by Eric Martin
Glenn Greenwald makes a very good point about recent revelations that the President is claiming the authority to assassinate U.S. citizens that the President labels "terrorists."
But even if you’re someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it’s worth remembering that if you advocate that power, it’s going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn’t there at least be some judicial approval required? Do we really want the President to be able to make this decision unilaterally and without outside checks? Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval? Shouldn’t we be at least as concerned about the President’s being able to assassinate Americans without judicial oversight? That seems much more Draconian to me.
It would be perverse in the extreme, but wouldn't it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it? That would basically mean that courts would issue "assassination warrants" or "murder warrants" — a repugnant idea given that they're tantamount to imposing the death sentence without a trial — but isn't that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself? And if the Fifth Amendment's explicit guarantee — that one shall not be deprived of life without due process — does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit?
Well, since you put it that way, maybe Presidential assassination of U.S. citizens by fiat isn't such a good idea.
Via Spencer
As I noted in the other thread, I’m sure Presidential assassination of U.S. citizens by fiat is just fine because Dennis Blair said that the US is “very careful[]” before they do that.
In fact they’re “not careless about endangering American lives” and also get “specific permission,” presumably from the President but the article didn’t say that. Part of the criteria is whether “that American is a threat to other Americans.” Which, of course, is a very specific criteria.
I’m sure this won’t get out of hand to the point where the “terrorist” and “outside the United States” restrictions are dropped and we’re dropping JDAMs from predators on drug dealers, gang leaders, and mafioso in, say, LA and NYC, because no one would view them as “a threat to other Americans.”
Seems to me there’s a art. III sec. 3 problem as well as an amd. V problem. No way this survives court scrutiny, if you can get to the merits.
Fear is the new courage.
Thinking back on the underpants bomber, I guess there really is no problem, in theory, in interrogating the guy without Mirandizing him, if none of his statements or other information gained from such statements are used to convict him. The problem is, that’s a big if. How can the accused be sure that that’s the case? Suppose he tells them he trained at al Qaeda Camp X in Yemen, and later the US produces a videotape showing him undergoing training at Camp X that was obtained when US and Yemeni personnel raided the camp, but the US claims it obtained the tape without using any of the information obtained from him (through methods that must remain secret, of course).
Add in the fact that at least one Bush Administration official (David Addington, I believe) specifically advocated obtaining evidence against suspected terrorists in violation of their constitutional rights and using it anyway, without telling the suspect or the court about it. I’d be willing to be that was in fact done during the Bush Administration and it wouldn’t surprise me if it has been (or will be) done during Obama’s. Too many national security jihadists in the executive branch for it to be flushed out of the system completely.
But this idea of a “Americans Targeted for Assassination” list is just fncking nuts. I mean, jeebus, people got upset when Nixon had an enemies list.
CharleyCarp: If a case like this makes it to the Supreme Court, I expect them to dismiss it due to a lack of legal standing.
Since people with standing have — by definition — already been assassinated, it’ll be very difficult for them to bring a case.
The DOJ lawyer who files that motion would be a perfect replacement for Justice Scalia when he retires/the devil collects on his debts.
Seems to me there’s a art. III sec. 3 problem as well as an amd. V problem. No way this survives court scrutiny, if you can get to the merits.
I get that “the president can assassinate any citizen any time for any reason” theory is constitutionally bogus, but is there any chance that a court will ever rule that way? Given how much the courts defer to the executive in matters of internal security, I’m having trouble seeing a court strike it down. For that matter, who would even have standing to contest this? Is that limited to the family of someone assassinated by the government after the fact?
I dunno Turbo, even this f-ed up Sup Ct beat back some of the Bush admin’s claims re: denying habeas to terrorist suspects. I think this would stand a chance.
Since people with standing have — by definition — already been assassinated, it’ll be very difficult for them to bring a case.
Would you still argue that a person doesn’t have standing if they are on an a list of pre-approved assassination targets? If not, Anwar al-Awlaki is on it, and still alive.
Ive got a couple of arguments for the limitations against citizens and noncitizens being the same:
-foreign nationals are entitled to due process etc, so any Constitutional questions become similar to those treating citizens
-as with the issues with consular relations, any position we take on foreign rights can be mirrored by other countries. And I really want to have access to my consulate if Im arrested in a foreign country- even more than that, I don’t want them shooting me in the head
Elm, the standing challenge would come at the district court. Hence my “if” clause.
Those are some very good points CW. Wow. I’ve gotta think this through. Kudos.
Someone shot but not killed would have a claim (if anyone).
And note this gem at the hearing in the WaTimes article Greenwald cites:
Mr. Blair responded that he would rather not discuss the details of this criteria in open session.
Not only is there a “Americans Targeted for Assassination” list, but the criteria for getting put on it is secret. Geez, if getting off the no-fly list is hard, think about how you go about getting off this one.
And this:
One American, Seattle-born jihadist Ruben Shumpert, was killed by a U.S. missile strike in Somalia. Shumpert was a known Islamist wanted by federal authorities on gun charges.
I didn’t even know that. Where is the NRA when you need them? You can be blown-up if you’re an “Islamist” wanted on gun-charges?
Given how much the courts defer to the executive in matters of internal security, I’m having trouble seeing a court strike it down. For that matter, who would even have standing to contest this? Is that limited to the family of someone assassinated by the government after the fact?
Presumably before the fact the intended victim isn’t notified, so how can he protest? And even if we wanted to have some kind of notification as part of the ‘assassination process’, that’s problematic bc the timing could easily expose sources.
So the only checks beforehand have to come from within the government itself.
Post-facto, Im thinking that the government will argue that the act took place in a ‘war zone’ or ‘conflict zone’, made so by the presence of AQ and their plotting of attacks against the US. Which pretty clearly ought to work in eg Afghanistan (if a US sniper kills a target who turns out to be a citizen in the course of military ops)- but from there, it’s a grey area. Is Yemen a military operational area? Saudi Arabia? Italy? St.Louis?
I think that the fundamental problem is that we want eg the GOP Indiana Senatorial candidate to say that he’s going for his guns if the GOP doesn’t win in 2010 without being imprisoned without trial or assassinated. But we do want to disrupt AQ operations before they occur, using military force if necessary. And, to my mind, there isn’t an easy line to draw between a Saudi who says he wants to attack America and a Hoosier who says he wants to attack America.
Would you still argue that a person doesn’t have standing if they are on an a list of pre-approved assassination targets?
How do I prove that I’m on the list? How do I even find out if I’m on the list? Presumably, the contents of the list are classified…I don’t see a FOIA request being very effective.
How do I prove that I’m on the list? How do I even find out if I’m on the list?
Duck down? From Greenwald:
The current controversy has been triggered by the Obama administration’s attempt to kill U.S. citizen Anwar al-Awlaki in Yemen. But al-Awlaki has not been accused (let alone convicted) of trying to attack Americans. Instead, he’s accused of being a so-called “radical cleric” who supports Al Qaeda and now provides “encouragement” to others to engage in attacks — a charge al-Awlaki’s family vehemently denies (al-Awlaki himself is in hiding due to fear that his own Government will assassinate him).
n00b question here, but it’s not clear to me under what circumstances this assassination can be carried out. How is this materially different from, say, cops shooting a guy – an American citizen even! – dead who’s waving a gun around threatening people? Does this apply also to citizens who pose no imminent threat?
Eric, Charley, and Turbulence: You are all, of course, correct. A person on the list, a person wounded but not killed, and the estate of a victim should have standing to file a case.
Still, it’s not hard to imagine Justice Scalia denying standing to a person on the list, followed by a successful killing, followed by Scalia dismissing the case on the basis that the Plaintiff has died.
How is this materially different from, say, cops shooting a guy – an American citizen even! – dead who’s waving a gun around threatening people?
With the cop, it’s an imminent threat. A clear and present danger. Proportional and necessary self defense/defense of others. Whereas in the present example, it’s not clear what criteria are sufficient to get your dome piece a date with a hellfire missile.
Does this apply also to citizens who pose no imminent threat?
That’s the million dollar question. And the follow up is: who decides?
In your cop scenario, the cop could be prosecuted for murder if his decision was unreasonable. Can the POTUS? A general?
elm: it’s not hard to imagine Scalia doing any number of f-ed up things.
Mr. Blair responded that he would rather not discuss the details of this criteria in open session.
When I first read this sentence, I read “open session” as “open season.”
Greenwald (quoted by Eric): The current controversy has been triggered by the Obama administration’s attempt to kill U.S. citizen Anwar al-Awlaki in Yemen.
I should note that, at the time, according to this Dana Priest article al-Awlaki was not the “focus” of the strike, but nevertheless has since been put on the Death List (talk about your “Death Panels”).
Is something preventing Anwar al-Awlaki from surrendering to US officials to explain his involvement with Umar Farouk Abdulmutallab and Nidal Malik Hasan? Of availing himself of the US court system, with the assistance of an attorney, to be judged by a jury of his peers?
Generally when a US citizen has been involved with one mass murderer and one attempted mass murderer, said citizen should expect to have to speak to US law enforcement about it. I don’t think that is really about “fear”. It isn’t “fear” that makes me think that pursuing fugitives from justice accused of conspiracy to commit or attempt murder is a good idea; it’s that I think tolerating murder and conspiracy to murder is antithetical to peaceful civil society.
Further, Greenwald goes on to cite a Supreme Court case involving a Ku Klux Klan rally:
“The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views.”
However, in the first paragraph of that decision is this sentence:
“Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
al-Awlaki’s involvement with one actual murderer and one attempted murderer would certainly seem like they fit those criteria pretty well. Greenwald neglects to mention this, though. Of course, al-Awlaki may be innocent of any crime. The way to determine that is through due process of law. Understandably, he might be intimidated by that prospect, but I haven’t seen anything to indicate that it is not an option for him. The person deciding not to avail themselves of due process in this case is al-Awlaki himself; he is choosing to make himself a fugitive from justice. The rules for how the government may treat a fugitive from justice are quite different to those concerning how it may treat any other citizen, and provided that it continues to offer al-Awlaki the opportunity to surrender to US law enforcement, and given that he is quite reasonably suspected of conspiracy to commit mass murder, given that he appears likely to continue to do so, and given that he continues to choose to hide from justice in a foreign country, well, what exactly should the US do about it? Laugh it off?
From the Priest article I link to above:
The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, “it doesn’t really change anything from the standpoint of whether we can target them,” a senior administration official said. “They are then part of the enemy.”
Do we at least have to see their al Qaeda membership card first?
Both the CIA and the JSOC maintain lists of individuals, called “High Value Targets” and “High Value Individuals,” whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added.
Hey there’s more than one list! And they’re not even consistent!
CIA: How many Americans are on your list, JSOC?
JSOC: Three, why, how many are on yours?
CIA: Four! Haha, my list is bigger than yours!
JSOC: [grumbles] Oh yeah?!? [scribbles] Well my list now has FIVE people! So there.
encore une fois
Ah, thanks Eric. So there is literally one person on Earth who (1) has standing and (2) knows that they have standing. Presumably, one the government murders this one guy, no one else on the list will have standing and knowledge as long as the government doesn’t brag too specifically to the press about who is next on the hit list.
What I wonder is: what happens if I have the same name as someone on the list? In theory, I’m not in any danger, but in practice, I am. Right? Does that give me standing? What if my name is an alias?
Heck, let’s say I’m on the list and I walk into FBI headquarters in DC. I can’t be arrested because I haven’t been charged with anything, but I’ve got Congressional testimony proving that the US government is trying to kill me. What does the FBI do? Kill me right then and there? Take me into protective custody because the FBI cares about the constitution? Turn me over to the military? Doesn’t the FBI have some legal obligation to protect me?
Shocked and appalled. ‘Obscene’ & ‘disgusting’ come to mind, as well.
I cannot imagine under what legalistic jiggery-pokery this notion is being “justified”. “Oversight” would not improve this craziness one bit.
I think impeachment would be entirely appropriate for any president who tried to arrogate such power to him/her/self.
Indict him?
Jacob Davies: The rules for how the government may treat a fugitive from justice are quite different to those concerning how it may treat any other citizen
Assuming that’s true (and it seems right), I don’t think you can be a “fugitive from justice” unless you’ve been indicated and charged with a crime and a warrant issued for your arrest. AFAICT, none of that applies to al-Awlaki for purposes of US law. Indeed, the Priest article says:
Intelligence officials say the New Mexico-born imam also has been linked to the Army psychiatrist who is accused of killing 12 soldiers and a civilian at Fort Hood, Tex., although his communications with Maj. Nidal M. Hasan were largely academic in nature. Authorities say that Aulaqi is the most important native, English-speaking al-Qaeda figure and that he was in contact with the Nigerian accused of attempting to bomb a U.S. airliner on Christmas Day.
“Academic communications” and “contact” gets you put on a Death List? Admittedly that’s not a direct quote, but seems awful thin.
(the Priest article does say he is wanted on criminal charges in Yemen, but I’m not sure that’s a sufficient standard to allow the US government of assassinate US citizens)
When we were talking on the other thread, I was thinking that we might need an amendment to deal with this properly. Something like: Congress passes (via supermajority) a list of enemy organizations. The President submits evidence to a special court of individual association with this group, and upon obtaining a guilty verdict proceeds with the assassination. Within some fixed time period (say, 3 years) the US must reveal its involvement and disclose the proceedings (redacted of course).
Revealing the names on the list has upside and downside. Downside, it may reveal sources. Upside, you give people the opportunity to surrender and defend themselves against the charges. But, as above, the ‘charges’ in this case aren’t criminal per se. Unless we (reasonably) consider membership in AQ as de facto conspiracy to commit murder.
Of course, al-Awlaki may be innocent of any crime. The way to determine that is through due process of law.
Right. And the whole assassination without trial kind of interferes with due process.
Understandably, he might be intimidated by that prospect, but I haven’t seen anything to indicate that it is not an option for him.
If they kill him, it will certainly limit his options. There’s no guarantee that they don’t kill him even as he surfaces to turn himself in. After all, it’s not like the law would stop US officials.
Also, what Ugh said: has he been indicted? Is there a warrant? If not, is he a fugitive? By what standard?
Is something preventing Anwar al-Awlaki from surrendering to US officials to explain his involvement with Umar Farouk Abdulmutallab and Nidal Malik Hasan? Of availing himself of the US court system, with the assistance of an attorney, to be judged by a jury of his peers?
It’s not clear that even if this course of action appears reasonable to you, that his not carrying it out makes him subject to a death sentence. Certainly, we’d object to this standard used domestically.
The rules for how the government may treat a fugitive from justice are quite different to those concerning how it may treat any other citizen
But they don’t involve assassination. Or they didn’t. And, as pointed out, there are *huge* constitutional objections to this.
Also, Im much less convinced than you that he is likely provably guilty of a crime. The standard is pretty high for incitement, and we’d need audio or witnesses of his inciting statements, not just al-Awlaki’s involvement with one actual murderer and one attempted murderer would certainly seem like they fit those criteria pretty well. Knowing or interacting with criminals is not a crime.
chmood- how do you recommend that we handle AQ?
An indictment would certainly be a good step. You’d think a grand jury could produce that even given the relatively thin evidence against him (“ham sandwich”, etc).
I’m not exactly wholeheartedly endorsing this doctrine. I just wonder what the hell we’re supposed to do about people who are reasonably suspected of conspiracy to murder who then refuse to surrender to justice. I fully appreciate that al-Awlaki might have entirely reasonable fears about obtaining a fair trial in the US, but I don’t think there’s a legal doctrine that says that you can run away from the police just because you’re afraid you might not get a fair trial. Problems with the application of justice are handled through the justice system itself. It may not be perfect but it’s the best on offer.
I do also think there’s a certain, er, “exceptionalist” flavor to the argument that the United States is allowed to extrajudicially kill citizens of other countries outside its borders even without a declaration of war or a criminal indictment, but is not permitted to kill its own citizens. If anything, the case for the legality of killing its own citizens is probably stronger since they are actually subject to its jurisdiction. I appreciate that to Americans the idea that the US feels entitled to kill its own citizens is scarier than the idea that it feels entitled to kill citizens of other countries, but non-citizens might see it a little differently…
It’s stuff like this, which sort of flies under the general radar – civil liberties/DOJ things, Honduras – that reveal a very ugly side of Obama – things which go beyond even extreme political caution toward the realm of gratuitousness. I’m pretty sure I can’t vote for him in 2012. That’s not to say I will vote for the Republican – whoever that is is bound to be worse, probably much worse. But some things are across the line, and simply unforgivable – unrationalizable. Greenwald is absolutely right on this one. His ‘absolutism’ is warranted over the kind the O Administration is preferring.
In the extremely unlikely event that intelligence officials knew – positively and in advance – that a US citizen was about to cause mass murder, and Obama ordered their assassination, does anyone really believe that Obama would ever be either impeached or prosecuted for having done it? Of course the Moral Null Set (the current Republican party) would affect that if they could, but…really, could they? No. Obama would be a hero.
So, what would happen if O ordered the assasination of someone who later turned out to be either innocent or less guilty? Then…oh, I see now.
I can hear someone countering: ‘If you’re so concerned about the Rule of Law, why not make it legal for the president to do what you would want him to do in the given situation?’. I think the answer is obvious, but maybe there’s a nice legal term of art that one of you attorneys (or ethicists, wink wink) could help me out with here?
This is not a conflict about political style or priorities or even ideology. This kind of thing is triagulation of the most cynical, destructive kind. I will continue to support the president vis a vis many issues, but I don’t think I can ever vote for him again.
It’s not clear that even if this course of action appears reasonable to you, that his not carrying it out makes him subject to a death sentence. Certainly, we’d object to this standard used domestically.
But what is reasonable in the United States and what is reasonable in the Yemeni desert are quite different. If it was practical to capture him in Yemen that would be very preferable.
the whole assassination without trial kind of interferes with due process
So does fleeing from US justice to the deserts of a Middle Eastern country when wanted for questioning in relation to several murder cases in the US.
There’s no guarantee that they don’t kill him even as he surfaces to turn himself in. After all, it’s not like the law would stop US officials.
By this standard any fugitive is justified in continuing to avoid capture because of his fear that he will be killed during an attempt to surrender. Is there any actual evidence that if al-Awlaki called the US embassy in Yemen and offered to peacefully surrender at a given time and place, he would instead be killed? Any reason to think that the US would prefer killing him to talking to him? Anyone contemplating that sort of action would be very aware that it is obviously illegal to kill a US citizen voluntarily surrendering to US forces.
I just wonder what the hell we’re supposed to do about people who are reasonably suspected of conspiracy to murder who then refuse to surrender to justice.
Here’s the thing. To the extent extrajudicial killings are ever used, they should be reserved for extreme cases, under very tight ROE.
I’m not sure that there is a reasonable basis to assume conspiracy to commit mass murder in the present case. And even then, is “reasonable basis” the right standard? I would argue, no, when you’re talking about being the judge, jury and executioner. Further, there would need to be oversight either way.
So does fleeing from US justice to the deserts of a Middle Eastern country when wanted for questioning in relation to several murder cases in the US.
Leaving the country is not illegal. It might be if the government had indicted him, but since there were no charges or indictment, it is not a crime. I think you’re not really getting this simple fact: as a matter of law, there is no difference between you and the gentleman in question.
By this standard any fugitive is justified in continuing to avoid capture because of his fear that he will be killed during an attempt to surrender.
Not true. All fugitives until now were not in danger of being killed while turning themselves in because we didn’t used to brag about our secret presidential death list. And in any event, people don’t become fugitives just because Jacob Davies says they are. Until this man is indicted or charged or convicted or something, he’s not a fugitive.
Is there any actual evidence that if al-Awlaki called the US embassy in Yemen and offered to peacefully surrender at a given time and place, he would instead be killed?
You mean besides the presence of his name on a presidential assassination list? I mean, if the FBI discovered his name on a mob hit list, he’d have access to the witness protection program, so I’m not sure why he can’t assume that he’ll be killed by the US government at anytime, including during his surrender.
Any reason to think that the US would prefer killing him to talking to him? Anyone contemplating that sort of action would be very aware that it is obviously illegal to kill a US citizen voluntarily surrendering to US forces.
Um, given that it is illegal to have a secret presidential assassination list, I’m not sure why a reasonable person should believe that the government won’t kill them when surrendering.
So does fleeing from US justice to the deserts of a Middle Eastern country when wanted for questioning in relation to several murder cases in the US.
But did he flee? And even if yes, fleeing does not merit a death penalty without trial.
By this standard any fugitive is justified in continuing to avoid capture because of his fear that he will be killed during an attempt to surrender.
If the government had previously tried to assassinate said fugitive, and the government placed said fugitive on a Death List of pre-authorized assassinations, then yes, that fugitive would have cause to be wary of avoiding the government that has taken such a stance with respect to him/her. Luckily, we won’t run into this problem too often given the still rare use of Death Lists. Fingers crossed.
Is there any actual evidence that if al-Awlaki called the US embassy in Yemen and offered to peacefully surrender at a given time and place, he would instead be killed?
I’m not sure how there could possibly be evidence of a hypothetical situation’s denouement. There’s incontrovertible evidence that he’s on a death list. There’s strong evidence that they tried to off him already. Absent an official statement of intention to kill him if and when he tries to surrender, it’s hard to imagine what evidence there could be that they will do so. But his fear is legitimate and reasonable all things considered.
If it was practical to capture him in Yemen that would be very preferable.
If we can find him for the purpose of assassination, why can’t we find him for the purpose of detention?
Not that I agree with the policy or am trying to defend it, but just to understand the legal implications, it seems from the Dana Priest article (although it’s murky) that the U.S. forces aren’t actually doing the killing. It doesn’t change the morality, but might it not change the legality? Conspiracy, etc., I know; spirit vs. letter of the law, yes; but if Americans aren’t on U.S. soil, and are killed by citizens of countries where they are, to what extent does the Constitution require U.S. protection of Americans abroad?
But what is reasonable in the United States and what is reasonable in the Yemeni desert are quite different.
I wasn’t objecting on reasonability grounds, but on Constitutional ones. That is, if we can assassinate this guy because we think he might’ve advocated violence, why should we not be assassinating leaders of the militia movement or white supremacists?
Criminals are not compelled to comply with the justice system in order to obtain their Constitutional rights. You keep putting this back on the suspect- he can be assassinated or surrender himself to the US government to be tried (or killed, or tortured, who knows). But his rights are not dependent on his actions; that’s why we call them “rights”, not “privileges”.
Anyone contemplating that sort of action would be very aware that it is obviously illegal to kill a US citizen voluntarily surrendering to US forces.
Or one hiding out in the desert, who hasn’t even been indicted for anything. Or, even if he has been indicted, if he isn’t resisting capture with deadly force or presenting an imminent threat to others.
johnnybutter- what do you suggest as a method for dealing with AQ targets?
Sapient,
I think that’s a bit of a fig leaf for domestic Yemeni consumption. Same article notes:
“As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. ”
Im trying to think of precedents from American history that would be similar. Pirates? Those Wild West “Wanted:Dead or Alive” posters? Organized crime? The situation is novel, but a number of the elements have been dealt with before.
Sapient- if anything, that’s even scarier as a precedent. The US could wink-nudge the Israelis or some other friendly government, provide location etc, and watch a US citizen get murdered.
Or, worse, we could combine that with rendition. Pick up some troublesome journalist, send him to Egypt, the Egyptians shoot him and we wash our hands because we didn’t pull the trigger. (Of course, we’ve done something similar already).
Criminals are not compelled to comply with the justice system in order to obtain their Constitutional rights.
In Scott v. Harris the Supreme Court held, 8 to 1, that the use of deadly force by the police was justified in attempting to apprehend someone fleeing from them who posed a threat to the public. So I don’t think that statement is accurate.
I think the idea that an indictment or warrant would be a necessary precursor is pretty sound. I wasn’t exactly endorsing the policy – nor was I concern trolling, I always argue in good faith – I was & am trying to figure out what a reasonable policy might be.
The fact that no indictment appears to have been issued makes me think that they’re not operating under the kind of theory I proposed above anyway, so my argument might be a red herring. I’m not apologizing for offering it though. I am trying to understand the grounds for this kind of action and what the alternatives would be. I don’t think letting him continue to do what he’s been doing is a reasonable option.
The only other grounds I can think of would be treating him as some kind of enemy combatant, someone actively engaged in planning attacks against the United States, therefore someone who has “taken up arms” against the US. I don’t think it’s a very controversial idea that even a US citizen who took up arms against US forces can be killed on the battlefield without due process, so it’s a question of how far one stretches “take up arms” and “the battlefield”.
JD,
FWIW, me too. I’m not 100% certain about what I would do were I in Obama’s seat. I’m trying to talk it out, but it does frighten me because of the vague and seemingly lax standards being applied for US citizens. But then, I argue for stricter standards even for lousy furreners 😉
I don’t think letting him continue to do what he’s been doing is a reasonable option.
Why the frak not? We let people who murder others go free every day in this country. There are all sorts of cases where the police and prosecutor know with near certainty that an individual has murdered people and will murder more in the future but are not able to secure a conviction. Do you know what they do? They let him go. Why exactly can we not apply this logic to people that the government accuses of terrorism?
More to the point, if “letting him continue to do what he’s been doing” isn’t an option in this case, why is it an option in the many many cases where ordinary criminals got off on a technicality or were otherwise unsuccessfully prosecuted? What principled reason do you have for arguing that we shouldn’t empower police departments to draw up lists of guilty people who should be shot in the head on sight despite the fact that they haven’t been convicted of any crime?
On the other hand, this policy could be used to solve President Obama’s filibuster problem in the U.S. Senate.
But seriously, given the number of elected Republicans around the country, let alone some of the folks who elected them, who equate “liberal” with “terrorist” in their public utterances, no President should have this perogative.
Under a Palin/Beck administration, with Limbaugh as head of the Justice Department, Gordon Liddy heading up the CIA, and some rancid backbencher in the House heading up Homeland Security, I’d be assassinated before I’d even had a chance to become one of the terrorists who would try to save the country.
In Scott v. Harris the Supreme Court held, 8 to 1, that the use of deadly force by the police was justified in attempting to apprehend someone fleeing from them who posed a threat to the public
An *imminent* threat. No one is disputing that law enforcement (and even private citizens iirc) can use deadly force to protect others from imminent harm.
The fact that no indictment appears to have been issued makes me think that they’re not operating under the kind of theory I proposed above anyway, so my argument might be a red herring. I’m not apologizing for offering it though.
Not at all- Im interested in trying to figure out what a reasonable approach to this might look like, regardless of what the justifications or processes the administration wants to use.
I am trying to understand the grounds for this kind of action and what the alternatives would be. I don’t think letting him continue to do what he’s been doing is a reasonable option.
True, but I don’t want the cure to be worse than the disease. The optimal outcome may not be reachable, so starting with the assumption that it is can lead us astray. That is (as Turb suggests), I can live with outcomes where the guilty go free, but not with outcomes that threaten the American system of justice or governance.
Yeah, Turb makes a good point. I’m think of situations like Capone and other gangsters – where guilt is “known” with some certainty by the executive in charge, and yet trial and conviction is not an option (at least at the moment).
If one can assassinate a suspected terrorist without trial, why not a rapist, murderer, drug dealer or gangster?
Turbulence, I guess I’m making an argument that it’s not a reasonable option from a mixed practical/political/legal standpoint. The US has good practical reasons to take terrorism more seriously than other crimes and to take extreme measures to prevent & punish it, politically speaking it’s not reasonable to think that a US citizen who appears to be involved in recent terrorist attacks will be allowed to walk free, and legally speaking the cases you’re talking about are ones where the person has (voluntarily or not) submitted to the mercies of the justice system and due process. If someone rejects the justice system altogether, I don’t think it’s reasonable to expect it to just ignore him.
(But, again, I think that the “fugitive from justice” argument is probably not the one in operation since there seems to be no indictment or warrant, so arguing about it might be futile. I’m fairly well-convinced that an indictment or warrant would be necessary, and even if I wasn’t, my army of missile-toting robot planes is only 85% complete right now…)
JD: An indictment changes a lot. Not necessarily equaling a death sentence, but at least it sets up a legal framework.
I can live with outcomes where the guilty go free, but not with outcomes that threaten the American system of justice or governance.
Me too. Personally speaking I think it’s not that important to do something about al-Alwaki. But I’m not a politician, general, or law enforcement official, so what I think is worth pursuing isn’t going to determine what actually happens.
On the other hand I don’t think that there is actually a slippery slope here. This situation is so extreme and so distinct from other situations that I don’t think any attempt to extend it would be made. (That is not true of things like wiretapping where extending it to domestic uses causes much less notice and uproar.)
I’m reminded of Ruby Ridge or Waco, where neither side in those confrontations took the best course of action for resolving it peacefully, and the consequence was that people got killed without benefit of due process. 2nd Amendment types warned that this was a slippery slope to similar kinds of actions becoming routine even in much less extreme situations. But that didn’t really happen. And I don’t think that it’s possible that a doctrine used to excuse the extrajudicial killing of someone thought to be a terrorist who is hiding out in Yemen is going to be extended to far less extreme domestic situations.
Not saying there’s nothing to be discussed here, just that I don’t buy the slippery slope argument.
The US has good practical reasons to take terrorism more seriously than other crimes and to take extreme measures to prevent & punish it
Those reasons might be sufficient to justify harsh sentencing, but they cannot justify converting the constitution into toilet paper.
politically speaking it’s not reasonable to think that a US citizen who appears to be involved in recent terrorist attacks will be allowed to walk free
This is a very vague statement. And I think the vagueness covers up a multitude of sins. Is it your contention that if Timothy McVeigh got off on a technicality, the President would order the FBI to put a bullet in his head as he left the courthouse? That the President would face tremendous political pressure to unlawfully execute him?
I’m trying really hard to interpret the standard you describe in a way that is not equivalent to “arab/muslim citizens have far fewer rights than white citizens” and I’m having trouble. Can you help me out?
If someone rejects the justice system altogether, I don’t think it’s reasonable to expect it to just ignore him.
I really really don’t get why you keep talking about the fugitive aspect. The one person we know about is not a fugitive from justice. He’s just not. There’s no reason to believe that anyone else on the list has been informed by the US government that the government is interested in them.
I’m trying really hard to interpret the standard you describe in a way that is not equivalent to “arab/muslim citizens have far fewer rights than white citizens” and I’m having trouble. Can you help me out?
Apparently not, since I didn’t mention anyone’s race or religion in any comment on this thread. If you want to make up hypotheticals and then call me a racist on the basis of them, that’s your problem.
If you want to make up hypotheticals and then call me a racist on the basis of them, that’s your problem.
I’m sorry. I have assumed that you’re not a racist; I was figuring that you were implying that the American public might behave in racist ways ways, which is something that I myself believe.
I tell you what…Why don’t you pick a non-Arab, non-Muslim terrorist and apply your claims about the political impossibility of letting them go free and explain to me what would happen? Is that doable? Or can your claims only be applied to this one particular accused terrorist?
I don’t think that it’s possible that a doctrine used to excuse the extrajudicial killing of someone thought to be a terrorist who is hiding out in Yemen is going to be extended to far less extreme domestic situations.
If the constitution permits a secret presidential death list with zero judicial review, then what sort of executive tyranny does it actually forbid? I mean really, can you list some tyrannical acts by the president that would be considered unconstitutional under a legal doctrine in which secret presidential death list is A-OK?
More to the point, given the abject stupidity with which the US government has determined who is and who is not a deadly terrorist, why should anyone trust their ability to do so? Remember all the random guys in Afghanistan that we sent to Gitmo because they were the deadliest of the deadly? Remember Maher Arar? Not to put too fine a point on it, but lots of people that the US government swore up and down were deadly terrorists turned out to be anything but. Given that reality, this plan has a high probability of killing innocent people.
I’m sorry. I have assumed that you’re not a racist
Thanks, and if you didn’t mean it that way, I don’t want to take it that way either.
I think if McVeigh had fled to the mountains in Mexico and Mexican authorities were completely, demonstrably unable to capture him you might see a similar political dynamic. I truly don’t think it’s about race or religion in this case.
I think the distinction is between someone who has been through the justice system (voluntarily or not) and may or may not be acquitted, and someone who refuses to cooperate with the justice system. From the discussion here it’s clear that the fugitive doctrine does not apply completely in this case, but I’m still not convinced that al-Awlaki is not choosing not to surrender peacefully, even if the doctrine used to justify killing him is that he is an enemy combatant. Even combatants may surrender peacefully; I do not believe that if he tried to surrender, he would be killed, because that would clearly be illegal no matter what status he was held to be in.
If the constitution permits a secret presidential death list with zero judicial review
But if they’re operating under an enemy combatant rule, the argument will be made that it is not extra-constitutional but rather within the remit of the President as head of the armed forces. In which case it certainly could not be extended to domestic use under posse comitatus anyway.
I totally agree that there is substantial risk of killing innocent people with any program like this. I’m just not sure what the suggested alternative is. Presumably if they thought they could capture someone like al-Awlaki alive, they would be trying to do so – I don’t think they think killing him is preferable, only a poor second-best to capturing him.
I think if McVeigh had fled to the mountains in Mexico and Mexican authorities were completely, demonstrably unable to capture him you might see a similar political dynamic.
How about the members of violent pro-life groups? I don’t think there is any public pressure to declare these groups enemies of the state and start killing their members. Yet they advocate violence, and that violence has occurred numerous times. Or the mafia- as much of a problem as organized crime has caused, I dont know that many would have accepted the extrajudical murder of mafia leaders.
Can anyone lure Hilzoy out of retirement for a quick comment? This thread all but begs for her wise perspective.
“Am I the only one who thinks “assassination” is kind of a loaded word here? I’m not exactly following this stuff to the letter, but as far as I can tell, no one’s talking about snipers shooting guys through windows in Omaha, it seems more like they’re talking about military strikes abroad. ”
Wow, how did I miss this one? This is way out of bounds, and completely unconstitutional:
I suppose the administration could be arguing about the “time of war” exception? But if so it is crazy on a level that goes well beyond say the Patriot Act.
(And arguably “nor be deprived of life, liberty, or property, without due process of law” is a separate right which doesn’t have the war exception but I’m not sure how that plays out.)
What is the difference between snipers shooting guys in Omaha and “military strikes abroad?”
“Military strikes abroad” = snipers shooting guys in Yemen? Is that the big difference?
Assassination? NIMBY!
For all we know, “military strike” will be a precision guided missile that accidentally kills a dozen civilians along with the terrorist.
Sebastian: I don’t even think the ‘time of war’ clause covers this. I’d read the entirety of 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 as a unit — viz. Grand Jury protections do not apply to members of the military during War or public danger.
The only legal cover I can imagine for this is 1) the difficulty of establishing legal standing or 2) the principle of unbounded executive power during wartime.
In any case, it’s clearly unconstitutional. A Presidential decree can’t possibly constitute due process, certainly not when the aim is to deprive that person of his life!
I hardly need mention that, in the eyes of the law, nothing distinguishes Anwar al-Awlaki from anyone in this thread (except that al-Awlaki is a U.S. Citizen, which isn’t true of everybody in this thread).
Jacob: I totally agree that there is substantial risk of killing innocent people with any program like this. I’m just not sure what the suggested alternative is.
Would you consider it acceptable and reasonable if the government of India launched a missile strike to kill the Butcher of Bhopal? If not, why not?
Warren Anderson has been a fugitive from justice since 1992, for the culpable homicide of over 25,000 people. If it’s OK for the President of the US to order the assassination of people claimed to be involved in terrorist strikes (or planning terrorist strikes) it is presumably A-OK for the government of India to launch a missile strike at Long Island to take out someone who is directly responsible for the deaths of far more people.
I’m reminded of Ruby Ridge or Waco, where neither side in those confrontations took the best course of action for resolving it peacefully, and the consequence was that people got killed without benefit of due process. 2nd Amendment types warned that this was a slippery slope to similar kinds of actions becoming routine even in much less extreme situations. But that didn’t really happen
Not to get all wacko militia nutball up in here, but you might want to read Radley Balko more frequently.
Why the focus on US citizenship? Is it ok for the US president to order the assassination of foreign nationals? Not assuming anybody says it is, but have a suspicion that the latter will raise less eyebrows…
Goddddddaaammmmnnnnned Typepad. Another post went away. Fortunately I secured it by Ctrl-C
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The Bhopal case might not be ideal here, since the killing of the people was not the intent. A far better example would be the fugitive terrorists that blew up that Cuban airliner, escaped from prison in South America and are now sheltered by the US in Florida. They did commit acts of terrorism, they were properly sentenced in a court of law, they absconded from justice and are protected by unaccountable parties that are even under suspicion of complicity in the above mentioned acts of terrorism.
The US would clearly not take it lightly or applaud, if the Castros would send agents to take care of those guys (even if it was just abduction to bring them to court in Cuba) or would drop some Daisy-Cutters or MOABs on Mimai to take them out.
The Bhopal case might not be ideal here, since the killing of the people was not the intent.
Intent is not strictly necessary in cases where people failed to take sufficient precautions. I think summary execution would be well justified. That is to say, if an indian government operative shot Anderson and was brought to trial and if I sat on the jury, I would not vote to convict.
A far better example would be the fugitive terrorists that blew up that Cuban airliner
Indeed.
The US would clearly not take it lightly or applaud, if the Castros would send agents to take care of those guys
I suspect that the cable news channels would present this as an act of war against the US. The Whitehouse would probably be more measured and “only” describe it as a horrific crime against universal norms of civilization.
The US would clearly not take it lightly or applaud, if the Castros would send agents to take care of those guys
True. Although we didn’t take action against Pinochet when his regime committed an act of terror on U.S. soil (in Washington D.C. no less) – which killed a U.S. citizen! – in the case of Orlando Letelier and Roni Moffitt.
But he sure worked miracles with the economy!
Maybe I should be putting this comment on Eric’s newer post, but I didn’t want to just comment here and run.
Promulgating legal justifications for illegal/unconstitutional actions are indeed a slippery slope. Would John Walker Lindh have been taken into custody later in the Bush administration – after Gitmo, Abu G, etc.? If you ruin the trust people might have had in your commitment to the rule of law, you can’t very well blame them for consequently not trusting your commitment to it (and turning themselves in, in this case, even if they haven’t been indicted…).
The Bush Administration did enormous damage to, among (many) other things, the US’s reputation as a place in which rule of law obtains. But the Obama administration seems determined – in this and other DOJ/intelligence instances – to evade its own responsibility. It’s one thing to grapple with the economic mess Bush/Cheney left – I give them a lot of leeway on that. But in this other realm, ‘Bush did it!’ is sounding more like an excuse than a justification.
How much of this is about political and legal ass-covering and how much about ‘keeping America safe’? I can’t escape the conclusion that there is more of the former than is seemly, considering the stakes.
The ‘smart’ Poli. Sci. answer to this is that, of course, it’s perfectly rational for any president to not want to relinquish any power voluntarily. I hate to sound corny, but I kind of admire how Washington (the president) acted irrationally…
novakant: “Why the focus on US citizenship? Is it ok for the US president to order the assassination of foreign nationals?”
On the contrary! If a
KingPresident wishes to decree the death of one of hissubjects>citizens then that is, essentially, an internal matter.If a
Kinghead of state decrees the murder ofsubjects of other Kingsforeign citizens, then he clearly oversteps his authority.Okay, again, just to be contrary: what if we are in a legitimate “war against al Qaida.” If an American “puts on the uniform” of al Qaida, what about killing an American who is part of the enemy army? I’m sure that there were Americans who put on the Nazi uniform who were killed by the American military, and it didn’t present a Constitutional problem.
The rules, obviously, get murky when our “war” is against something as vague as “terror” (an idea that fortunately Obama has abandoned) or even “al Qaida” (better than “terror” but still not solid). If al Qaida is an army of enemy soldiers and Americans are soldiers in that fight, I don’t think killing them qualifies as assassination. The problem isn’t just in the “killing Americans” idea; it’s the “war against al Qaida” construct.
I’m sure that there were Americans who put on the Nazi uniform who were killed by the American military, and it didn’t present a Constitutional problem.
There were many.
If an American “puts on the uniform” of al Qaida, what about killing an American who is part of the enemy army?
Is there an uniform? If so, what does it look like?
The rules, obviously, get murky when our “war” is against something as vague as “terror” (an idea that fortunately Obama has abandoned) or even “al Qaida” (better than “terror” but still not solid). If al Qaida is an army of enemy soldiers and Americans are soldiers in that fight, I don’t think killing them qualifies as assassination. The problem isn’t just in the “killing Americans” idea; it’s the “war against al Qaida” construct.
True, but also the “uniform” issue. Killing a NAZI in uniform by the military during a war is not the same as the US govt declaring someone to be al-Qaeda and, on the strength of its accusation alone, killing that person wherever he or she then-presently resides.
Point being: we’ve made, literally, thousands of mistakes in terms of identifying innocent people as al-Qaeda. The uniform is not so obvious.
The problem isn’t just in the “killing Americans” idea; it’s the “war against al Qaida” construct.
The problem is: Can you prove the person you intend to kill is in fact a member of al-Qaida, and could be be found guilty of terrorism in a court of law?
The answer, for the vast majority of people whom the US has identified as “guilty of belonging to al-Qaida” over the past nine years, is a resounding No.
And we know this, because the individuals so identified were, eventually, cleared and released – they were alive.
The “Taliban fighters”/”al-Qaida terrorists” who were rounded up and killed in Afghanistan, in December 2001 (the Dasht-i-Leili massacre) after the siege of Kunduz, cannot be cleared – they are buried in a mass grave eight years ago. Were all three thousand of them actually guilty? Were any of them guilty of anything but fighting in a war in their own country? Even after an investigative journalist films the gravesite and interviews the witnesses the lack of interest in the victims alleged to be enemies of the US is … pretty much total.
Every objection that is made to capital punishment in a judicial system applies to extra-judicial assassination, only more so: with the added factor that if you send a missile to kill someone you’re sure is a terrorist, you may kill the alleged terrorist, and you will also kill the innocent civilians who are standing next to him.
The problem isn’t just in the “killing Americans” idea; it’s the “war against al Qaida” construct.
I think both are problematic. That is, even when we were at war with Germany the government didn’t have the right to pick someone up off of the street of Boston, accuse them of being a German agent, and remove them from the civilian justice system.
ex Parte Quirin is misunderstood on this point: the accused didn’t contest that they were trained by Germany and brought to the US to commit wartime sabotage. Without that point, there is no civilian justice system except insofar as the Executive permits it- which is pretty clearly not what the founders had in mind.
I’d like propose starting with this question and work back from it (if necessary, depending on the answer):
Would it be okay for the president to order a missile strike on the known hiding place of Osama Bin Laden with the intent of killing him?
Would it be okay for the president to order a missile strike on the known hiding place of Osama Bin Laden with the intent of killing him?
Would it be okay for President Mahmoud Ahmadinejad to order a missile strike on the known hiding place of George W. Bush with the intent of killing him?
Same question: same answer. Bush is a known criminal guilty of causing the deaths of over a million people – a lot more than Osama bin Laden. Would it be OK for the ruler of another country to have him killed – given that it can be assumed that the US will never surrender him for trial?
Technically, Jes, you didn’t answer the question. 😉
Would it be okay for the president to order a missile strike on the known hiding place of Osama Bin Laden with the intent of killing him?
I think Id accept that as a reasonable extra-Constitutional solution to a problem not handled well by the Constitution. But leaving this as the status quo invites abuse (just as the institutionalization of any overt violation of rules erodes respect for those rules).
One of the biggest differences between Osama and Joe Schmoe is that Osama has publicly acknowledged his complicity in the 9/11 attacks and his desire to conduct more attacks; this makes it very different IMO from a target who is merely suspected of being affiliated with AQ or involvement in some plot.
Technically, Jes, you didn’t answer the question. 😉
No, it would not be okay.
the institutionalization of any overt violation of rules erodes respect for those rules
Thanks Carlton Wu, for being succinct where I was long-winded. Agents of the US surely tortured before the Bush administration, but perverting the law to legalize torture isn’t evidence of a respect for the law – rather the opposite. Ass-covering.
Agree with JB and CW.
“Agree with JB and CW.”
Actually, me too.
Must be a special friday 😉
“Thanks Carlton Wu, for being succinct where I was long-winded. Agents of the US surely tortured before the Bush administration, but perverting the law to legalize torture isn’t evidence of a respect for the law – rather the opposite. Ass-covering. ”
I agree on the issue of torture, but I’m not sure I agree with “the institutionalization of any overt violation of rules erodes respect for those rules” as a general principle. Doctor assissted suicide comes to mind as a possible counter-example. Though come to think of it maybe it is a possible example instead. I’ll have to think about it.
Would anyone care to address Jes’ question regarding Ahmadinejad ordering a missile strike on the known hiding place of George W. Bush with the intent of killing him? I don’t know if I’m up to it.
That aside, I’m with Marty, Eric, JB and CW.
“This situation is so extreme and so distinct from other situations that I don’t think any attempt to extend it would be made.”
JD, this situation is not that extreme. Let’s look again at the claims:
although his communications with Maj. Nidal M. Hasan were largely academic in nature. Authorities say that Aulaqi is the most important native, English-speaking al-Qaeda figure and that he was in contact with the Nigerian accused of attempting to bomb a U.S. airliner on Christmas Day.
The problem with hindsight and this stuff is the most ordinary things take on sinister meanings once you become a target. John McCain sagn a song on the campaign trail about mass murder and he is still an upstanding Senator and almost was president. Picture this you go to an outdoorsman’s show. There you chat up a guy selling fishing lures. He mentions a cabin he has near your favorite lake that he rents out.
You go and have a wonderful time, catch a bunch of fish. Upon getting back you are taken away in an unmarked car to a federal holding facility. You will not know what you are accused of, and they won’t be any hurry to tell you. They will then pour over whatever they can find in your bank records and other papers, communications (terrorist contacts)
All because the guy you rented the cabin from uses it for his nationalist militia or Weather Underground II or what have you. Once again, sitting in your cell, you will know nothing of this.
The problem here is that, regardless whether this particular guy is the threat they say, they do not need to determine if they made a mistake. It’s embarassing all around.
also, the lack of evidence against someone far more often increased suspicion i.e. “This guy is really good at covering his tracks” rather than a re-evaluation of their initial position.
“also, the lack of evidence against someone far more often increased suspicion i.e. “This guy is really good at covering his tracks” rather than a re-evaluation of their initial position.”
Not sure I believe this, or at least that there aren’t any examples to cite one way or the other.
Conceded, that is probably overstatement on my part. But it is a very real reaction if no one forces them to separate what the think they know with what the evidence actually shows. Thus the whole court thing.
“Would it be O.K. for the President to order a missile strike on the known hiding place of Osama Bin Laden with the intent of killing him?”
On this particular news day, I would wait until Richard Shelby, Tom Tancredo, and any number of these individuals who mascarade as Republicans and Americans, but who share bin Laden’s goal of destroying the U..S. Government, crowd into the tall one’s cave to mull over their mutual strategies, and then launch away.
Kill as many enemy birds with one stone as possible.
Missiles are expensive.
My major problem with this discussion is that the anxiety expressed here is predicated on 1) the lawlessness of this particular action being that the targets are US citizens, and 2) the fear that this will be extended to domestic use in the US.
My comments yesterday were addressed to those concerns. I think there was an interesting discussion about whether the “fugitive from justice” doctrine could be held to apply, and I was convinced otherwise. In light of that I can only think that what is held to apply is the “enemy combatant” doctrine, and I think that the lawlessness of that is far less clear. There may not be a declared war against al Qaeda and they may not wear uniforms, but there was Congressional authorization for action against them, and al-Awlaki is reasonably believed to be involved with al Qaeda. Such a belief may or may not be accurate, but it’s not unreasonable. As such the legal case for action against him seems far stronger than the legal case for killing non-citizen innocents in attempts at targeted killings in Afghanistan and Pakistan, for instance.
In any case what I find strange is the implied idea that US citizens possess a right not to be killed by the US government that non-citizens do not, or that it is even a hair more outrageous or offensive for the US to kill citizens than non-citizens. To the contrary. As a practical matter, US citizens already have far greater protection than non-citizens and are far less likely to be mistreated if they surrender to authorities, so as a practical matter they possess options to avoid being killed by Maverick missiles that non-citizens do not.
Secondly, the fear that this will be extended to the US doesn’t seem credible, and again seems to come from an exceptionalist viewpoint, where there is something especially troubling about a child in Peoria getting a bomb down his chimney compared to a child in Pakistan. Posse comitatus prevents the military from conducting law enforcement operations inside the US, and the enemy combatant doctrine is far less likely to be upheld inside the US; and as a practical matter, Americans may be willing to tolerate people in other countries having their houses destroyed by missiles but they’re probably not going to like the idea that it happens here. The concern that “it could happen here” is 180 degrees from where the real problem is.
“Kill as many enemy birds with one stone as possible.
Missiles are expensive.”
I must decidely disagree. The stimulative effect of having to replace multiple missiles far outweighs the actual cost.
Therefore, if we could get Richard Shelby, Mary Landrieu, Ben Nelson, oh heck, its a long list we wouldn’t necessarily agree on. So you pick one and I’ll pick one, up to ten each to put in the cave. Then we should just make sure with a few missiles apiece.
So ignoring for the moment the nationality of the person in question, is extra-judicial assassination justified? What is the level of evidence that should be required? Presumably, something stronger, much stronger than “reasonably believed“.
Various comments in this thread have brought up the governments track record and it’s not great, innocent detainees and people incorrectly placed on the no fly list just for starters. Even looking at criminal cases where all the wheels of the justice system have been turned, innocent people still go to prison and in some cases are executed.
Do you still want the Government taking irreversible steps where there is no chance of reprieve? How would you appeal?
For sure it’s for the worst of the worst, but who gets to make that call?
Jacob: I, for one, think that domestic use against only U.S. Citizens would be a whole lot less problematic. That gives people two reasonable defenses and also leaves 95% of the world alone. It wouldn’t be great for me or most of my friends, but if that was the policy I’d set out to take myself out of the target groups immediately.
(There’s lots of examples of Kings and dictators killing their own people for whatever reasons and in whatever quantities pleases them. The rest of the world normally doesn’t intervene or pay any attention.)
“Reasonable belief” is a bit of an interesting legal standard to propose. Where do you think that would fall on the escalating scale of Probable Cause, Preponderance of Evidence, and Beyond a Reasonable Doubt?
(Also, Congress is specifically forbidden from legislating an individual’s guilt. “Bills of attainder” being forbidden along with ex post facto laws and whatnot.)
Marty: I don’t think anyone here will speak a kind word about Ben Nelson. I was a bit puzzled the other day to see von describe him as an ally of liberal/progressive groups.
Probable Cause, Preponderance of Evidence, and Beyond a Reasonable Doubt
None of which standards are ever held to apply to military actions against opponents outside the United States. In this case, the opponent group was designated by Congress.
As for the justification for “extra-judicial assassinations”, I don’t think it’s a question you can ask in isolation. I don’t think what the US is currently doing in Pakistan and Afghanistan is likely to be worthwhile, or is morally justifiable overall. But I think it’s insufficient to just say that, given that it continues to happen anyway. There are greater and lesser evils. The United States is conducting a military campaign against al Qaeda whether I think it should or not.
The alternative to drone airstrikes is not doing nothing. It’s a ground campaign, or area bombing. “Assassination” has taboo connotations, but as a military tactic it has a long history, and since it targets combatants, in my opinion it is no more or less legitimate than any other violent means. In some circumstances it may cause less death and destruction than the alternative. I wouldn’t romanticize a ground campaign, which tends to slaughter civilians in droves, destroy infrastructure and property, and draw in numerous combatants on both sides to be killed or wounded. So I’m not convinced that the alternative to targeted airstrikes is any less bloody or more palatable. I can’t say I’m entirely convinced to the contrary, either, but I’m convinced enough that I think that I think they may be the lesser of two evils in many cases. So yes, given that one way or another the United States is going to try to destroy these groups, I think targeted killings are not a less-moral or less-justified method than the alternative violent methods that would be used.
For the record, I believe that al Qaeda should have bee treated as an international criminal conspiracy, and I’m uncomfortable with having treating them as an “enemy” against whom we’re at “war.”
That said, if we are treating them as enemies in war, I don’t see how it’s a problem to target an American who we suspect, and publically state we believe, is a part of al Qaeda. At a certain point, in war, it seems ridiculous for an American citizen to expect due process if s/he is living in a place where an enemy is launching hostile actions and is suspected (and publically accused) of participating in hostility against the United States, These days, no “enemy” seems to wear a uniform – hasn’t happened in any war I can think of since Korea. To say that we can only engage in war against people who wear uniforms is ridiculous. If our enemies in WWII had decided that they could have more easily won by dressing in civilian clothing (hard to imagine, true) we should still have been able to fight against them, and still targeted Americans who we believed to be fighting with them. I don’t find myself agreeing with Jacob Davies very often, but in this I think he’s right.
The problem seems to be the fact that we’re defining war as being unbounded by geography since there is no place where an American can find safe haven where due process rather than battleground prerogatives rule. If it’s legitimate to have a war without geographical boundaries, then the rules need to change. (Perhaps adopting US civil war standards would be appropriate – where since we’re not fighting against another country, we’re in a global civil war?)
“If our enemies in WWII had decided that they could have more easily won by dressing in civilian clothing (hard to imagine, true) we should still have been able to fight against them, and still targeted Americans who we believed to be fighting with them.”
What of those who did not fight with them but offered religious guidance? Should they have been specially targeted?
This piece is several years old, but relevant & worth reading.
In the event that you’re the same Katherine who front-paged here at OW, my best wishes to you, and my hopes that you are doing well.
Thank you, Katherine: the link provides a very careful and pragmatic examination of these issues.
Jacob Davies: Secondly, the fear that this will be extended to the US doesn’t seem credible
Of course it isn’t credible. It doesn’t matter that if the US justifies carrying out extra-judicial assassination against people whom the President of the US has declared to be enemies, that equally justifies any country in the world doing the same to people in the US that their ruler has declared to be enemies.
If it’s justifiable for the US to launch a missile strike to kill al-Awlaki it’s justifiable for Iran to launch a missile strike to kill Bush, and for India to launch a missile strike to kill Anderson, and … shall we go down the line of American criminals living safely within the borders of the US?
But it won’t happen. Terrorist strikes within the US will have been made more likely as a result of this policy, because terrorism is the known and predictable result of a powerful country inflicting injustice on a less-powerful one. But state strikes against American criminals will be made no more likely by it than they were before: weaker countries cannot afford to apply the tit-for-tat rule to the US.
Instead, rage against the US rises, and some few of those enraged turn to terrorism, and … you know what happens next. Tall buildings blow up, thousands die, Americans go crazy and claim the people who did it are the worst people in the world and anything is justifiable against them.
9/11 was the best thing that could have happened for George W. Bush. When Republicans advocate behavior by the US likely to bring on another 9/11, it is worth asking yourself if they are really all as stupid as they seem to be.
If our enemies in WWII had decided that they could have more easily won by dressing in civilian clothing (hard to imagine, true) we should still have been able to fight against them[…]
There was an actual joke in Nazi Germany that, with seemingly everyone wearing some kind of uniform, the military would have to switch to civilian clothes to stand out at all.
I took the liberty of taking a few excerpts from Katherine’s HRW link to spark interest:
(…)If Washington means “war” metaphorically, as when it speaks of the war on drugs, the rhetoric would be uncontroversial—a mere hortatory device designed to rally support to an important cause. But the administration seems to think of the war on terrorism quite literally—as a real war—and that has worrying implications.
(…)
Padilla could have been gunned down as he stepped off his plane at O’Hare, al-Marri as he left his home in Peoria. That, after all, is what it means to be a combatant in time of war.
(…)
But if Padilla and al-Marri are not enemy combatants for the purpose of being shot, they should not be enemy combatants for the purpose of being detained, either. The one conclusion necessarily implies the other.
(…)
The following three-part test would help assess whether a government has met its burden when it asserts that law enforcement rules do not apply. To invoke war rules, a government should have to prove, first, that an organized group is directing repeated acts of violence against it, its citizens or interests with sufficient intensity that it constitutes an armed conflict; second, that the suspect is an active member of the opposing armed force or an active participant in the violence; and, third, that law enforcement means are unavailable.
RTR
“Reasonable belief” is a bit of an interesting legal standard to propose. Where do you think that would fall on the escalating scale of Probable Cause, Preponderance of Evidence, and Beyond a Reasonable Doubt?
Agreed that this is problematic.
None of which standards are ever held to apply to military actions against opponents outside the United States. In this case, the opponent group was designated by Congress.
But this begs the question doesn’t it? He’s an American citizen accused of being a part of a group by the executive. Is that all it takes once Congress has identified the group? Perhaps. But I’m not entirely convinced yet.
My feeling is that the HRW link in some ways vindicates gov’t policy. There’s a specific reference in the piece to Yemen.
This comment from The Editors says a few things worth saying:
f you don’t [want] to call occupying 2 countries and bombing 2 or more others (I’ve honestly lost count) a real “war”, that’s fine, but you’ll have to admit we have a real violent way of being peaceful. I’m just going to call it “war”, my own eccentric definition, if nobody objects. We are nipple-deep in war today, have been for some time, and these facts are not avoidable or negotiable without a time machine.
Now, as part of this “war”, we’ve been blowing up people, yes, including Americans, for many years. I gather Greenwald and friends noticed this a few days ago, and assumed it was Obama’s doing, but it has actually been public policy, and public knowledge (available from the hated MSM, no less!), for most of a decade. That’s fine, I don’t know everything, either. So it’s old news, first of all, but it barely qualified as “news” then. In “war”, as in other, more ephemeral states where the normal process of law does not work, you will kill those deemed worth killing, and you will do this whether they have a social security number or not. This is not “civilized”, but that’s why “civilized” and “war” are different words. And, frankly, offering some kind of blessed “review” if someone does have an American citizenship does not, and can not, bring “war” and “civilized” any closer together. Ask Gen. Sherman if you need clarification on this point.
elm: What of those who did not fight with them but offered religious guidance?
What if that religious guidance consisted of advising them to commit war crimes? Intentional targeting of non-combatants is a crime whether under criminal law or the laws of war. al-Awlaki’s “guidance” appears to have been involved in Abdulmutallab’s decision to try to kill 388 innocent civilians with a bomb.
I have no problem with the idea that chaplains who counsel soldiers to slaughter civilians might be legitimate targets in warfare. Conspiracy to commit war crimes is not the sort of religious guidance deserving special protection.
Eric: He’s an American citizen accused of being a part of a group by the executive. Is that all it takes once Congress has identified the group?
Well, there’s more to it than just being accused, there appears to be solid evidence of him associating with at least one actual terrorist who actually tried to kill a bunch of people on a plane, and given his public statements on the acceptability of violence against civilians I don’t think it’s a stretch to say that their contacts are likely to have risen to the standard of a criminal conspiracy. I’d suggest if he doesn’t want to be treated like a member of a terrorist group, he should probably find some new friends. Alternatively, he should surrender to US authorities to explain his contacts with Abdulmutallab. Freedom of association does not give a person the right to belong to a criminal conspiracy. Freedom of speech does not give a person the right to incite violence or to participate in a criminal conspiracy.
I just want to point out that the standard proposed in Jacob’s last comment would put the cross hairs on a pretty significant swath of the domestic white separatist / white supremacist movement, among other groups.
In other words, by Jacob’s standard the CIA could go out tomorrow and start killing white supremacists here in the US, of whom there is no shortage. Find ’em and shoot ’em, no further questions asked or answered.
How far do we want to take this?
What are we giving up, and what are we getting in return?
No, that would not be true, because white supremacist groups are not (in general) a murderous criminal conspiracy or a group plotting mass-casualty attacks inside the United States, and they are not a foreign group that the US Congress has designated as a legitimate target of US military action.
Even if they were a criminal conspiracy, the fact that they are inside the United States and within reach of US law enforcement means that the same doctrine could not be applied under posse comitatus.
If a white supremacist group left the United States and began plotting and attempting to execute mass-casualty attacks inside the US, and Congress had designated that group a legitimate target for military action, then we could talk about the same standard applying.
white supremacist groups are not (in general) a murderous criminal conspiracy or a group plotting mass-casualty attacks inside the United States
The “in general” here is kinda crucial.
What if a member of a white supremacist group that had some association with acts of terror or violence were residing outside the US? Or just happened to be physically outside the US on any given day?
I can assure you that such a person would not be hard to find.
Is the fact that Congress has authorized military action against Al Qaeda the critical difference?
Or is it sufficient for someone to provide a religious justification for acts of violence against US persons or interests?
I can assure you that such a person would not be hard to find.
Really? I am not saying you’re not arguing in good faith, but are there really white supremacist groups known to be plotting and attempting to execute terrorist attacks in the US? I think there’s a real difference in kind between them and a group like al Qaeda in the Arabian Peninsula, who not six weeks ago sent an actual terrorist with an actual bomb, and then took public responsibility for it. I don’t know much about white supremacist groups but I’m fairly sure that if they were doing that kind of thing I would’ve heard about it.
Is the fact that Congress has authorized military action against Al Qaeda the critical difference?
When it comes to legality, I think that is a critical difference. I mean I think the idea that this is a slippery slope to domestic use of the same tactic is a bit like saying, “Oh my god! The President can order the army to KILL PEOPLE in foreign countries and they DO IT! Without oversight or due process! They LITERALLY SHOOT THEM WITH GUNS! What’s to stop him from ordering them to do it HERE IN YOUR HOME TOWN?!?!”
Well, what’s standing in the way of that is the same thing standing in the way of firing Maverick missiles at people inside the US: it’s illegal in about 17 different ways, people wouldn’t stand for it, Congress wouldn’t authorize it, and it’s unnecessary because ordinary law enforcement works pretty well inside the US.
But it’s not that I entirely disagree with the sentiment. Armies and warfare are scary things and there is always a danger that militarization will come home to roost. But the idea that it’s more scary, more of a slippery slope to domestic abuse of military capabilities to target one guy with a missile than to invade an entire country, overthrow their government, and occupy them for a decade… well I don’t buy it.
Now it’s true that sometimes domestic adoption of smaller-scale military tactics has happened. For instance, the use of armored cars by the police in siege situations, or routine issue of assault rifles to police officers. But I think there is a gaping chasm between that type of thing and missile attacks that cause mass destruction. The availability in the military of explosive grenade launchers and machineguns hasn’t seen their adoption by police forces. Cop cars don’t have 20mm cannons. And people aren’t about to accept houses in American cities being blown up with missiles anytime soon.
Well, according to this we now have someone to decide whether someone is a high value target, at least for Miranda purposes. Thank goodness we don’t torture any more.
Really? I am not saying you’re not arguing in good faith, but are there really white supremacist groups known to be plotting and attempting to execute terrorist attacks in the US?
How about anti-abortion groups? Eric Rudolph and Scott Roeder ring any bells? I bet we could find some of these people right down near your local Planned Parenthood.
Well, what’s standing in the way of that is the same thing standing in the way of firing Maverick missiles at people inside the US: it’s illegal in about 17 different ways, people wouldn’t stand for it, Congress wouldn’t authorize it, and it’s unnecessary because ordinary law enforcement works pretty well inside the US.
Sorta been there, done that.
“This is not “civilized”, but that’s why “civilized” and “war” are different words. And, frankly, offering some kind of blessed “review” if someone does have an American citizenship does not, and can not, bring “war” and “civilized” any closer together. Ask Gen. Sherman if you need clarification on this point.”
The first part of “the editors” rant is true, but just because we committed a gigantic and illegal act of aggression in Iraq, causing the deaths of hundreds of thousands of innocent people doesn’t mean that we are now free to do whatever we want, because, hey, there’s a war on and war isn’t civilized–you can ask General Sherman (arguably just another war criminal justifying his own actions). The question is whether the fight against terrorism should be treated as a “war” and if so, what rules should be followed, since even war has rules. You don’t get to do whatever you want because you’ve said there’s a war on–you especially don’t get to point to one of your own illegal wars as some sort of background that justifies whatever you want to do now. Admittedly, kill massive numbers of people and a few more just seems like it’s well under the margin of error, but still.
Jacob: Really? I am not saying you’re not arguing in good faith, but are there really white supremacist groups known to be plotting and attempting to execute terrorist attacks in the US?
Yes, and very successfully. Why do you suppose that access to abortion is much more difficult in the US than in countries of comparable wealth where abortion has been fully legal for thirty-plus years? It’s not just your crummy health care system: it’s because there’s been a homegrown terrorist movement operating against clinics, clinic staff, and patients, for the past thirty-plus years.
True, mostly when the pro-life movement goes as far as murdering an abortion provider law enforcement will step in. But if you click on the “extreme violence” statistics you will see how many attacks still have to be left open – and law enforcement is rarely useful in stopping the mobs who attack and harass patients from showing up at clinics that provide abortions, as damaging and as threatening – as the outliers of a violent terrorist movement – as their actions are.
By the way, going back to the original topic: you never said whether you think it would be acceptable for the government of India to launch a missile strike at Warren Anderson, or for Iran to launch a missile strike at George W. Bush. If you feel it’s acceptable for the US to do this to others, are you prepared to accept that it’s equally acceptable for other countries to do this to the US?
Well, there’s more to it than just being accused, there appears to be solid evidence of him associating with at least one actual terrorist who actually tried to kill a bunch of people on a plane, and given his public statements on the acceptability of violence against civilians I don’t think it’s a stretch to say that their contacts are likely to have risen to the standard of a criminal conspiracy.
Couple of problems here: who decides what is, and what isn’t, “solid evidence” – and is the crime of “associating with one known terrorist” worthy of a death sentence without trial? And I actually do think that is something of a “stretch.” I mean, what if the guy was giving him religious guidance – even if the point was to say that death in battle is noble and rewarded by Allah. Is that worthy of a death sentence without trial or due process?
are there really white supremacist groups known to be plotting and attempting to execute terrorist attacks in the US?
White supremacist groups have plotted and carried out terrorist attacks in the US continuously from the end of the Civil War until now. In more recent years, they’ve been joined by neo-Nazi and skinhead groups.
They’ve robbed banks, carried out assassinations, assaulted and killed random black, hispanic, jewish, and gay people. They’re heavily armed and train in the use of arms and explosives.
Ku Klux Klan, Aryan Nation, World Church of the Creator, National Alliance, Hammerskins. And on and on and on.
Timothy McVeigh apparently made a number of phone calls to members of the National Alliance the day of the Oklahoma City bombing. Prior to 9/11 that was the largest act of terror ever carried out on US soil.
Many of these groups have a well developed ideology of racial superiority, which is buttressed by religious and academic figures who present their bigotry as faith and scholarship.
So, by your standard, it would be legitimate for the US military or the CIA to find and kill these religious and academic figures as long as they aren’t physically in the US. Collateral damage would be justified if necessary.
When it comes to legality, I think that is a critical difference.
I agree. It’s better if the President sends the military or CIA on search and kill missions against individuals all around the world with Congressional authorization, rather than without.
Look, here is the problem.
There is a very crisp legal definition of what Al Qaeda is. They are a textbook terrorist organization according to the definition of “terrorist organization” as found in the US Code.
As such, the appropriate action to take against them is to find them, arrest them, try them, and if they are convicted, punish them according to the terms of the US Code.
Unfortunately, that’s not the most direct and efficient way to deal with them. We can’t get all of them that way, it requires a lot of cooperation with other governments, some of them inevitably escape justice.
So we have begun treating Al Qaeda, specifically, as some kind of “special case”.
They’re a terrorist organization, but a terrorist organization that we are at war with. Complete with Congressional authorization.
The problem this creates is that the actions available to the President as Commander in Chief — deployment of military force, ability to kill people more or less at will, freedom to do devastating damage to lives and property — are carried out in countries and civilian populations with whom we are not, in fact, at war.
And a thousand slippery slopes leading to the erosion of the rule of law and civil liberties are opened.
It’s a f***ing mess, and it’s only getting more tangled.
What is needed is an effective legal structure for dealing with international terrorist groups having the scope and sophistication of Al Qaeda. I’m not sure what that will look like, but what we have now is a freaking nightmare.
I’m sure that few folks reading this would shed a tear if some skillful CIA sniper managed to kill Osama Bin Laden with a carefully placed two in the hat.
But that’s not how it ends up happening.
What ends up happening is unmanned Predators dropping “precision ordinance” on wedding parties where somebody’s humint contact’s cousin said Abdul Bin Whatever was going to be a guest. Except he meant that *other* Abdul Bin Whatever, the bad one, rather than the perfectly innocent one we end up incinerating along with 100 of his friends and family.
We effectively end up waging total war on whatever locale somebody we think might be a member of Al Qaeda happens to be hanging out in.
Since, due to posse comitatus, that has not so far ended up being downtown Cleveland, few folks here in the US are losing any sleep over it.
But it’s gotta suck to be Abdul Bin Whatever’s next door neighbor, or the parent of a kid that goes to school in his neighborhood, or somebody who rides a bus that is traveling down the road next to his Toyota pickup when it gets bombed.
None of this is hypothetical.
And last but not least, the US has given, and continues to give, safe harbor to people who have carried out terrorist actions in other places. By our current doctrine, there is absolutely no standard by which we could object to, frex, Cuban agents coming into the US and blowing up Luis Posada Carriles along with his family and anybody within 100 feet of him at the time.
It’s a mess.
JDAM explosion.
“Precision” is a relative term.
You’re acting as if I think the idea of the US roaming around the world killing people with robot planes is some great good. I don’t. It isn’t. However, the US is currently roaming around the world (or certain parts of it) with hundreds of thousands of troops and killing people all over the place. Which I also think is a rather poor idea. But given that that is true, which it is, then if the choice is between invading and occupying Yemen with 50,000 troops, and dropping a bomb on some fool from New Mexico, I’ll pick the latter. As that quote from The Editors said: if this isn’t war, we have a real violent way of being peaceful. Pretending that the actual alternative to dropping a bomb on this guy is “do nothing” is entirely unrealistic.
Look, not to put too fine a point on it, the idea that what is troubling about the US firing Maverick missiles into people’s houses to kill them is that It Could Happen Here is pretty sick. The idea that there is something especially troubling or illegal about this target being a US citizen is pretty sick.
What is actually troubling about the US firing Maverick missiles into people’s houses to kill them is that It Already Happened Here, hundreds of times over, if you happen to live in the mountains of Pakistan and Afghanistan and may (or may not) support one particular political movement in your own country, something that is not at all the concern of the United States.
By comparison to the thousands of people already killed by this tactic for the crime of belonging to a political party some of whose members once sympathized with Osama bin Laden, I can hardly see why there should be any special qualm at the prospect of killing one idiot from New Mexico who ran away to join the circus – sorry, Al Qaeda – and now keeps company with people who genuinely, no kidding try to blow up actual planes full of civilians. That asshole chose to be in the situation he’s in; he could’ve stayed in NM and sold real estate or worked in a Starbucks, choices not available to families in Pakistan who get wiped out on the say-so of a completely unaccountable CIA officer and never receive the slightest attention or notice. Saying that the really scary, really illegal thing about this is that they’re targeting an American is grotesque.
The concern that it is a slippery slope to domestic use of this tactic is, I’m sorry, laughable. The “only thing” keeping them from doing it here is the exact same “only thing” keeping all the soldiers at your local army base from invading your town and shooting everybody. Which is disturbingly little, but compared to what is keeping them from doing it in Pakistan – absolutely nothing, in fact, they do it all the time – I would count your blessings.
Yes, true. But relative to the older, unguided bombs, that pic you showed was pretty much right on target. Target looks to be a stack of shipping containers, possibly 8′ square by 40′ long each.
Of course, no weapon is going to be able to prevent people or objects other than the intended target from being destroyed. That’s the big problem with taking action from the air: your intel has to be very, very good, and usually isn’t good enough. Smart bombs on target aren’t any more proof against “collateral damage” than are dumb bombs on target.
Probably most people know this already.
Not that this changes the nature of the discussion, but I’d guess a more likely choice for a missile used to attack someone in a home would be Hellfire. Mavericks have a much larger warhead, and are mostly used for purposed where a larger warhead would be effective and where a smaller one wouldn’t.
I’d guess it’s a bit pricier, too, because it’s larger, and has an imaging seeker.
There is a slightly different concern that’s been expressed here which is about the legality of the tactic as a whole, and that is mostly what I have been interested in discussing. I don’t think it is illegal. As Donald Johnson stated above, even war has rules. However, if there is one thing universally held to be legal in war, it is killing those you believe to be enemy combatants. “Assassination” of combatants – even named individuals, even people whose citizenship you share – is legal by the laws of war. “Due process”, “beyond a reasonable doubt”, on the other hand, have never been the standards used to determine who is an enemy combatant. Again, that is why it is called “war” and not “a jury trial”. And the idea that it’s especially troubling or even illegal that this war might touch an American citizen has a very ugly subtext. It smacks of going to Haiti, finding the one blonde American tourist who twisted her ankle in the quake, and declaring that her case is the real tragedy.
“However, if there is one thing universally held to be legal in war, it is killing those you believe to be enemy combatants. “Assassination” of combatants – even named individuals, even people whose citizenship you share – is legal by the laws of war. ”
Well, that’s the problem. Should we deal with terrorism by declaring war on it? Because if you do, it gives the government the authority to do all sorts of things it isn’t supposed to do in peacetime. Governments like that, of course. Democratic Presidents seem to like it almost as much as Republicans.
Also, I’m a little antsy about this anyway, because along with all those bad Americans (however few or many there may be) who might possibly be guilty of terrorism, we’ve got Americans right here at home possibly guilty of war crimes, including torture and starting a war of aggression against Iraq on false pretenses. It bugs me that it always comes back to this–the really powerful types can get away with murder (with Obama’s help) and then we spend time arguing about whether or not the government has the right to kill some more people (American or not). What possible difference does it make whether they have the right to do so or not? They’re going to get away with it anyway.
Should we deal with terrorism by declaring war on it?
That is the question.
It’s relevant for lots of reasons, but one of the reasons is that we *already* have a structure for dealing with terrorism. It’s called criminal law.
There needs to be a damned good reason to go beyond that.
Here’s why:
Because if you do, it gives the government the authority to do all sorts of things it isn’t supposed to do in peacetime
There’s damned little the President can’t do against an entity that we are “at war” with.
We kill civilians on a regular basis now, in countries we are not at war with, in the interest of “taking out” AQ operatives.
We assert our right to do so, but it’s basically illegal. We’re just too big of an actor for anyone to call us on it.
And the intelligence we use to identify who the bad guys are and are not is not completely reliable.
The approach we are taking puts us in the position of waging total war on people and places who have bugger all to do with AQ, just because AQ people happen to be nearby.
Is that right?
Is that the only choice we have?
For slarti, here’s a picture of a Hellfire missile blowing up a tank. For “tank” substitute “jeep” or “Toyota pickup” or “SUV” or “condo”, and I think it’s clear that collateral damage is still an issue.
The policy we are pursuing means we will be killing people who are innocent and / or uninvolved with AQ, just because they’re in the vicinity of folks we choose as targets.
The military does extraordinary due diligence to minimize civilian casualties, but “minimize” is not the same as “eliminate”.
Seriously, folks who really want to call this a war need to think through all of the implications of what that means.
russell: “folks who really want to call this a war”
Which folks here really “want” to call this a war? The fact is, it is a war since Congress authorized military action against certain people. It would be nice if we could go back in time and do the 2000 election over again with a different outcome, and a different way of dealing with historical events. We can’t. We got into several wars. We’re trying to find our way out of them now, but in the meantime, pretending that war only happens when two uniformed armies are standing in columns facing each other on a designated battlefield is ridiculous in light of the fact that no war has been fought that way for almost a century.
“We’re trying to find our way out of them now, but in the meantime, pretending that war only happens when two uniformed armies are standing in columns facing each other on a designated battlefield is ridiculous in light of the fact that no war has been fought that way for almost a century.”
That’s silly. Nobody said anything like that here. The part about “we’re trying to find our way out of them” is vague. Obama wants to decrease our involvement in Iraq and increase it elsewhere. And war with terror all around the world is a mistake, whether Congress authorized it or not.
I’m of the opinion that if you have legal grounds to kill someone for having committed terrorist acts, his nationality doesn’t enter into it. How hypocritical would it to be to tell a sniper team you can shoot the guy on the left and the woman on the right but the guy in the middle has to be arrested? There are numerous people who were born in this country and served in the military or public service who, for one reason or another, decide to go to war against their country of birth. The law seems pretty clear to me, protect the innocent whomever the attacker. And frankly, anyone who at this point in time doesn’t understand the implications of joining up with a group of terrorists, wherever they come from, is too stupid to understand a trial.
“That’s silly. Nobody said anything like that here.”
Actually, Eric mentioned the lack of uniform, and his and many of the other comments ponder what degree of evidence is required to determine whether an American who’s hanging around in Yemen with people who have demonstrated involvement in terrorist attacks is an enemy.
As to Obama’s alleged commitment to perpetual war, he indeed is trying to get us out of Iraq, and has significantly drawn down forces there, and his “surge” in Afghanistan is for the stated purpose of accomplishing boosting security efforts and training, then getting out. A lot of people doubt the possibility of his succeeding at that, but that’s a different conversation. I don’t know what other “elsewhere” you’re referring to. Obama has also abandoned the “war on terror” language of the Bush administration. He’s narrowed it down to al Qaeda, which may not be appreciably narrower, but at least the enemy is a group of people now, rather than a concept.
Again, let’s erase the last decade and start all over again – I’m for that if you can figure out how.
Sapient: and many of the other comments ponder what degree of evidence is required to determine whether an American who’s hanging around in Yemen with people who have demonstrated involvement in terrorist attacks is an enemy.
Except for the part about being so sure about the “demonstrated involvement in terrorist attacks”. Because the US hasn’t proved that good at that in the past.
Again, let’s erase the last decade and start all over again – I’m for that if you can figure out how.
Close down Guantanamo Bay and Bagram Airbase and all the other illegal prisons currently being run by the US to store your kidnap victims.
Launch an investigation into the authorisation and practice of kidnapping and torture by the US: prosecution and jail time to follow.
Launch an investigation into the aggressive and highly illegal attack on Iraq, with all the faked-up evidence about WMD, and have the instigators turned over to the Hague for prosecution for crimes against humanity. (That would be George W. Bush, Dick Cheney, Donald Rumsfeld, and probably a few others. The US may need to have them back when the torture and kidnapping investigation has got to the point – starting at the bottom up – where Bush, Cheney, and Rumsfeld need to be questioned.)
The US needs to sink some big money into the reconstruction of Afghanistan and of Iraq, supervised by trustworthy NGOs.
There’s probably more the US needs to do to erase the last decade and start all over again, but that would certainly be on the right road.
You for that, Sapient?
“You for that, Sapient?”
Sure, so long as the attempt to do so doesn’t bring the Bush/Cheney crime family back into office. (Not to address the practical problem s with “reconstructing” countries that have so little security…)
I’m fairly certain that given the political realities we live in, Obama’s doing what he can.
Actually, with the Hellfire/Maverick choice, I was speaking to overkill, not collateral damage. Collateral damage is still an issue with pistols, hand grenades, edged weapons; you name it.
Yes, that’s more or less what I was trying to say. There are new, more precise weapons with smaller warheads in the works, but they’re not proof against choosing the wrong target, or having some uninvolved person walk into the kill zone between when the weapon was released and when it hit. Even a guided block of concrete can kill the wrong person.
The fact is, it is a war since Congress authorized military action against certain people.
Congress authorized the use of military force against nations, groups, or people who planned and carried out 9/11, or who give those people safe harbor.
Since the people who planned and carried out 9/11 live in all different kinds of places, the fairly high-intensity warfare we are directing toward Al Qaeda members spills over onto lots of folks who had nothing whatsoever to do with it.
In addition, I wonder how many of the people who were actually responsible for planning and carrying out 9/11 are still alive and / or not in our custody.
Bin Laden, Zawahiri. Who else?
Are the people who were involved in the Christmas Day bombing covered by the AUMF of 9/18/01? They could be if they are actually members of Al Qaeda, since Al Qaeda was the organization involved with the 9/11 attack.
What does it mean to be a “member” of Al Qaeda? Are all members of Al Qaeda fair game, even if they had no involvement with 9/11? Even if they had no involvement with any specific attack against the US?
Or maybe the 9/18/01 AUMF has been extended, somehow, to apply to any nation, group, or person who plans or commits any violent act against the US or its interests.
Has it? Should it be? That seems unclear.
The Taliban gave safe harbor to Al Qaeda in 9/11. Are current day members of the Taliban, who may have no association with Al Qaeda, may have had no connection to any attack on US soil, and whose interest in fighting US troops may extend only to getting them the hell out of their country — are they covered by the 9/18/01 AUMF?
None of that is clear. To me, anyway. But we’re dropping bombs on their heads anyway.
Net/net, we now have a situation where military intel or the CIA can brief the President that know where someone they believe is a “bad guy” is, and the President can authorize them to kill that person. With bombs or missiles fired from a Predator, if that’s what’s most useful.
No further review is required, because it’s the President’s prerogative as Commander in Chief to apply military force as he sees fit, especially since Congress has given him a fairly broad blanket authorization.
He can effectively bring extraordinary levels of force to bear, anywhere, at any time, if he believes someone with “some level” of association with Al Qaeda is there. If some innocent person or persons get caught up in it, that’s something we will try to avoid, but ultimately it just sucks to be them.
I’m hoping this strikes you as problematic.
It’s true, we can’t go back and do the last eight years over. That doesn’t mean we have to do them over again now.
Collateral damage is still an issue with pistols, hand grenades, edged weapons; you name it.
True, slarti, but there is a question of scale.
Sure, so long as the attempt to do so doesn’t bring the Bush/Cheney crime family back into office.
You really think Americans love being the world’s Mafia so much?
Or you’re just resigned to living in a country governed by crime families, against whom the ordinary citizen can do nothing?
I suspect both are true, actually. Which makes me wonder why more of you aren’t trying your hardest to get out of the fascist oligarchy you’ve come to realise you’re living in.
Not to address the practical problem s with “reconstructing” countries that have so little security.
*sigh* There’s always an excuse for doing nothing.
I’m fairly certain that given the political realities we live in, Obama’s doing what he can.
If you believe that the political reality is that Obama having managed to gain office despite not being a member of the entrenched oligarchy, is now compelled to permit the criminals he preceded in office go free and their crimes go uninvestigated because if he tried to bring down your governing mafia neither he nor his family would survive, do you plan to emigrate, Sapient? When and where to?
You can move to live in countries where criminals in office will, eventually, face investigation. There’s a reason why so many European countries refused to take part in the illegal war on Iraq. Do you want to do that, or are you contented to be governed by criminals whom the democratic process will never get rid of?
russell: “I’m hoping this strikes you as problematic.”
Your comment strikes me as unnecessarily sanctimonious. Of course it’s problematic. What Obama faces is that we started two wars which will go on whether we stay or not, and he has to assess the fallout from leaving. It’s not quite as clear in my mind as it seems to be in yours that if we brought all of our military forces home, there would suddenly be Peace on Earth. That’s not to say that we shouldn’t leave, but there are consequences with whatever we do, and I think Obama is weighing the potential consequences in good faith and with intelligent analysis. He’s acknowledged that he’s pursuing what he believes is the best of poor options.
Jesurgislac: “There’s a reason why so many European countries refused to take part in the illegal war on Iraq.”
Noting, of course, that your country wasn’t one of them. Perhaps you shouls ask yourself these same questions since, last I heard, Tony Blair is still on the loose.
As I’ve mentioned, I live in a very conservative state and worked very hard for my progressive candidates to win. Now that they have, I’d like to see them stay in power for awhile so that they can do some incremental good, even if they can’t achieve a perfect world. I notice that russell’s progressive state just elected a Republican to Congress – why don’t you advise him to emigrate? It’s true that the U.S. has a lot to repair, so I’m not going to give up and let go of our hard fought 2008 victories. It’s all about the art of the possible, and with some perseverance, things will get better perhaps (or at least not worse).
“Noting, of course, that your country wasn’t one of them.”
You said it so I didn’t have to.
russell: maybe the 9/18/01 AUMF has been extended, somehow, to apply to any nation, group, or person who plans or commits any violent act against the US or its interests. Has it? Should it be?
Has it? Yes.
Should it be? No, if you ask me, but nobody did.
I think we’re talking past each other here. I’m saying that there is nothing revelatory about the news that the US considers itself authorized to kill anyone – American or not – who it reasonably believes to be a member of al Qaeda provided they are outside the United States. I do think it adopts that tactic as a second-best to capturing alive, for obvious intelligence reasons. I don’t think that there is anything special about an American being the target – if it is illegal to kill an American connected with some group calling itself al Qaeda, it is just as illegal to kill a Pakistani or an Afghan or a Saudi or a Yemeni.
This post was not prompted by the news that the US kills people it thinks belong to al Qaeda around the world whenever it feels like it. That is not news. This post was prompted by the supposed news that it will do so even if the person is an American. I say supposed because the only surprising thing about this to me was that anyone was surprised. Of course it will kill Americans who it thinks are al Qaeda members. It would be perverse not to.
And in the specific case in question, the only named target on that list, the one Greenwald goes on to talk about as if he is “just a regular guy”, is actually a real piece of work, someone who endorses attacks on civilians and despite being born in the richest country on Earth has decided he wants to go out and hang with the kind of people who thought killing 3,000 people was a fun jape. I don’t think any of these idiots deserves a JDAM for breakfast, but since they’re going to receive them whether I like it or not, I’m not going to single out for special sympathy the one guy who absolutely does not need to be where he is, doing what he is doing. He could go home. He’d probably go to jail, but he would get due process and a lawyer and all that. He chooses not to and instead hangs out with people who try to blow up planes. Well, as some guy once said, “For all they that take the sword shall perish with the sword.”
And there’s no question that the special attention here is because he’s an American. All the hand-wringing over domestic use of this tactic stems from that. That is a profoundly tone-deaf way of expressing concern about the tactic. I can already imagine pretty well what having your house blown to bits feels like, and I don’t need to panic about the near-zero chance that It Could Happen Here to do so.
And all of that being said, given that the US is using military force against al Qaeda in various countries, I do not think it is inconsistent to say that I would like them to use the minimum force possible, or to say that dropping a bomb on someone may be that minimum force in many cases. I seriously doubt that the number of people killed by targeted airstrikes is even 1/100th the number killed by infantry soldiers on the ground in Iraq and Afghanistan. The siege of Fallujah saw the entire population of the city evicted from their homes and much of the city razed. That is war. That is what we are doing whether you or I like it or not. Targeted airstrikes do not seem to be the thing that causes the millions of refugees, ethnic cleansing, and mass killing that have followed ground campaigns in Iraq and Afghanistan. So if we’re gonna either invade Yemen or drop bombs on some guy from New Mexico – and I think we are – I vote bombs, since “none of the above” is not on the ballot.
It’s not quite as clear in my mind as it seems to be in yours that if we brought all of our military forces home, there would suddenly be Peace on Earth.
????????????????
My comments throughout this thread are about the doctrine that the President can use military force against individuals that are deemed, without any significant review, to be some kind of “bad guy”. Generally that translates to “member of Al Qaeda”.
To me, it’s problematic to address a terrorist organization with the tools you use to fight a war against a nation state. By “problematic” I mean it creates manifold unintended and undesired results.
It might even be against the law.
I’m not looking for or expecting Peace on Earth to result from anything any agency of the US government, or any government, ever does.
Jacob, I’ve read some of your comments here to be more of an endorsement of Obama’s actions, rather than simply an observation that they are a reality. My apologies if I’ve misread you.
I completely agree that for all practical purposes, and most likely legally, being a US citizen is not going to get you an exemption from assassination.
Your comment strikes me as unnecessarily sanctimonious.
As an aside: it’s hard to know what tone to take, sometimes.
We’ve given the President authority to use military force to hunt down and kill anyone he deems to be associated with “terrorist organizations”.
The way that plays out is we drop missiles and bombs on people from unmanned aircraft.
We do our best to blow up the right folks, but it doesn’t always work out that way.
So, in order to keep ourselves safer from random acts of ideological violence by some smallish margin, we are complicit in the incineration of some number of people who are just in the wrong place at the wrong time.
How that really makes me feel is that I want to go find the nearest Pakistani person I can find and ask them to forgive me and my country for killing so many of their countrymen by mistake.
That would be kind of a futile gesture, no doubt, and would be unlikely to be particularly welcome, I would imagine.
So, I’m not sure WTF to do.
What I’m asking is whether we should be blowing up lots of innocent people in order to blow up the ones we really want to kill. I guess that can come off as sanctimonious, but it’s really just a f***ing simple question.
Is this really a good idea?
What is it accomplishing?
If it’s not a good idea, is there any way we can make it stop?
That’s what I want to know.
Yeah, I know about the AUMF, and I guess it’s better to throw some missiles at some guys we think might be Some Bad Guy than invade and occupy yet another middle eastern nation.
But isn’t there some god damned better way to go about this?
Seriously, isn’t there?
This ain’t sanctimonious, dude, because my hands are as bloody as yours are.
I just want to know if there isn’t some better way we can do this.
I’ve read some of your comments here to be more of an endorsement of Obama’s actions, rather than simply an observation that they are a reality. My apologies if I’ve misread you.
Thanks, but I think apologies are not necessary – I don’t exactly endorse those tactics, but I don’t exactly not-endorse them either. I think that the alternatives may be much worse, and that tension is probably apparent here. I wish he had made much earlier decisions to pull out of Iraq and Afghanistan and in general to down-scale the military response to al Qaeda. But he didn’t, and there are reasonably good arguments in favor of the direction he has taken, even if on balance I wish it was otherwise.
The de-militarization of the conflict with al Qaeda is going to be very difficult, not least because AQ has actually attacked military targets. I don’t think I am the pants-wetting type when it comes to terrorism – I lived in England during the IRA bombing campaigns, which were similarly not a real threat – and I am not personally afraid of being the victim of a terrorist attack. But: I do think that prevention of terrorism is very important, not least because the response to 9/11-scale attacks will be mass-scale warfare whether I like it or not. That is why I am generally in favor of heavy security measures at airports and other non-violent measures that may reduce the incidence of terrorism, and why I am somewhat ambivalent about the use of extreme force against actual terrorist groups who are actually attempting to conduct attacks, as we just saw with al Qaeda in the Arabian Peninsula and Abdulmutallab. I think that extending that doctrine to, say, Pakistani Taliban is a big mistake.
But I do think al Qaeda and terrorism in general are a grave danger to peace, not because they themselves are any more of a threat than Gavrilo Princip and his friends were, but because the response to terrorism is likely to be war. If dropping a few bombs on people who genuinely are planning terrorist attacks can pre-empt that – and that is a big if – it may be the lesser evil.
The maintenance of peace and law and order almost always involves threats of violence. That is the pacifist’s dilemma. It doesn’t make any actual instance of violence righteous, and it’s a very dangerous role to adopt; taking it on can easily lead to war instead of peace. But I don’t believe that is inevitable. We should absolutely seek to minimize the actual violence, and to make sure there is as much oversight as possible, and to question the whole exercise from top to bottom, and I’m not going to call anyone naive or idealistic or weak for doing so.
As I said above I think that the extension of this policy beyond al Qaeda and beyond people who are actually seeking to attack the US is mistaken. But this case is not a good example there. al-Awlaki is actually a member of a group called al Qaeda who seem at least loosely connected to the group called al Qaeda who attacked the USS Cole, and who seem to be closely connected to Abdulmutallab. It’s far less of a stretch to say that this is an action legally authorized by the US Congress than others.
russell: This ain’t sanctimonious, dude, because my hands are as bloody as yours are. I just want to know if there isn’t some better way we can do this.
These discussions are about life and death. If there’s a subject where perceived sanctimony is both inevitable and worth tolerating to some extent to try to get to the heart of the matter, it’s these. I think everyone here is, in good faith, trying to get the heart of the matter. For me the needle goes to 11 when I think that the argument is being made that it is more illegal to kill an American than to kill a foreigner, but I try (maybe fail) to temper that with the idea that I might be misreading, or that someone making that argument may have a point, or may just be trying to describe what is without saying what should be.
One of the things I like about ObWi is the tolerance for that kind of argument, without it too often going to ad hominem or grand statements of moral superiority.
al-Awlaki is actually a member of a group called al Qaeda who seem at least loosely connected to the group called al Qaeda who attacked the USS Cole, and who seem to be closely connected to Abdulmutallab.
Why should we believe this to be true? I mean, according to various government officials, everyone at Gitmo is a deadly killer, including those deemed innocent by the military. So why should we uncritically accept these claims given the pathetic track record government officials have in this area?
To put it another way: is there any amount of government deceit, ignorance, and mendacity which will causes us to stop accepting these claims at face value? Or will we continue to uncritically accept government claims regardless of their track record?
I might have more confidence if I saw the US government actively working to identify officials who make false claims and reprimand or replace them. That’s the sort of thing that organizations do when they’re concerned about the truth. But no one in the government has ever lost their job or gotten so much as pay cut for declaring that some random guy is a super-terrorist on the verge of destroying all humanity. If the US government has zero interest in telling the truth, why should I assume that they’re being truthful?
And by “tension”, I do in fact mean that I just said “I don’t think any of these idiots deserves a JDAM for breakfast” and a few hours later followed that up by saying that I’m not sure it’s a bad idea in some cases. I apologize if that seems slippery, but it’s not intentional contrarianism. Rather that I am persuaded by the case against this kind of action to about the same extent as I am by the case for it. That I think the case for it is the one that needs to be made is really to the credit of those making the case against. I hope that’s implicit but in any case it’s worth making explicit.
That I think the case for it is the one that needs to be made is really to the credit of those making the case against. I hope that’s implicit but in any case it’s worth making explicit.
I think so: thank you for clarifying.