Heather Cox Richardson
There has been a great deal of debate over whether or not it was legal for the Obama administration to order the September 30 killing of Anwar al-Awlaki. It seems unlikely to go far in the realm of political discussion, since al-Awlaki was not on American soil, and since few Americans seem to have digested the fact that, although he had a foreign name and was clearly implicated in major terrorist attacks on the United States, al-Awlaki was born in America and was thus an American citizen.
A similar question did, though, roil American politics in the 1880s: should the government be able to order the assassination of an American citizen? Then, unlike now, it was discussed on both sides of the political divide as a principled question of executive power and the rights of citizens.
The targeted citizen, in that case, was Jesse James.
James had fought for the Confederacy as one of Quantrill’s Raiders in Missouri. These men were so hated by the pro-Union Missourians that, when the end of the war permitted most Confederate soldiers to go home in peace, Unionists refused to acknowledge the Raiders as Confederate soldiers. Someone put a bullet in Jesse as he made his way home from the fighting.
For their part, James and his buddies were not cheerfully reconstructed ex-Confederates. They survived by robbing trains, banks, and express companies, all of which were associated after the Civil War with the Republican federal government. But James insisted that he was not a criminal; he had been forced outside the law by the government itself. After the war, ex-Confederate Democrats in Missouri could not vote, sit on juries, work as lawyers, or hold government offices. James maintained that the true perpetrators of the crimes for which he was blamed were Republicans. In his view, state laws barring Democrats from access to legal protection, juries, and offices guaranteed that he could never get a fair hearing. According to a sympathetic biographer (he referred to Jesse as “an angel of light”), their manhood forced men like James to “turn upon that law that hounded them and that society that hunted them, and outrage and defy it.”
Missouri officials had no luck bringing James to justice. Neither did Pinkerton detectives, hired by angry express company owners. (The James Gang robbed stagecoaches, banks, and trains and committing a host of murders along the way.) Finally, in desperation, the Missouri governor, T. T. Crittenden, persuaded a member of James’s own gang to murder him. Bob Ford shot James as he straightened a picture on the wall. When Ford and his brother pled guilty to the murder and were sentenced to death, the governor promptly pardoned them and paid them the bounty he had placed on James’s head.
Predictably, Democrats were outraged by the prospect of an elected Republican official arranging for the murder of a Democrat. But many Republicans were also unsettled. Crittenden had “hired an assassin” as if he were a potentate, one Republican newspaper editor wrote. Popular opinion swung quickly to an acknowledgement that James was a criminal, and even rejoiced that he was out of commission, but rejected entirely the idea that government officials should have the power to ignore legal processes and simply murder their domestic enemies. James’s portrayal as a man persecuted by the government made him a popular hero.
While any parallels should not be pushed too far, James’s situation was not unlike that of al-Awlaki. Both appear to have been criminals who protested a government that would not acknowledge their grievances. At the same time, al-Awlaki’s case raises questions the James case did not, questions, for example, about the nature of war powers during times of undeclared war, and how international terrorism should affect Constitutional rights. These are not unimportant issues. It’s too bad that they will most likely not get the bipartisan public airing they need in the wake of al-Awlaki’s death, the same public debate that followed Jesse James’s assassination.