriff quickly makes an arrest and charges the three men with kidnapping. Three days after the visitor is abducted, two boys fishing in the Tallahatchie River find his body. His body is beaten, bloody, and bruised. His captors had tied his body to a heavy fan blade with barbed wire tied around the neck. His eye is dislodged, and he has a gunshot wound slightly above his ear. The young male visitor, Emmett Till, had been killed for one reason and one reason only: He was Black.[1]

Flash forward to February 2012 in Sanford, Florida. A high school senior is walking home from a nearby grocery store after buying Skittles and some iced tea. He’s crossing through a neighborhood being watched by the Neighborhood Watch Captain, George Zimmerman. Zimmerman notices the young man walking through the neighborhood, and calls and reports the young man’s presence as “suspicious.” The police urge Zimmerman not to pursue the young man, but Zimmerman does not heed their order. What exactly happened next is still unknown, but the end result is clear: 17-year-old Trayvon Martin is dead, shot by George Zimmerman.[2]

Since Trayvon’s death, facts have emerged and allegations have been made that have led some to call Trayvon a “modern-day Emmitt Till.”[3] The 911 call from Zimmerman to Sanford police reveals that Zimmerman told police a Black male, wearing a hoodie, was walking through the neighborhood, which Zimmerman felt was suspicious. Zimmerman told 911 dispatchers that he was following the young man, which they instructed him not to do.  Zimmerman’s own statement to 911 dispatchers contradicts what he told police after they arrived on the scene of the crime – that Trayvon had attacked him, and he had shot Trayvon out of self-defense.[4] When police arrived, Trayvon was unarmed and carrying only his cell phone, a bag of Skittles, and an iced tea. Police did not arrest Zimmerman, nor did they perform any tests to determine whether Zimmerman was intoxicated. Sanford Police Chief Bill Lee stepped down from his duties after the city council passed a no-confidence vote in Lee. The 911 call reveals Trayvon was screaming for help before he was killed.[5]

 Amid calls for justice from not just Trayvon’s parents, but to the President to everyday citizens, the tragedy continues. Trayvon’s girlfriend was on the phone with him when the scuffle began, and she heard someone accost Trayvon shortly before the line went dead. Facts continue to emerge that indicate Zimmerman’s actions against Trayvon were racially motivated. Most recently, reports have emerged that Zimmerman used a racial slur while following Trayvon, which was recorded on the 911 call.[6] On March 23rd, students in Florida high schools participated in a walk out in protest of the lack of arrest in Trayvon’s killing.[7] That same day, President Obama stated at a press conference, “[W]e will get to the bottom of exactly what happened.[8] Trayvon’s parents have attended rallies in honor of their son’s life and have publicly called for justice.[9] Although Zimmerman remains free, his actions will be reviewed by a grand jury, and the FBI and Justice Department have opened their own investigations into the case.[10] Unfortunately, justice may not be served so easily.

 The issue: Florida is among twenty-one states that have a “Stand Your Ground” law that allows people to use deadly force when engaged in a fight.[11] The law reads as follows:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Thus, in order to have a successful claim, Zimmerman would only need to prove that he had a right to be where he was at the time and that he believed it was necessary for his to shoot Trayvon in order to protect himself from harm or death. The only real question left is whether Zimmerman had cause to believe Trayvon was going to harm him. Seeing as Trayvon was found holding only a bag of Skittles and an iced tea, Zimmerman will have a difficult time showing he was reasonably fearful of “great bodily harm” or death. When the grand jury reviews the evidence – Zimmerman’s statements, the 911 call, Trayvon’s girlfriend’s testimony about their phone call, and the situation as a whole – they will be able to start the steps of bringing Zimmerman to justice.

Even though the process of determining what really happened that night has finally begun, scrutiny of the police department’s handling of the case is opening them up to harsh criticism. Under the law, police are allowed to determine at the scene of the homicide whether they believe the self-defense claim, which is precisely what the police did in the Martin case. However, can they really be faulted for following the law? An at-the-scene determination of Zimmerman’s truthfulness could easily be believed: he had a bloody nose, scratches on his skin, and grass stains on his shirt, all signs of an apparent scuffle.[12] The police were not obligated to take Zimmerman in for further questioning, nor were they obligated to perform any sort of test to determine whether Zimmerman was intoxicated. Yet some have claimed the police did not do enough; they claim if the situation were reversed and Trayvon had been the one claiming self-defense, there would have been an arrest immediately. Whether that is true we do not know for it is only speculative, unfortunately, statistics suggest that statement may have some truth to it.

 Statistics indicate that prosecutors are three times more likely to seek the death penalty when the perpetrator is Black and the victim is White.  Studies have also shown that prosecutors are less likely to seek the death penalty when the victim is Black, regardless of the perpetrator’s race.[13] Aside from the eventual sentence, Black defendants are incarcerated 5.6 times more than White defendants.[14] Even more shocking, White defendants receive sentences ten percent shorter than those received by Black defendants, even when charged with the same offense.[15] Thirty-two percent of Black men will be incarcerated at some point in their lives, while only six percent of White men will suffer the same fate. For drug offenses specifically, African-Americans are thirty-seven percent of those arrested, although they are only thirteen percent of the United States population as a whole.

Though it clearly shouldn’t, race quite obviously plays a factor in criminal charges and criminal sentencing. It mattered in 1955 with Emmett Till: though Till’s captors were caught and charged, an all-white jury acquitted the defendants in a little over an hour. One juror commented, “If we hadn’t stopped to drink pop, it wouldn’t have taken that long.[16] Some jurors admitted they believed the defendants were guilty, but they did not think the death penalty was appropriate for White men who had killed a Black man.

We as a society have progressed since 1955. We cannot allow people like George Zimmerman to stem that progress. We cannot allow Trayvon’s memory to fade. We cannot allow Trayvon to become a modern-day Emmett Till. We cannot allow justice to pass us by. We must continue to push for change at every chance we are given. We must continue to change the way we see each other and the way we view justice.  We must continue to seek justice for Trayvon — for justice is the reason we study law.


[16]http://en.wikipedia.org/wiki/Emmitt_till#cite_note-75

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

The Supreme Court Sacrifices the Individual in Citizens United

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Over the past few weeks, President Obama, hitting key political battlegrounds, has taken bus tours of North Carolina and Virginia and unveiled his Housing Refinance Program and his Student Loan Initiative in economically strapped Las Vegas and Colorado, respectively. Desperate to improve his public approval ratings, Obama has created programs designed to alleviate economic distress and has taken these programs directly to the people. This is how it should be—the candidate catering to the voiced needs of the people responsible for his election.

Imagine, instead, the President designing his policies to garner the support of the likes of Exxon Mobil, General Electric, General Motors, or Bank of America. What if the Fortune 500 companies held the election in the balance and campaign stumping simply involved shaking hands with top corporate executives? Suppose town meetings and debates were replaced by question and answer sessions before stockholder meetings.

As a result of the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, the imagined scenario might offer a more viable means of securing election success. In Citizens United, the Supreme Court maintained that corporations are persons entitled to First Amendment rights. Hence, the government may no longer limit the campaign contributions of corporations because to do so, the Court claimed, would be to deprive the companies of their First Amendment right of free speech. The decision overturned two cases, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission, which had authorized limitations on corporate spending.  Although the Citizens United decision did not overturn laws that restrict direct contributions to candidates, the justices at least recognized that the consequences of Citizens United could be tantamount to removing all restrictions.

In the name of free speech and unrestricted political discussion, the Court has raised a specter of corporate domination at the expense of individual freedom. By treating corporations as persons under the Constitution, and by protecting their personal rights, the Court necessarily dilutes the First Amendment rights of the individual. Responding to the Citizens United decision, President Obama labeled it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”  Justice Stevens, who wrote a stinging ninety page dissent, aptly points out that the court erred in equating money with speech, and, in doing so, it furthers the risk of corruption.

The problem with Citizens United‘s ruling is that it goes to the very heart of our republican system of government–how to give a voice to each citizen. In other words, how does one keep the rights of the individual from being consumed by the demands of special interest groups? The framers of the Constitution addressed and grappled with this very issue. James Madison called these special interest groups factions, which he defined in the Federalist Paper No. 10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Whereas he recognized these factions could never be eliminated, controlling the power of these factions was deemed of utmost importance, if the republic was to survive. Consequently, the Founding Fathers drafted the Constitution, separated powers and provided checks and balances, all in an effort to keep one segment of the population from becoming too powerful.

In the Federalist Paper No. 10, Madison argues the most common cause of factions is the unequal distribution of property or wealth. The tendency of the wealthy, caused by human nature, and hence impossible to eliminate, is to succeed by suppressing the rights of the weak. Consequently, the supreme task of the republic is to protect the rights of the weak. Otherwise, individual rights and freedoms become meaningless. If one applies Madison’s analysis of factions to modern corporations, the corporate structure provides the means by which a group of people can become “united and actuated” by their “passion.” This passion, to make money at all cost, is often “adverse to the rights of other citizens.” This passion, to cite only a few examples, has created a large populace addicted to nicotine, fast food, and gas-guzzling cars. It often exploits workers, by depressing wages, and consumers, by inflating prices. Left unregulated, this passion has little regard for the environment whenever conservation measures strain corporate profits.

Resonating the words of the Federalist Papers, Justice Stevens writes his dissent in the spirit in which the Constitution was drafted. He writes, “the Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare.” Referring back to the philosophy of Madison and other Framers of the Constitution, Stevens argues, “it was the free speech of individual Americans that they had in mind.” The chief problem with the Citizens United decision is that, by equating the First Amendment rights of corporations with those of individuals, it will, in the words of Justice Stevens, “cripple [efforts] to adopt even limited measures to protect against corporate domination of the electoral process.”  The Court has sacrificed its constitutionally granted power to keep the corporate faction in check for the good of the people.

Reality suggests that corporate millions are not spent to promote innovations that would benefit the general welfare of the public, but rather they are spent to promote and sustain managerial interests and to subvert legislation that operates against that interest. Hence the corporate voice is not even the voice of the individual shareholders. No language in the Constitution mandates the extension of First Amendment freedoms to corporations. To the contrary, the intent of the drafters is clearly otherwise—protect the rights of the individual from the encroachment of factions. As a natural extension of the Court’s logic, Justice Stevens points out that soon the Court will be granting corporations the right to vote in order to exercise their newfound freedom of speech. If the Court continues to equate the civil rights of individuals with those of corporations, why not?

Cites Used

http://www.prospect.org/article/real-problem-citizens-united

http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/

http://www.huffingtonpost.com/2010/01/23/obama-weekly-address-vide_n_434082.html

http://www.nytimes.com/2010/01/22/us/politics/22scotus.html

http://history.hanover.edu/courses/excerpts/111fed.html

http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Alabama’s Immigration Law Does No Good

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Alabama House Bill 56 is the latest and most aggressive state immigration law to date. According to Micky Hammon, the bill’s chief sponsor, it was designed to “attack every area of an illegal alien’s life.”  Surpassing the controversial Arizona and Georgia legislation, the bill calls for strict enforcement of its measures, which range from creating a civil cause of action against employers who fire citizens while retaining illegal aliens; requiring public schools to determine the immigration status of all incoming students and their parents;  to requiring police officers to make a reasonable attempt to determine the residency and immigration status of a person stopped, if there is a reasonable suspicion that the person is an illegal immigrant.

The new law, passed in by the Alabama legislature and signed by Governor Robert Bentley, has already been challenged as a preemption of federal power, with mixed results.  But perhaps more interesting is the specter of racism cast by this law. There are illegal immigrants of every color in this country.  However, it is the Hispanic community, both U.S. citizens and illegal immigrants, which has become the focus of this debate.  As such it is only appropriate to consider the effects of the bill on both groups.

Latinos make up approximately 3.9% of the Alabama’s population, or about 185,602 people.[1]  It is estimated that illegal immigrants make up around 64% of the Hispanic population, or around 120,000 people.[2] Moreover, the two groups are often interwoven—i.e. children, who are citizens, may have parents who are here illegally.  The implications of H.B. 56 for Hispanic citizens of Alabama are terrifying.  Already nightly newscasts are broadcasting stories on “How to Stay Safe,” which include tips like always carrying “papers.” After the passage of H.B. 56, Hispanic Americans are forever foreigners in the eyes of the fellow citizens—they must be constantly ready to prove that they belong here as citizens and lawful residents.  However, “showing papers” may be the least of these worries if the Alabama legislature is successful in getting the law enforced in its entirety.

U.S. District Court Judge Sharon Blackburn blocked some portions of the law which made it a criminal offense to conceal, harbor, transport, or shield an illegal immigrant.  If the Alabama legislature is successful in its appeal, many Hispanic families would be confronted with the dilemma of being forced from their home in order to keep their family together, or face criminal charges if they continue to have contact with family members who are illegally in the state. Furthermore, approved portions of the law place children, who are legally in the U.S., whose parents are illegal immigrants, in an untenable position. Also, H.B. 56 section 30 makes it a felony for an illegal immigrant to enter into a business contract with the State of Alabama.  The implications may not be apparent at first glance, but in many parts of the Alabama, utilities, such as water, sewage, and electricity, are only available through the State. Clearly, as claimed in the Federal appeal, Alabama’s new law is “highly likely to expose persons lawfully in the United States, including school children, to new difficulties in routine dealings.”[3]

For those Latinos not lawfully in the U.S., the message is clear—Get Out. The only remaining question is where? Although some families are leaving the country voluntarily, many are simply crossing state lines. Either way, they are moving carefully, since the law became effective on September 29th , many illegal immigrants fear detention, or criminal charges, if they are seen by law enforcement. As Vianey Garcia, an illegal immigrant said, “We have to move. We have to leave everything.  We can’t take anything because I’m afraid they can stop us and say why are you moving?”

The repercussions of H.B. 56 are already apparent.  The Thursday the law went into effect (September 29th) scores of Latino students were absent from schools, and many have never returned.  Although it is too early for reliable statistics, anecdotal evidence from the community suggests many Latino families are fleeing in fear. Proponents of the law have lauded the early signs of success; they are driving immigrant families from the state. However, it is the climate of fear created by H.B. 56 that most worries its opponents.

Fear, it is the one word that cuts through every article, news report, and interview on H.B. 56. After all, the law is an “attack” on illegal immigrants; and by proxy, their family members who are legally in the U.S., and let’s be honest, Latinos in general. The law tried to create criminal and civil sanctions not just against illegal immigrants themselves, but also against anyone who would employ, transport, aid, or even encourage them—they have been cast as lepers by Alabama lawmakers. As the stereotypical face of illegal immigration, Hispanics face suspicion and disdain lest others be exposed to the taint of illegal immigration.

It has been said H.B. 56 and its Arizona and Georgia counterparts are a cry for help—an extreme reaction to the federal government’s inaction to state immigration concerns. And like most extreme measures, it has produced a result, but at what cost? The federal government has cited concerns that extreme state immigration policies interfere with the federal strategy and enforcement—hardly a convincing argument when it was the inaction of the federal government that prompted the passage of H.B. 56 in the first place. Civil rights groups, like the Southern Poverty Law Center, claim the law will lead to racial profiling, chill children’s access to education, and result in violations of the Due Process and Equal Protection clauses. Church leaders have also protested the law, claiming it violates, and in some cases would criminalize actions prompted by Christian values. The agricultural sector says it is unable to find a replacement workforce, that crops are rotting unpicked in the fields. For a state so recently ravaged by tornadoes, contractors are concerned that a dearth of workers will cause long delays in rebuilding the state.

Furthermore, proponents of the immigration law claim it is designed to protect the residents of Alabama from bearing the costs of illegal immigrants; but there is no clear evidence that illegal immigration creates a financial burden.[4] Moreover, evidence exists that illegal immigrants may be an economic boon. It is estimated that in 2010 illegal immigrants in Alabama paid $130.3 million in state and local taxes.[5] Furthermore, “if all unauthorized immigrants were removed from Alabama, the state would lose $2.6 billion in economic activity, $1.1 billion in gross state product, and approximately 17,819 jobs.”[6]

I am not contesting the importance of resolving illegal immigration. It is an important issue that begs resolution, but H.B. 56 is not the solution; moreover, it creates more problems.Furthermore, I recognize that illegal immigrants are not United States citizens, and therefore not entitled to all of the rights and privileges guaranteed by the Constitution. However, this “attack” is not well executed, and both legal and illegal residents of Alabama have been harmed by its carelessness. H.B. 56 is so poorly crafted, and that is evident in that it has created enormous hardships without serving any of its stated interests. The problem of illegal immigration deserves more consideration than reactionary legislation.  History is filled with examples of minorities whose rights and liberties have been trampled because they are the scapegoat for a larger problem. The state of Alabama has a chance to choose a different road; to draw on its history and turn from the, perhaps popular, path of segregation and instead draft legislation that actually addresses the needs of its citizens.

Sources:

http://news.yahoo.com/obama-administration-appeals-alabama-immigration-law-220502628.html

http://blog.al.com/birmingham-news-commentary/2011/10/viewpoints_undocumented_doesnt.html

http://www.csmonitor.com/USA/2011/0929/Alabama-life-already-changing-under-tough-immigration-law

http://www.splcenter.org/get-informed/news/splc-civil-rights-groups-file-emergency-request-to-block-key-provisions-of-alabama

http://abcnews.go.com/blogs/headlines/2011/10/latino-students-withdraw-from-alabama-schools-after-immigration-law-goes-into-effect/

http://www.scribd.com/doc/66701706/Summary-Opinion-on-Alabama-Immigration-Law

http://blog.al.com/breaking/2011/09/federal_judge_throws_out_xxxx.html

http://www.immigrationpolicy.org/just-facts/new-americans-yellowhammer-state

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Obama Administration Justified in Targeted-Killing

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Anwar al-Awlaki (Awlaki) is dead. Before September 29, 2011, this leader was relatively unknown to most citizens of the United States. However, Awlaki’s story has quickly developed and been publicized due to America’s demand for instantaneity and aggressiveness from its news sources. Why Awlaki was killed, who killed him, and the nature of his killing was exposed in two days. The covert operations penetrating his life, the intelligence leading to his demise and the subsequent blow to his constituency has been plastered across various print and electronic media. Everything from his religious beliefs, the way he lived his life, schools he attended, and the scope of his marriages are in steady conversation rotation across the country. As these facts continue to come to light, it is Awlaki’s citizenship which will most likely have the most significant impact in the foreseeable future.

Awlaki was an admitted member of al-Qaeda. He had every right to join al-Qaeda and promote the beliefs of his organization. Awlaki had free will to support al-Qaeda and encourage their direction. He routinely expressed his hatred for America and Western Civilization. Awlaki used his radical influence to cause harm and continue a jihadist “holy war” against America.  U.S. military officials have called him a master propagandist and said he had immense ability to harm our country.  Subsequently, his dedication led him to become a supremely powerful figure within their ranks. However, it was Awlaki’s actions, not beliefs, which led to his being targeted. Al-Qaeda’s destructive actions and operational tactics have been widely held as terroristic in America. Their attacks on American soil and around the world have led the U.S. government to classify them as a legitimate threat to our national security. Awlaki’s speeches indicate he knew of al-Qaeda’s extremist reputation and he used his position to perpetuate these actions himself. He publicly praised numerous attacks on the nation and was charged with plotting attacks. President Obama even described Awlaki as the “leader of external operations for Al-Qaeda.”  Awlaki was perceived as such a threat that he was approved for targeted killing by the Central Intelligence Agency (CIA). Naturally, he met the same fate as most do when they are placed on this list.

The death of Awlaki came early Friday morning while he was hopping into a pickup truck.  He was caught in the crosshairs of an armed CIA drone and there was nothing he could do.  His death was carried out in Yemen and has been widely praised by their government. It is broadly speculated that the Yemeni Government helped carry out this military operation. Nonetheless, the U.S. Government has not given the exactness of their intelligence. Yemeni officials have commented that Awlaki was a threat to all and that his death was the direct consequence of his actions.  This rationale aligns with the comments being made by United States officials.  However, there is an increasingly growing underlying conversation being had in America about this military action.  Anwar al-Awlaki was born in New Mexico, making him an American citizen.

The conversation being had is the legality of the U.S. government killing an American citizen without judicial process.  The critics of Awlaki’s killing point to the Fifth Amendment to the Constitution that states no one shall be “deprived of life, liberty, or property, without due process of law.” These critics argue that there was not a single legal process that led to Awlaki becoming the first U.S. citizen placed on the CIA’s targeted killing list. They argue that this is America and in America actions such as these have to be fulfilled through a legal process. Further, critics point to the potential precedent this targeted listing and killing imposes. It is believed this opens the door to expanded executive authority to the killing of Americans. The American Civil Liberties Union’s (ACLU) Deputy Legal Director Jameel Jaffer said, “It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.” Decriers say Awlaki’s murder goes against the framework of our country and has severely eroded the power of the judiciary.  The ACLU filed a lawsuit last year challenging the constitutionality of adding an American citizen to the targeted killings list. The lawsuit was dismissed and the federal judge noted that Awlaki had shown no interest in pursuing a claim in a U.S. justice system “he despised.” However, these conflicting views on the legality of the targeted killing of Americans has not been limited to the parties involved in litigating the preceding laws.

Presidential candidate Ron Paul has even expressed skepticism. He stated U.S. leaders must analyze “assassinating American citizens without charges” even if they do have strong terrorist ties and affiliations. Individuals with similar views of Ron Paul and the ACLU argue that there is no nexus between Awlaki’s actions and superseding the constitution. It is clear that he was implicated in various terrorist acts around the world, but Awlaki never was convicted in an American courtroom. It is this point that is fueling the debate. The critics of the killing argue that the Fifth Amendment requires a trial and conviction in court in order to kill any American citizen.

A quick resolution to this debate seems bleak since no real precedent exists.  Members of the legal community have tried to compare it to the detention of Americans who sided with our enemies in World War II. The precedent established by the actions taken in that point in history is unlikely to gain popularity because a lot of people do not accept America’s conflict with al-Qaeda as a real war. Robert Chesney, a law professor at the University of Texas who specializes in national security law, said that he does not believe “there has ever been a case quite like this.” With that said, most people opposed to Awlaki’s killing are not contentious about the circumstances surrounding his death. These people understand that he was a radical man and did not view America in the best light. However, they are worried about the slippery slope his placement on the targeted list has created.

Nevertheless, the Obama administration has heard the critics and has taken a position to rebut them. The Obama administration claims they were justified in placing Awlaki on the CIA’s targeted killing list because of his shifted focus and subsequent actions. They claim he went from a role of propagandist to operationally active during wartime. They point to Awlaki’s influence within the al-Qaeda sector in the Arabian Peninsula and his role in al-Qaeda in developing terrorist plots against America. The administration focused on three elements to support their argument when they rebutted ACLU’s lawsuit. First, they established that Awlaki was an imminent threat to American citizens. They produced evidence of his participation in plots to blow up specific American based airliners and cargo planes. Next, the administration relied upon the fact Awlaki was fighting with the enemy in armed conflicts against American forces. This was said to further his direct threat against America. Finally, and most importantly, the administration pinpointed the fact that they could not find a feasible way to arrest him. Awlaki’s dual citizenship, allegiance of followers, fleeing ability and pure determination to avoid capture made him “a hard target.” A hard target that was inevitably hit.

“If you’re a terrorist, you’re a terrorist,” exclaimed Secretary of Defense Leon Panetta when commenting on Awlaki’s killing. Anwar al-Awlaki was a terrorist.  He was a threat to anyone in this country and anyone whose religious and cultural views did not align with his. His preaching of violence and hate was heard around the world and became more threatening every day. He was just one man, but his influence inspired countless. My views support the officials around the globe acknowledging a safer world without him in it. A stereotype of the al-Qaeda network does not lead me to believe this way. My reasoning comes solely from the words out of his mouth. Awlaki’s destructive words and slant towards violence against America is unacceptable. And I fully agree with the Obama administration legal justification.

It is the federal government’s duty to protect the sovereignty of our nation and provide safety from threats.  Awlaki’s influence and his own hands were an immediate threat to American citizens. He preached for our deaths and took up arms against our troops. His actions were a direct threat against every citizen in the United States and considered treason in the U.S. Constitution (Article 3, §3). The Constitution further signifies that treacherous behavior is punishable by death.  Although Awlaki was not convicted of treason, his words and admittance to crimes made his traitorous stance clear. Furthermore, he was a wanted man and could have turned himself in to clear his name. Awlaki made the choice to elude law enforcement and forgo the judicial process.  America gives any citizen charged with a crime an opportunity to turn themselves in. Clearly, rectifying actions have to be taken when a charged party neglects this right, especially when federal organizations classify this party as a threat. It is true, Awlaki was not given a trial and this seems to cut against the Fifth Amendment. However, the Constitution has to be read and interpreted in the aggregate when the situation warrants. We know of at least three constitutional arguments that arise from Awlaki’s killing. His killing was executed without the exercise of the judicial process. Awlaki was thought to have committed treason. And it is the federal government’s duty to protect its citizens from foreign and domestic threats.

The Obama administration fulfilled their duty by adding Awlaki to the targeted killing list and executed their agenda. Taking away a President’s authority to order someone placed on the targeted killing list would not make America safer. I believe it would impede the national government’s duty to keep its citizens safe. Extreme measures are needed when time is of the essence and threats are imminent. The country elects our leaders to make the hard choices and sometimes they have to be made for our protection. It is a fallacy to demand constitutional protection from threats as an American citizen but chip away at the weapons used to protect us. I am sure the administration would have loved to minimize the Awlaki threat in a more judicially sound way, but CIA drones do not carry handcuffs.

Sources:

http://www.usatoday.com/news/washington/story/2011-09-30/awlaki-legal/50620240/1

http://www.bendbulletin.com/article/20111001/NEWS0107/110010372/

http://www.washingtonpost.com/world/national-security/yemeni-al-qaeda-took-a-blow-but-remains-a-threat-to-us/2011/10/01/gIQAw9OmDL_story.html

http://en.wikipedia.org/wiki/Anwar_al-Awlaki

http://globalpublicsquare.blogs.cnn.com/2011/10/01/killing-awlaki-was-illegal-immoral-and-dangerous/

http://www.denverpost.com/nationworld/ci_19022223

http://nationalinterest.org/blog/paul-pillar/the-killings-yemen-the-rule-law-5963

http://en.wikipedia.org/wiki/Treason

http://cnnpressroom.blogs.cnn.com/2011/09/30/panetta-if-youre-a-terrorist-youre-a-terrorist/

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