As always, I thank Andy and David for their responses. Let me total up the scorecard:
1. According to Andy, the president can initiate military action at any place and at any time — including Canada and New Jersey, in his examples — and, even if such an action is illegitimate (within his power but beyond his authority, as Andy puts it), the question is “not justiciable,” because “we are a body politic, not a body legal.” So, if, for instance, the president should flout the Constitution by delegating Congress’s war-making power “to an international tribunal that lacks political accountability to the American people,” the main options are: 1. impeach him. 2. wait for an election. We may call ourselves a nation of laws, but if such questions are “not justiciable,” then the president is not bound in any meaningful way by law.
2. Also according to Andy, the military has absolute power to determine who is an enemy combatant in one of these campaigns the president has unlimited power to initiate. The law simply does not apply. Writes Andy:
The question of who is an “enemy combatant” is not a legal issue. It is, in the first instance, a battlefield determination to be made by our armed forces, and thereafter a political issue to be decided by the officials our system makes responsible for the authorization of military force and the conduct of war.
3. According to the standards set by the Obama administration, the things that can get one designated an enemy combatant — designated by the legally unimpeded military in the course of any campaign, legitimate or otherwise, the president has unjusticiable and legally unlimited power to initiate — include making speeches and publishing magazine articles. As VDH notes below, Awlaki was considered dangerous largely because of his linguistic ability and his social-media savvy.
4. Which adds up to: The president can order the death of Andrew C. McCarthy, David French, or Kevin D. Williamson for writing a magazine article, and if the American people don’t like that, they can wait until November 2012.
Awlaki was obviously in the camp (metaphorically and then literally) of our mortal enemies. If propagandizing on behalf of a mortal enemy were enough to justify the assassination of a U.S. citizen, then we would have shot half the faculty of Harvard and 93.8 percent of the Motion Picture Academy a few decades back. But this is wartime, the argument goes. So was Korea, Vietnam, and much of the second half of the 20th century, but we managed to get through it without ordering the assassination of I. F. Stone, and his beloved Soviets were a far greater threat to this nation than is al-Qaeda.
If the Authorization for Use of Military Force does indeed permit all this, then it is only a law legalizing lawlessness. Citizenship, as I have argued before, is my main concern here. If citizenship in a republic means anything, it means that raw political clout is not the only thing standing between the citizen and arbitrary violence on the part of the state. The extrajudicial killing of American citizens — not on a battlefield, mind you, and not in the course of combat — fundamentally changes the relationship between citizen and state. I have my doubts that any sensible person would have let himself freeze to death at Valley Forge to establish such a government.
Kevin said: "If propagandizing on behalf of a mortal enemy were enough to justify the assassination of a U.S. citizen, then we would have shot half the faculty of Harvard and 93.8 percent of the Motion Picture Academy a few decades back." This one was too easy--------Say--that may not be a bad idea! ;-) (For the humorless out there-this is a joke.)
Reply to this commentLinkReport AbuseHar dee har, maybe you and John Kerry should go on a comedy tour together.
Reply to this commentLinkReport AbuseWell argued. Could we agree that Yemen is a battlefield?
"If propagandizing on behalf of a mortal enemy were enough to justify the assassination of a U.S. citizen, then we would have shot half the faculty of Harvard and 93.8 percent of the Motion Picture Academy a few decades back." Sorry, I don't see the downside here. Also, you meant months, right?
Reply to this commentLinkReport AbuseGet a declaration of war or something similar out of Congress declaring Yemen a battlefield and we can talk. Until then, the use of deadly force in a territory where we are not at war against an individual not associated with a state with which we are at war is blatantly illegal. This is before we even get to the issue of US citizenship.
Reply to this commentLinkReport Abuse"If propagandizing on behalf of a mortal enemy were enough to justify the assassination..."
By this logic, the general staff of an opposing army is not a legitimate target because they're just intelligence officers, planners, and chiefs of staff. Nobody shoot that IO guy, he's just responsible for coordinating mass media to achieve information superiority on the battlefield!
Reply to this commentLinkReport Abusewearing the same uniform gets you targeted ... we are not in a Geneva war on AQ ...
Reply to this commentLinkReport AbuseThe fact that they don't wear uniforms gets them more rights?????
They are part of AQ, whether they wear uniforms or not. We are at war with AQ.
Nuf said.
Reply to this commentLinkReport AbuseDorsaiguy, I'm usually behind you at least 80%, but this is a weird response. The activity of a general staff member that makes them a legitimate target of the warfighter is not their uniform, it's their role within the enemy's organization.
Or to put it another way, you are offering more protection for those who ignore the law of land warfare than for those who observe it.
Reply to this commentLinkReport AbuseTherein the clash of law and reality. What does in fact constitute justifiable homicide? For me, it is when a person invades my property which is actually me and not just what I own. If I am threatened and I make that judgment, I defend myself. I don't ask first if a jury has found that person to be guilty of what I think is the charge. If my society agrees with me, I am found not guilty if tried. If judged guilty, I pay the price society has determined. But, all of us, as humans, have the opportunity to make that decision. If al-Awalki posed a threat to me and my government determined that he was a threat and needed to be killed if unable to be captured or brought to trial, then this society will judge, through the ballot box if it was justifiable. If a person acts in a threatening manner, threatens and calls for other people's death and aids and advises people to kill other people...he made a decision to act in a way that will or should cause others to harm him. He made the decision. We reacted in what I think was a rational manner. And, if there is a hell, I hope he is punished for eternity.
Reply to this commentLinkReport AbuseKevin, though I expect you will find you are beating your head against a wall here, let me thank you for injecting rationality and sanity into this question.
Reply to this commentLinkReport AbuseKevin is cool and smart, yes, but what he has injected into this story is the farthest thing from either rationality or sanity, and much closer to the kind of philosophical hand-wringing we would expect from the liberal nitwits on the left.
No offense intended.
Awlaki was at war with the U.S., whether or not the libertarian death-cult wishes to accept it, and I am particularly glad he's dead. Who's next?
Reply to this commentLinkReport AbuseRE: "shot half the faculty of Harvard and 93.8 percent of the Motion Picture Academy a few decades back"
Only half? Come on!
Reply to this commentLinkReport AbuseBeing an American citizen doesn't mean anything anymore.
Reply to this commentLinkReport Abuse/
You may be assassinated without benefit of trial (al Awlaki may be a S.O.B. who deserved to die, but he was an AMERICAN S.O.B. who deserved to die AFTER A TRIAL).
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You may be asked to pay out-of-state tuition if you're from OK but want to go to Univ of TX: despite illegals getting that sweet in-state tuition rate. (THANK YOU GOV PERRY, FROM A HEARTLESS AMERICAN S.O.B.).
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You may be told there's no need to vote in November since elections have been "temporarily tabled." (Thank you governor Bev).
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Where the hell's Goldberg on this? It's the most wrong he's ever been about anything, and I say this as a guy who loved his book so much I bought 2 more copies to give away. Hardcovers.
Memo to geoff-uk:
Make a mental note in your next comment about in-state tuition for illegals: it is given in Oklahoma.
Or remove foot before shooting off mouth.
Reply to this commentLinkReport Abuse"4. Which adds up to: The president can order the death of Andrew C. McCarthy, David French, or Kevin D. Williamson for writing a magazine article, and if the American people don’t like that, they can wait until November 2012."
...and announce it, with great fanfare, on the pages of all the newspapers? Well yes, I suppose he could issue such an order. He could open his mouth and say it. Then:
(1) The military would refuse to carry it out
(2) If the military did carry it out, the A.G. would probably have POTUS arrested
(3) If he didn't have POTUS arrested, he'd be impeached in a matter of days
(4) And barring all that, he'd certainly be voted out by all 50 states.
So it's important to think through these hypotheticals. What binds the president in his designation of enemy combatants is politics rather than law, yes. But in this country, a robust democracy with strong democratic institutions, that IS AN IMPORTANT LIMITATION.
Reply to this commentLinkReport AbuseWell at least you have the courage to admit that "rights" are an illusion.
Reply to this commentLinkReport AbuseWow, Williamson. Apparently if there is no law, there can be no judgement either. So without the laws you crave, there just isn't any difference between killing Awlaki and killing you. Wow.
Tell you what: why don't you start writing columns and articles inciting violence and war against the United States, if you're so determined to push the parallel? Because without the meat of the offense, the parallels only exist at the 35,000-foot level. You write "Awlaki was obviously in the camp (metaphorically and then literally) of our mortal enemies" in an attempt to gloss it over with some cutesy remark about the Left in academia and Hollywood. But that's the heart of the issue. You declare yourself our enemy, and then we can construct the parallel. As it is, kindly remove the torsion from your undergarments about the enemy casualty.
Reply to this commentLinkReport AbuseI think this Paultardian/The Nation quotes above pretty much let us know that this particular columnist wasn't being satirical. Apparently, one can be a member of AQ actively working to recruit individuals to attack us pretty much consequence free in the twisted moral universe of KW.
Reply to this commentLinkReport AbuseThe "extrajudicial killing of American citizens" was a choice made by Awlaki. He could've opposed the U.S. government here in America, taking advantage of his rights as a citizen "within the system." Instead HE took the "extrajucial" path: he freely chose to flee overseas and side with our enemies. A mistake unless he's enjoying his time in Muslim paradise.
Reply to this commentLinkReport AbuseCan the military legally kill anyone any time anywhere? This is a practical question, because "law" is ultimately linked to enforceability. Sure, the Commander In Chief could kill almost anybody -- and legally. But even the most unscrupulous leader knows that the guns may point at him or his loved ones some day. So the restraint here is not legal but practical. The military will kill as directed, but also tends to get squeamish about killing someone's cousin, best friend, etc. Therefore the restraint of posse comitatus is welcomed. Stay in the U.S. and you'll be fine. But Kevin, go overseas and pick up a gun and you're fair game legally, and practically you're Scarlet O'Hara, relying on the kindness of others...
except this man didn't pick up a gun and shoot at Americans ...
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