Sunday’s report on the Obama administration’s secret legal justification for the killing of Anwar al-Awlaki shows just how dangerously confused they have become about the rules of war. All of this comes, of course, with the caveat that we are only going on secondhand descriptions of the Office of Legal Counsel opinion (and we should at least note, in passing, that this administration’s members attacked the Bush folks for not making similar national-security documents public, and have already refused to make public their legal opinions that laughably found the Libya conflict not to be a “war”).
Let’s give partial credit where it is due. Apparently the Obama administration argues that al-Awlaki was a legitimate target because he is a member of an enemy engaged in hostile conduct against the United States. At least Obama has figured out that the war on terrorism is in fact a war, and that it is not limited just to Afghanistan. We should be thankful that Obama officials have quietly put aside the arguments they made during the Bush years that any terrorist outside the Afghani battlefield was a criminal suspect who deserved his day in federal court. By my lights, I would rather the Obama folks be hypocrites in favor of protecting the national security than principled fools (which they are free to be in the faculty lounges both before and after their time in government).
But the administration’s former worldview of terrorism still infects their decisions, to the country’s detriment. According to the reports, the Obama administration believes that force could only be used against al-Awlaki because arrest was impractical and al-Awlaki posed an imminent threat of harm to the United States. This is plainly wrong. It may make for good policy, especially toward American citizens who make the mistake of joining the enemy, but there is no legal reason why a nation at war must try to apprehend an enemy instead of shooting at him first. Every member of the enemy armed forces and leadership is a legitimate target in wartime, regardless of whether they can be caught or whether they pose an imminent threat. In fact, the Obama administration continues to confuse war with crime — the idea that you must try to arrest first and can only use force against an imminent attack is the standard that applies to the police, not the military.
Think of the operation to kill Admiral Yamamoto in World War II. He was well behind the lines, flying from one military base to another. He didn’t pose an “imminent” threat of attack on the United States at that moment. The United States did not need to ask whether it could have forced Yamamoto’s plane down first and captured him. It was allowed to kill him, just as it could kill any other member of the Japanese military, regardless of his threat.
It may be that the Obama administration thinks that U.S. citizens who join the enemy are entitled to special rules — like those that apply to the police, instead of those that apply to the military. But this would be wrong too. As I explained in the Wall Street Journal last week, ever since the Civil War, our national leaders and the Supreme Court have agreed that a citizen who joins the enemy must suffer the consequences of his belligerency, with the same status as that of an alien enemy. Think of the incentives that the strange Obama hybrid rule creates. Our al-Qaeda enemy will want to recruit American agents, who will benefit from criminal-justice rules that give them advantages in carrying out operations against us (like the right to remain silent, to Miranda and lawyers, to a speedy jury trial, etc.). Our troops and agents in the field may well hesitate in the field, as they will not be able to tell in the heat of the moment whether an enemy is American or not. Obama still remains trapped by his liberal pieties, and those biases will reduce the reach of American arms and bless the enemy with undeserved advantages.
— John Yoo is a law professor at the University of California, Berkeley and author of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.
Professor Yoo
Reply to this commentLinkReport AbuseYou must feel real bad for the Obama administration to have had so much success against Al Quaeda without besmirching our honor by resorting to torture. Hope you sleep real well at night.
Wrong.
The Obama administration has confirmed that it would do "whatever it takes" to find out information in exigent circumstances. That is, it has endorsed "torture," as you call it.
They endorse "torture" as necessary, just as Nancy Pelosi did when she was briefed on coercive interrogation techniques early in the War on Terror.
We know what they are. Now we are just haggling over the price.
And the Admin has not closed Gitmo--as it promised to do--and is not treating detainees as the Geneva convention(s) require legal POWs to be treated. (And they are right not to do so.)
The difference between this Admin and the last one is that the last one did not feel the need to talk out of both sides of its mouth.
Reply to this commentLinkReport AbuseSorry Job -- our current enemies don't fall under the Geneva Convention. What kind of warmed-over 60s-rad-chic argument is that? These guys don't wear uniforms, are stateless, hide in schools and hospitals, etc etc.
And thank you, Prof Yoo, for your willingness to speak and write on these dangerous topics; we saw too little of that in the GWB admin, IMHO.
Reply to this commentLinkReport Abuse"Hope you sleep real well at night."
I know I do thanks to people like Mr. Yoo.
And my honor remains unsmirched (?!) -- at least as far as this subject goes.
Reply to this commentLinkReport AbuseWell if Bill Clinton had done his job as CiC and hunted down and KILLED OBL and the rest of Al Queda instead of chasing interns around the Oval Office none of this would have happened.
Reply to this commentLinkReport AbuseJust to make clear. The US has never directed torture. Waterboarding is not torture because we do it to our own servicemen as part of their training. It causes no permanent damage.
That you have to lie shows how bad is your position. You only can logically make your point if you lie, and then only if suborned perjury is admitted.
shame on you.
Reply to this commentLinkReport Abuse----- Waterboarding is not torture because we do it to our own servicemen as part of their training.-----
this is not brilliance, Don.
some of our servicemen get accidentally killed while training. Since it's our own servicemen, therefore they're not really dead?
Reply to this commentLinkReport AbuseSure they're dead -- but they haven't been murdered. First degree murder requires an unlawful intent. An unlawful enemy combatants exposed to aggressive interrogation hasn't been "tortured" because under the "torture" statute, "torture" requires a specific intent. Here there was only a general intent to cause pain. The specific intent was to obtain vital information. This specific intent requirement is express in the statute and is the definition of torture that the DOJ recently used in the case of the John Demanjuk, the Ukrainian American auto worker who was deported when it was found he had been an SS guard at a concentration camp. He claimed he would be tortured by the trip.
Reply to this commentLinkReport AbuseSalubrius,
you best define what you mean by "torture statute' and specific intent, because as long as somebody in authority did and meant to do something that resulted in a prisoner suffering from perceiving himself to be under the threat of imminent death, the agent tortured the prisoner under federal law.
External Link
and pouring water into a bound and helpless prisoner so that he can't draw breath is considered just that under federal law and has resulted in state law enforcement personnel to get 10 years in federal prison.
Reply to this commentLinkReport AbuseOutside Yoo's fantasies, how has Obama been the least bit hypocritical?
The claims that Obama ever (1) believed al Qaeda to be limited to Afghanistan or (2) thought that military force should not be used against al Qaeda outside Afghanistan are both ignorant and laughable.
Does Yoo not remember that during the 2008 elections, it was Obama who suggested we used military force against al Qaeda in Pakistan if they were shown to be operating there and McCain and the rest of the neocons who called this approach naive and ignorant because Pakistan is our ally (ha!)
Reply to this commentLinkReport AbuseProfessor Yoo,
I think the comparison to Admiral Yamamoto is a bad one. Yamamoto was a uniformed officer of a nation we were at war with, and not a U.S. citizen.
A better comparison would be John Walker Lindh. Although captured on the battlefield and armed, Lindh, a U.S. citizen, was returned to the U.S. and given due process, as outlined in our Constitution. Our soldiers did not kill him on the spot.
We have seen an erosion of our Constitutional rights, a clear example being the violation of our 4th Amendment rights just for trying to exercise our right to freedom of movement (travel). TSA agents are shoving their hands down the pants of small children, and harrassing old women all in the name of "security."
The Fifth Amendment of the Constitution is clear. "No person (citizen) shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." Even the most henious of criminals, those who have terrorized thousands, such as serial murderers, have been given due process.
The Constitution cannot, should not, be twisted to what ever the President of the United States wants it to be, just because the Constitution might be inconvenient at the time. What happens if a person, or group of people, are determined by the President to be a national security threat? Is he then allowed to bend the Constitution by sending a hellfire missile to take them out? Do our Constitutional rights end at the water's edge?
Justifying the assassination of al Awlaki by saying he was not entitled to his rights as a citizen of the U.S. is a very slippery slope. A slope that can lead to the violation of other Constitutionally guaranteed rights of U.S. citizens. At no time in our history has the President ever ordered the assassination of a U.S. citizen.
I would remind you that the most notorious traitor of all times, Benadict Arnold, could have been assassinated by President Washington at any time by simply sending someone to England to do the job. Washington did not do that. Nor did FDR deny the U.S. citizen who joined the Nazi army, and slid onto our shores as a subversive with terrorism in mind, have him just killed. The traitor was given a military tribunal, and then summarily executed, but he received due process.
Perhaps you can explain to me why Nidal Hassan, who personally murdered 13 Americans in the name of the Islamic jihad (war) against the U.S., using this newly found Presidental authority, isn't just taken out and shot? It is because Hassan is a U.S. citizen, entitled to due process whether we like it or not.
The U.S. Constitution is not always convenient. But it is the foundation on which this house (nation) is built. When we allow that foundation to erode out of convenience, the house will eventually fall.
Reply to this commentLinkReport Abuse"Our soldiers did not kill him on the spot."
And why didn't our forces kill Lindh "on the spot"? It certainly wasn't because he was an American. In fact, they had no idea he was an American until after he was taken into custody.
We didn't didn't retire Mr. Lindh because he surrendered while retreating, and the laws of armed conflict that we follow, forbid us from killing combatants - lawful or unlawful - who are in the process of unambiguous surrender. That's it. Had Mr. al Awaki walked up to a US consulate or an American patrol waiving a white flag, he'd be very much alive today. How about that?
Moreover, the analogy to Benedict Arnold is without merit. Arnold, while a traitor, was not in command of enemy troops. The same cannot be said for al Awaki - a man who was very much a central command & control element of an opposition force. He, by any definition found in the laws of armed conflict, was a lawful combat target - irrespective of where he may have been found. When you command forces who are sworn to destroy America - as well as a force that is recognized by Congressional decree as a clear & present danger to the US - you cannot be surprised when, at some point, American ordnance rains down on your head, irrespective of the passport you may or may not carry.
Had Arnold been confronted while leading British soldiers in their assault against Richmond, I promise you no one would have thought twice about taking his life, including his former friend and mentor, George Washington.
"Justifying the assassination of al Awlaki by saying he was not entitled to his rights as a citizen of the U.S. is a very slippery slope"
No, it's not a "slippery slope". In fact, it's anything but slippery. It's quite firm. If you plan operations for an American enemy (which by any definition, al Queada clearly is) and/or disseminate those plans as commands to enemy combatants, then you are acting as a command authority and are, again by any defition, a lawful target.
"Perhaps you can explain to me why Nidal Hassan, who personally murdered 13 Americans in the name of the Islamic jihad (war) against the U.S., using this newly found Presidental authority, isn't just taken out and shot?"
Because HE IS A PRISONER. Is this point lost on you. Nidal, traitor or not, was wounded and subsequent to that wounding, taken into custody and treated - as we treat ANY combatant, lawful or unlawful, when they fall into our custody while wounded.
We also don't shoot prisoners, American or otherwise, absent some kind of due process.
"Nor did FDR deny the U.S. citizen who joined the Nazi army, and slid onto our shores as a subversive with terrorism in mind, have him just killed."
FDR had NO IDEA that there were Americans aboard those U-boats that inserted espionage teams onto American soil. In fact, FDR didn't even know about those U-boats, to say nothing of their cargo. But, if the OSS had uncovered the plan - including the involvement of American nationals acting as traitors - and the whereabouts of those two U-Boats, surely you aren't suggesting that FDR wouldn't have been well-within his authority as Command-in-Chief to order the sinking, and probably death, of everyone aboard those ships, including the American traitors, are you?
Your arguments are absurd and specious.
Reply to this commentLinkReport AbuseOops, that should have been..
"Arnold, while a traitor, was not in command of enemy troops when we had the opportunity to kill or capture him..."
Arnold, clearly was in command of enemy troops, but only after his "defection", and after his defection, we never were able to get our hands on him - although Washington tried on at least one occasion to do just that. Sorry for the confusion.
Reply to this commentLinkReport AbuseI disagree that John Walker Lindh is a good comparsion. A good comparison is any of the many thousands of Conferate soldiers killed during the Civil War (which Prof Yoo alludes to).
Even though those soldiers (and Confederate spies) considered they were citizens of a new nation, they still held US citizenship. But nothing in the constitution prevented killing them, nor should it have.
I completely fail to see where this is either new or a slippery slope. Taking up arms against the US in the name of a hostile foreign power is an unambiguous act. The precedents for dealing with it are 150 years old.
BTW: Why don't you ask Perry how he will deal with this situation, should he become President?
Reply to this commentLinkReport AbuseWhy do you want to rehash the Civil War? Those Confederate soldiers believed they were leaving a nation that had "become necessary for one People to dissolve the Political Bands which have connected them with another."
Lincoln said: "Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much territory as they inhabit."
So you try to argue that although the Confederates considered themselves part of a new formed nation, they were still considered "citizens" of the U.S. by the existing U.S. federal goverment? Does that mean that you also understand that al Awlaki was still "considered" a citizen of the U.S. with all the Constitutional protections guaranteed to a U.S. citizen?
And if you were paying attention, you would know that Rick Perry has already given his opinion on the killing of al Awlaki.
Do try to stay informed.
Reply to this commentLinkReport Abuse"The difference between this Admin and the last one is that the last one did not feel the need to talk out of both sides of its mouth."
Things we know about the last administration:
1) W claimed repeatedly and outright that they never tortured anyone
2) W and Cheney claimed that it was necessary in a ticking time-bomb situation to do whatever was necessary to get information out of a terrorist
3) They waterboarded KSM 183 times
Well, let me ask you this:
Reply to this commentLinkReport Abuse1) If there was a ticking time-bomb scenario, then could one consider a technique that required 183 applications "effective?"
2) If there was a ticking time bomb scenario with KSM, why didn't W authorize a technique that broke him more effectively than waterboarding? (yet again, 183 times - the bomb could have gone off way before time number 10).
3) If there was no ticking time-bomb, what was their justification for waterboarding at all?
4) If your claim is that there are certain things that we should never do to any enemy in the way of torture, and that's why W didn't authorize it - then the only difference between Obama and W is where they draw that line (W believes waterboarding isn't torture, Obama does). How is that not a fair difference of opinion? Wouldn't someone who would be open to using the rack on a detainee view W as just as weak as you view Obama for not condoning waterboarding?
5) How is it not talking outside of both sides of your mouth to criticize Obama for not doing what you yourself wouldn't do?
I think the comparison to Yamamoto is a good one. Al-awaki is a "non state" combatant whose "uniform" is whatever he happened to put on that morning.
Further, our military would have been perfectly within their rights (and acting entirely within the "rules of war") to summarily execute John Walker Lindh.
Reply to this commentLinkReport AbuseThe argument that our constitution will make our troops think twice in a live firefight lest they harm a citizen is ludicrous. Awlaki was not an accidental casualty in a random firefight, he was sought out and targeted for killing in a months-long operation.
And the idea that al-Qaeda could take advantage of our respect for law by staffing up with American citizens is a fantasy. When has any foreign enemy of the US been led or staffed in key areas by Americans? Even Mexican drug gangs aren't exploiting this supposed due process "loophole". There's a reason _enemies_ of the US do not have an easy time recruiting American citizens.
Reply to this commentLinkReport AbuseOf course terrorists that are or were American citizens are fair targets. Terrorists are like Pirates, because of their affiliation to a non-state actor, they have become an enemy of all the world. Pirates who were US citizens or residents can be shot down or hung from a yardarm, as convenient, after any military commission finding that they are in fact a terrorist (or a pirate).
Reply to this commentLinkReport AbuseSo you reckon General Grant should have first tried to arrest Confederate soldiers and bring them to trial in Federal Court?
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