Kevin — you write:
If anybody can be designated an enemy combatant in a war in which the battleground is everywhere and the president has legally unlimited power to do as he will, and when citizens can be put to death summarily, with no checks and balances and no meaningful separation of powers, we have surrendered something important.
I understand your concern with protecting constitutional rights and good government. But your comment merits a few responses.
First, for purposes of combat actions such as the targeted killing of Awlaki, the battleground in our war against al-Qaeda is not “everywhere.” It is in those few countries that either willingly or unwillingly provide significant safe havens for al-Qaeda. Yemen is in the first rank of that group of countries, along with Pakistan, Afghanistan, and Somalia.
Second, legitimate al-Qaeda targets in each of those countries are subject to attack pursuant to Congress’s 2001 Authorization to Use Military Force after 9/11, which even Vice President Biden has deemed a constitutionally sufficient declaration of war. That disposes of the concern that the executive branch is operating without the imprimatur of Congress. And the president is at all times subject to a variety of laws that constrain his conduct as commander-in-chief. Just because this particular killing is not justiciable (on the facts known to us) does not mean that federal courts cannot hold the president to account for violations of U.S. law.
Finally, to the extent your reference to “checks and balances” goes to due process, our rules of engagement are informed by international law and fall within the regulatory powers of Congress. Nobody is alleging that the rules of engagement were not followed in this case. The Constitution’s due process guarantees for criminal defendants in a civil prosecution are meant to protect private citizens from the power of the state. They have never (at least not until recently) been understood to benefit combatants – U.S. citizens or otherwise — who have taken up arms against the state itself.
The difficulty of the issue, it seems to me, is this: The fight against al-Qaeda combines the aspects of both war and criminal law enforcement. Because it doesn’t fit entirely neatly into either paradigm, even Obama has to adopt hybrid policies, such as targeted killings and military commissions. From a terrorist’s point of view, the advantage of being both combatant and criminal is that he can wind up accumulating the protections afforded to each category, and thereby wind up in a better position than if he were just one or the other. Hence the danger, from our point of view, in conflating due process rights with the law of war.
An al-Qaeda convoy riding along a desert road in Yemen is a legitimate bombing target, period.
i think you're right that an al-qaeda convoy is a legit target, period. but i don't think an individual US citizen is a legit target absent some kind of due process.
Reply to this commentLinkReport Abuseotherwise, the US gov't could strike down any US citizen once they leave the borders with no judicial protection. I like the process of expatriation that Yglesias outlines here: External Link
When you take up arms against your country, you lose the protection of its laws.
If I moved to Canada and joined the Canadian army, I would be a legitimate target if war broke out between the US and Canada.
No judicial action necessary.
I have no idea why people find this so difficult to understand.
Do you really think that Obama is going to start launching drone strikes on Sarah Palin or Rick Perry? Really? And if he did, this would be precedent that would let President Obama get away with it? Really?
Reply to this commentLinkReport AbuseWhen did Congress issue a declaration of war against Yemen?
Reply to this commentLinkReport AbuseCongress did not declare war against France in 1941 but the presence of Germans in France justified combat on French soil.
See about 500 other examples in US history of fighting enemies on friendly or neutral soil.
Next, please.
Reply to this commentLinkReport AbuseFrance was no longer France but part of the German empire.
PS. Why do I have to type a paragraph in SOLVEmedia for the opportunity to comment.
Reply to this commentLinkReport AbuseGood Lord. A recapitulation of the same arguments made in the post prior to Kevin's. The issue has nothing ... NOTHNG ... to do with Congress declaring military action against AQ. It has to do with the fact that Awlaki was a U.S. citizen.
I was in favor of the killing of Baitullah Mehsud, Zarqawi, and would favor killing Hassan Nasrallah. They aren't U.S. citizens. Awlaki was. Kevin's concern has to do with where this might lead.
Take your head out of the here and now, and go one, or two, or five or ten years into the future when it's another terrorist group, another person, and another country (perhaps the U.S.?), and no jury adjudicates on this. And give the President ... whomever s/he is ... virtually unlimited powers. Play this thought experiment for a while.
Expand your view of the problem to understand Kevin's point(s).
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Reply to this commentLinkReport Abuse"The issue has nothing ... NOTHNG ... to do with Congress declaring military action against AQ."
Au contraire.
It has everything to do with being in a state of war against AQ.
When you take up arms against your country, you lose protection of its laws. Repeat that to yourself as necessary.
The state of war is dispositive. The declaration is just the icing on the cake.
Reply to this commentLinkReport Abuse"It has to do with the fact that Awlaki was a U.S. citizen."
So were all the confederate soldiers in the Civil War. So was one of the saboteurs in WWII. See Ex Parte Quirin (1942) in which the SCOTUS said “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences.”
Reply to this commentLinkReport AbuseYour "point" has been answered by several legal eagle types including John Yoo and Richard Epstein. It has no merit.
I'm pretty hawkish, and have defended many harsh actions by the US government, but this post seems somewhat non-responsive to Kevin's point.
1) You take issue with Kevin's note that the battlefield could be everywhere, and disagree saying the battleground "is in those few countries that either willingly or unwillingly provide significant safe havens for al-Qaeda".
I don't think that detracts from Kevin's point. The Executive appears to be free to designate an area's local authority to be unable or unwilling to capture terrorists, and so the designation of a battlefield is- for all intents and purposes- anywhere.
2) You quote the AUMF, but Kevin never brought that up. Sure, the AUMF gives the Executive these powers. His point is that if all it takes is the Executive "deeming" a person to fall under the AUMF purview, then we have given up something important.
And I believe that there is merit to this argument. What due process gets you on CIA's Kill List?
3) Everyone knows that Due Process was meant for criminal prosecution. But that is not the point. The point is that by declaring this American an enemy combatant, the Executive has disqualified him from these protections...in which case those protections aren't so great at all.
By what process did this American "become" an enemy combatant? I know that there are videos of him inciting violence- but that does not make someone an enemy combatant. And there is purportedly evidence that Awlaki was involved in acts of war against us- but that is based on assurances from the government...we don't know that to be the case.
FWIW: I'm glad he's gone. But I grudgingly have to agree with Williamson here, that we need to be real concerned with the method of dispatching him. It certainly seems like the Executive, empowered with the AUMF has the ability to circumvent Due Process for American Citizens by merely "finding" that you are an enemy combatant.
Reply to this commentLinkReport AbuseYou fail to consider this at its simplest level. Taking up arms against your country eliminates the protections the country provides.
AQ and those like them hope we will get tied up on the dilemna you attempt to create by over thinking it.
Kevin fails for the same reason - he is trying to be too smart by half and as such loses the logic that is right in front of his face. This along with Kevin's nagging tendency to believe tax increases can help us with our budget (when the track record suggests that is unlikely) would indicate he is great theoretically but lacking something about real world common sense.
His plea that Al - whatever wasn't as bad as we have been led to believe is not plausible.
I am glad he is gone - I have no misgivings whatsoever that somehow just because I hate this adminstration with all my heart and soul that Obama is preparing a drone against me or my family. That essentially is your argument at the end. And it is quite a silly one.
Your misgivings are what are actually very dangerous. For while you dawdle on about whether this is a problem or not - more AQ operatives are looking to kill more innocent private citizens. I care much more about their lives than the single strand of hair on an AQ ops head. May they all meet their maker soon - by just about any method necessary - and learn firsthand their understanding og jihad was flawed, but that their experience of the Christian notion of hell will be all too true.
Reply to this commentLinkReport AbuseOne last thing: "An al-Qaeda convoy riding along a desert road in Yemen is a legitimate bombing target, period."
Yes, but how do you KNOW it was an Al Qaeda convoy? How do you know it isn't a civilian convoy?
For example, imagine a small town that is giving food to Al Qaeda. Are those civilians now a part of al Qaeda and now is it ok to bomb the entire town? What if some of those citizens are vocal supporters of al Qaeda? Do their arguments in support of al Qaeda subject them to the same penalty as a soldier who actually goes out and shoots at Americans?
And what if one of those civilians is also an American Citizen? This is a very grey area. And we have only assurances from the government- with no review of their evidence or the time honored chance for the accused to confront this evidence- that Awlaki had moved from "fervent supporter" to "active combatant" in the war.
Like I said, I do believe (based on my limited understanding) that Awlaki was a bad guy. But in my field, the right outcome of an algorithm does not mean the algorithm works. You need to see what happens from a lot of inputs.
So ask yourself: What if Awlaki had been a guy who cheated with a CIA agent's wife, or criticized a vindictive President. What if he happened to be a very confused guy who hated america but never actually engaged in an act of war against us?Was there anything in this process that would have stopped that missile from launching?
Reply to this commentLinkReport Abuse"So ask yourself: What if Awlaki had been a guy who cheated with a CIA agent's wife, or criticized a vindictive President."
Maybe we killed Awlaki because he opposed Obamacare? I'd better put on a helmet.
"What if he happened to be a very confused guy who hated america but never actually engaged in an act of war against us?"
If this described him, he would be a commenter on National Review's website. We are all still alive, I think.
"Was there anything in this process that would have stopped that missile from launching?"
Yes, if Awlaki didn't join AQ, help recruit terrorists to kill us and preach to them that they should kill us, then Awlaki would still be alive.
BTW, I am within a hair's breath of supporting predator strikes against the American Cancer Society.
Reply to this commentLinkReport AbuseIf he had surrendered at the U.S. Embassy in Sana'a, Yemen, and returned to the U.S. to attempt to clear his name, then Awlaki would still be alive.
As would Samir Khan, the Saudi-born American citizen who was killed in the same drone strike.
Khan was the editor of Al-Qaeda's online magazine, "Inspire", and has been quoted as saying, "It doesn't take a rocket scientist to figure out that I [am] Al Qaeda to the core."
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Reply to this commentLinkReport AbuseUnder this line of reasoning, we can't bomb anything.
For that matter, what if one of the guards in front of bin Laden's house wasn't in al Qaeda, but was just a civilian in a neighborhood watch? What if he was an American in the neighborhood watch? Clearly the SEALs recklessly risked potential American lives by not checking everyone's ID and passport before shooting.
Reply to this commentLinkReport Abuse"Yes, but how do you KNOW it was an Al Qaeda convoy? How do you know it isn't a civilian convoy?"
Uh - my guess is, they were pretty sure it wasn't a troop of Girl Scouts. That question, in this context, is not legitimate. It could be asked of any attack, on any enemy target, at any time or place. Are you suggesting that we can never attack anyone, because we can never know, for sure, that they are an enemy target? That makes absolutely no sense. Although occasional errors are made, as a general rule the guys doing the shooting know who they are shooting at.
Reply to this commentLinkReport AbuseHey Overt,
Reply to this commentLinkReport AbuseDo you have any clue as to what it takes in terms of cost of time, manpower, effort, risk(s), and actual $'s to set up and deploy a drone strike? I Do not think these are launched nilly willy for" a confused guy who hated America"
Given the Obama administration's initial self-righteousness regarding Gitmo, rendition, and other Bush plicies these assassinations (that is what they are) stand out as somewhat hypocritical. I have no problem with the killing of Awlaki but this seems to be something Obama/Holder-2008 would have howled about if Bush/Cheney had done it. (Recall that Bush brought US citizens captured in Afghanistan home for trials.)
Will AG Holder investigate this? Doubt it. Waterboarding bad. Hellfire missiles good.
Reply to this commentLinkReport AbuseHow do we know it was an AQ convoy? Has there been any proof offered to Congress, or the people, to confirm that?
And the example of France in WWII is plain silly. We were not fighting the French, per se, but their German occupiers.
I will remind those who support this unconstutional action, that you blithly give up your Fourth Amendment rights in order to exercise your freedom of movement (flying) and you say nothing. You allow the TSA to grope you, and your children, in a manner that would get any cop hauled in front of a review board for violating your 4th Amendment rights.
So now, you turn your back on the Constitutional rights of an American slug who was, although few mention it, a cleric. Did we assassinate the clerics in WWII Germany because they supported the Nazis? No.
How far are you willing to allow a man who has already shown that he has no respect for the Constitution, as written, to destroy the rest of our rights?
Reply to this commentLinkReport AbuseThe world is a better place now that this dirtbag has been introduced to his maker, but Kevin's right. Dirtbag elimination by remote control deserves far more thought and discussion than it's getting. This operation has far more in common with the rule of men than it does with the rule of law. Just because this dirtbag deserved it doesn't mean it was right. With America's southern border as porous as it is how long will it be before DHS is conducting the same operation along the border - you pick the side...
Reply to this commentLinkReport AbuseCorner Authors, this has been a great debate. But can we keep the fight clean by focusing on the real issue? Let me try to sketch out a hypothetical that should illuminate the issue:
POTUS and a team of armed U.S. operatives find themselves in a bedroom with a sleeping AQ agent who has advocated for the death of Americans, actively worked towards it, maybe even killed Americans himself. The agent has not been found guilty of treason or any charge by an American court. Can POTUS constitutionally shoot the sleeping agent in the head?
I think there is a disagreement regardless of the location of this bedroom (Yemen, or Kansas). And regardless of whether this agent could be captured without risk, there appears to be a disagreement.
So, let's stop using examples about convoys and get to the heart of the matter. Yes or no, can POTUS kill him?
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