Jonathan Wolfman wrote the following:
http://open.salon.com/blog/jlw1/2011/10/13/our_targeted_killing_of_american_al-awlaki_was_justified
My reply, as posted on his blog entry:
I am surprised at you, Jonathan, and everyone else who supports murder as a government policy.
I am not naive. My family has history in the covert world. However, what makes us different from the dictatorships of the world is that we are supposed to follow the rule of law. As far as I know, Al-Alwaki was never indicted. If indicted, he was never tried since, in America, we don't try people in absentia as far as I know. However, Al-Alwaki was convicted in the media, and executed, as guilty without ever being given a chance to face his accusers or dispute the evidence.
The specific reason that Al-Alwaki was assassinated - and there's no other word for it - rather than being captured and placed on trial is that the government - our government - didn't WANT to put him on trial. They didn't want to give him an opportunity to dispute the evidence, or call American policy or procedures into evidence.
This is the same position I took with respect to Osama Bin Latin's execution. If Seal Team Six was instructed to bring OBL back alive, they would have done so. The fact that he was dead on arrival was specifically because they were instructed to bring him back that way. The most skilled group of special operatives in the world wouldn't be stymied by a few guards with much lower skill levels.
That being said, I agree 100% with Libby's comments, but I will go one step further.
The fact that this was an American citizen raises very troubling precedents that are redolent of Nazi Germany. Guilt by association. Guilt by acclamation. Guilt by implication. The rule of law requires guilt by evidence.
We all saw and heard Al-Alwaki's treasonous statements. Does that mean we don't have to try him? Really? I don't believe anything I see or read in the media anymore because there is so much spin there's no substance left at the end of the spin cycle.
The point is this: Now that the government has assumed the right to execute citizens on foreign soil without trial, how much of a stretch is it, really, to execute citizens on American soil without trial upon the presumption of guilt.
You are a fervent supporter of free speech and yet you just applauded the execution of an American citizen for exercising the right to free speech.
Al-Alwaki has never been accused of any crime because he never actually committed any that have been proven in a court of law. He was assassinated because of the things he said....and that's terrifying to anyone who really believes in free speech.
Yes, Jonathan, I am aware of the crowded theater doctrine. It doesn't apply. Al-Alwaki might possibly have been convicted of criminal conspiracy but, the last time I checked, that wasn't a capital offense.
I am astounded by the amount of agreement with your position. Are we really so far gone that we can't see that we are the enemy we're afraid of?
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He had to be stopped from plotting and planning the kinds of killings he apparently was doing.
I guess we could have asked him to turn himself in…and sit in trial with the evidence we had in hand. I suspect that would not have worked very well.
We could also have asked military men and women to risk their lives in an attempt to capture him and bring him alive through enemy territory so that we could go through the niceties of a trial.
How many of you who oppose what happened would have volunteered for that mission? How many of you would have wanted your sons, daughters, and friends to volunteer…when the alternative used was an option?
Two sides to this story. To pretend one side has all the good…and the other all the evil is wrong-headed.
I agree with your thoughts Sage, and have been distressed at the ease with which people accept the killing as ok, both here on OS and in general, just seems shortsighted as to what we've lost.
We…(I for sure) am trying to get across that there are many considerations that go into decisions of this sort…and the alternative to the decision that was made, while seemingly more in line with what we have come to expect of ourselves, may not have been the wiser choice to make. A greater harm may have accrued by doing “the right thing.”
Yes, we are losing some things we value in the war (of sorts) on terror. I suspect we will lose a hell of a lot more before the chaos currently blistering our planet finally gets under control. It is all well and good to aspire to greatness and fairness—and to suggest that the ends never justifies the means, but if you lose the chance for even existing by demanding that those aspirations be met, it makes no sense.
I despise killing (I shoo mosquitoes rather than swatting them)…but if I, a loved one, or even a stranger were being threatened unreasonably, I might be able to take action that might result in the death of an attacker. I’d hate it, but I might do it.
You can try to reason with a nest of yellow jackets nesting on a frequently used patio or deck…but sometimes reasoning doesn’t work—and killing becomes the reasonable alternative. Some of these terror suspects are a nest of yellow jackets…and need handling.
There ARE two sides to this argument…and supposing that one side is principled and moral and the other is not is another example of trivializing the issue. It is complex and nuanced—and both sides have valid points.
If Osama bin Laden had been an American citizen and if the 3000 plus lives lost on 9/11 had been saved by taking him out the way Al-Alwaki was…in my opinion, it would have been a justifiable killing. I think a strong argument could be made that the Al-Alwaki killing is justifiable. The killing may very well have prevented a much, much greater loss of life than 9/11. I am not making the argument that it was…merely that it logically can be argued that it was.
There are, as I have said twice before now, two sides to this argument. We would do ourselves and our aspirations much more good by acknowledging that than suggesting that one side of the argument cannot be justified.
...but I'm leaving my "rate" over here
Then there's the nasty taint of bigotry to the case. If his name had been Joe Smith, I'd be willing to bet the reaction, and the debate, would be very different.
All of which misses the point that it is illegal and fundamentally un-American to kill someone who has not been convicted of any crime, whether at home or abroad. Once that constitutional safeguard is abandoned, what's the next to go?
What it boils down to, in my mind, is this: that Awlaki as an American was entitled to due process.
The memo authorizing his killing was a military risk analysis, it was not due process.
I read the other post, the rate button gets used here.
fine sounding words in state documents written by southern slave masters don't impress me, they were meant to apply to 'people like us' from the beginning.
americans are too ignorant, possibly too stupid, to know what their nation is really like, but when reality is no longer to be ignored, most are perfectly content to be cattle. they imagine they are safe if they just do as the others do.
"It would help if we knew more about the intelligence involved. I'd also like to know the extent to which he was allegedly involved in plots targeting civilians, because that's less theoretically justifiable as warfare."
I don't know what the government knows. I also don't know whether anyone in Congress has to be consulted before an order like this is issued - if, say, the Senate or House Intelligence Committee has to sign off on this, that's quite a bit different than assassination being a purely Presidential decision. Paul O'Rourke's point on Jonathan's blog has some validity - this guy was out of reach of American law enforcement while plotting against America. However, plotting how? Did the intelligence really indicate that he had an active role in feasible attempts to kill Americans in America? Was killing him necessary from a safety standpoint?
I have no idea how easy it would have been to capture him inside of Yemen; this may not be quite as simple a matter as has been portrayed here. Before I weigh in, I have too many questions. The one I think we would have access to is: Who participates in making this decision?
This is not beyond being adjudicated, so let the harmed file suit. In fact, make the legal case here, if you can. It's not as cut and dried as you claim and you'll end up tripping over the exceptions to the rule.
At best, in the end, what you have is an opinion doing battle with another opinion. The legal case, though, isn't leaning in your direction. I doubt any court in America would find in your favor.
I make all of my claims considering he did commit acts of war or harm to America. If proven he did not, then all that means nada. I said that before, somewhere, and am not calling you out, just clearing it for this forum.
Frank, I love you and your passion (I love your sister too.) But to say that my thoughts trivialize different opinions does much the same to mine. I'm offering my thoughts, others are free to differ.
Aww, boy…if you are gonna invoke Madeline, I gotta surrender. We all fear her too much to even take a chance in that direction.
Seriously, though, I love you, too, ddb.
I think my “trivializing” remark had a proper function in the argument I was making. I guess you can echo it, but what can I say?! I still say characterizing what I am saying here as “accepting the killing as OK” does not do it justice. I am merely trying (rather unsuccessfully it appears) to opine that both sides of that issue have valid arguments to raise.
Okay! I get that. And others will say the necessities of our couterterrorism imperititves suggest there are times where the niceties will not be observed. I suggest this was the case here.
The memo authorizing his killing was a military risk analysis, it was not due process.
We are in agreement here…and I am saying that a strong argument can be offered that having “military risk analysis” in this case should trump “due process” in this case.
Frank, we often ask police officers to risk their lives to bring in dangerous criminals, and no one suggests that it would be better to simply drop a bomb to decrease the risk. If we could send in a SEAL team after Bin Laden, we could have sent after Al-Alwaki.
We do not know that. I am merely talking about the possibility that we could not…at least not sanely. Kosh covered that in his remarks better than I can.
I needn’t mention that we ask police officers not to use unnecessary deadly force…but often barrackaded people get shot. It happens. Decisions have to be made.
Then there's the nasty taint of bigotry to the case. If his name had been Joe Smith, I'd be willing to bet the reaction, and the debate, would be very different.
It wouldn’t for me…and I think that is stretching it a bit, but perhaps you have a point.
All of which misses the point that it is illegal and fundamentally un-American to kill someone who has not been convicted of any crime, whether at home or abroad. Once that constitutional safeguard is abandoned, what's the next to go?
Killing people all over the place for all sorts of reasons is not un-American nor un-anything else. It happened while humans were still living in the trees—and has happened in damn near every society since then.
You are correct though that this kind of thing does threaten certain safeguards. I suspect those safeguards are unrealistic considering the dangers currently being faced. I suspect we will lose much more of them than can easily be imagined right now. The world of Mad Max is not as unrealistic as it may once have seemed.
For those who like constitutional law here are the opinions of some well known constitutional lawyers the first link is to Jonathan Turley and the second one is Glenn Greenwald, some of you may have heard of him.
http://www.informationclearinghouse.info/article29269.htm
http://www.salon.com/2011/09/30/awlaki_6/
And if that’s not good enough for you the voice of the left Paul Craig Roberts also weighs in on it:
http://www.opednews.com/articles/The-Day-America-Died-by-paul-craig-roberts-111003-824.html
What's that you say? They are all pinko fags! Okay lets see what the right has to say about it the first ones from Ron Paul the only perspective GOP candidate who anyone under 70 might actually vote for:
http://www.rumormillnews.com/cgi-bin/forum.cgi?read=217975
And my personnel favorite Kevin D. Williamson, writing in the conservative National Review online Oct. 2:
"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.... 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."
This killing was only carried out at the behest of the Globalist Multi National Corporations and those who endorse it endorse the bondage of the human race to Wall Street. And although I, just like you and Mark, Sage, am extremely disappointed at some of the people who have come out in favor of this blatant murder I am also encouraged that sanity does have ally's on the right. Never the less America march's inexorably towards Civil War and the question of whether America is to have a President or an Emperor is just one more question that will be decided on its battle fields.
If the issue were free speech, as you say, there'd be no question. Nothing I sid, for sure, mentioned or even implied this was abt that. It isn't. That is hardly what the man was targeted for. It was for a career of active involvement in active work to kill Americans. If that isn't a renouncing of citizenship, not much is.
Now that americans have become conditioned to debating the issues, after the fact has become a foregone and fatal conclusion... convenient, no?
And chilling, the ease with which a false consensus, under such circumstances, can be reached... so much easier, and much less upsetting, the view down one end of a gun barrel, rather than the opposing, other.
What would the logic be then, if the logic be universally applied, for, let's say, the reverend Pat Robertson , who openly suggested the assassination of a sitting head of state, Hugo Chávez?
Shoot first and ask questions later (?)... putting it simply, I believe, would apply strictly to cases of self defense, in which, moreover, there were imminent danger of loss of life.
And americas definition of national self defense doesn't seem to take anyone elses view or right to self defense into account.
A lot of twisting of language and logic, not to mention, the gerrymandering of statistics and physics, would have to be effected, before the act carried out upon the person of Mr. Awlaki might fit that criteria.
Which brings me to the tragic, premeditated, and systematic erosion.......... assassination of language, thought, reason and compassion for our fellow man; the language dumped like a mutilated and unidentifiable corpse on the future memory of the yet to be born, the yet to learn, without any explanation and only one side of the story, that will be with the aid of those who support this form of solving problems with absolutely no accountability, "our" legacy.
If this is the preferred logic, then it's Petronius and bacchanal... and not a shred of moralising.
I might like to add (for the edification of Mr. Wolfman) that I rate for the quality and strength of the writing, and argument, far and away better here, on this post, than over there, on his own.
"Maldito el soldado que empuña su arma contra su propio pueblo" Simón Bolívar
He was killed because he was actively recruiting potential jihadis, actively seeing information on gaps in airline security that could be used to organize bombings and other attacks, and also beginning to be involved in the operations of al Qaeda, all with the purpose of murdering American citizens. In short, he was killed because of what he was doing, not because of what he was saying, and not because he was a traitor. His killing was a military decision, well within the constitutional powers of the president to authorize, and the fact of his citizenship status did not render the president unable to take such action against him.
One can always dispute whether it was a prudent decision, but its legality has already been established. A federal judge already dismissed an appeal brought by al-Awlaki's father and the ACLU, noting in an 83-page decision that the Constitution reserves military decisions to the president and his military advisors, not to the courts.
you know I realize that my idea to boycott television for five days Oct. 25-30 got modest traction at best, but I think the fakey-fuzzy really-plastic cronyism bond Americans develop with the "personalities" on the television, the seduction of talking heads and seductive advertising to have viewers float along with a corrupt and eroding status quo, even the distracting and titillating ratings uber alles programming is part of the problem of the myopic moral stupor of the citizenry. The corporate media "manufactures consent" and spoon feeds it to us like pablum to infants, without ever encouraging critical thinking or serious values clarification, evaluation. The media over-identifies with power brokers and encourages the victims of the power brokers to also over-identify with them. The result is no national conversation on real issues, and if there are small attempts they are framed for the benefit of the power brokers. No accountability of our reps for no longer representing us. Commentary on gamesmanship only, Team Dem vs. Team Repub. Fourth estate betrayal never has been seriously called out in the past decades. That is what I wanted to do, but that is a toughie. Some people turn their backs on the tv seduction and get it. Some have the potential to begin to get it. Some are like fish in a bowl and don't comprehend the very water they breathe in and out, like tv viewers with the corporate propaganda. It is such a profound factor in American passivity!!! Alternate media cyber communication and information is helping. Is bringing truth, sometimes from foreign websites, to those of us willing to face down the terrible realities the US government has perpetrated on so many. best, libby
This is what I mean by rights divorced from reason.
Where on earth does that assertion come from?
I may think and write about how to and wanting to rob banks all I want and enjoy 1st Am. protection. As soon as Iactually rob a bank, my speech, while still protected, is largely. irrelevant.
The people here raising this issue really do have an obligation to this discussion to show precisely how this is at all abt the 1st Amendment.
Do people here really think the man was targeted bc of something (or a string of things) he said? If people believe that, well, there's hardly anything I or anyone can say, bc it's just far too distant from anything resembling the reality, which is, of course, that he was targeted for the reasons Paul, I, and others (here and at my blog earlier today) have enumerated.
We can fruitfully disagree and learn from one another as to our views abt relevant law, the president's decision and the way he made it, Congress' place in all of this. But rational people cannot carry on a discussion when they, however well-meaning, assert the core of this issue is demonstrably what it isn't.
To assert this issue is in any real manner abt Mr al-Awlaki's speech and retaliation for it is not unlike saying that the core purpose of the camps in Poland was Detention--it's just not, no matter how sincere the person who alleges it, discussable.
Encouraging others to commit terrorist acts isn't a death penalty crime. No matter how you squirm, he was executed without a trial for what amounts to criminal conspiracy.
The only thing he actually did was to talk a lot.
It has been alleged that he financed terrorist actions. Which ones, please? Enumerate them, if you will, please?
Now, prove your assertion. Show me written evidence that he was engaged in the planning or execution of a criminal act.
I don't believe you can do this because no one has produced such evidence.
I have seen portions of videotapes showing al-Alwaki harranging Muslims to rise up in jihad, but jihad, but jihad is a religious act to a devout Muslim.
All of this is arguable and it should have been argued - in a court of law - to determine the man's innocence or guilt.
The renouncement of one's citizenship is a declarative statement in a legal proceeding. Ones actions do not constitute renouncement.
More importantly, perhaps, is the fact that the only crime for which al-Alwaki could conceivably have been indicted would have been as an accessory before the fact to a violent crime, but since no one has proven al-Alwaki's complicity in the Fort Hood shootings, or any other crime, the only offense he could have been convicted of would have been criminal conspiracy, which isn't a capital offense.
Mishima's assertion that al-Alwaki' was executed because he was actively recruiting potential jihadis may be common knowlege, but common knowledge isn't conviction in a court of law.
It's not even a crime. I've checked and there's ho such law on the books as far as I can tell.
The killing of an American civilian cannot be a military decision. The American military doesn't have that right unless and until the President of the United States has declared a state of martial law.
The president, however, cannot declare martial law in the case of one individual, but that's precisely what the president has done by ordering or approving this assassination.
The federal judge who dismissed the appeal in the al-Alwaki matter has his head stuck firmly up his ass.
We are not in a state of war against Yemen, or any other national state. We have declared a war on terror. Terror is an abstraction. How can you declare war against an abstraction?
The Constitution does indeed reserve military decisions to the president - but the president doesn't have the right to declare war on American citizens simply because they may be involved in a criminal act.
So, no, there is no logical argument that supprots Mishima's arguments.
Mr. O'Rourke's reasoning is wonderfully corregated, but dificult to unravel, which doesn't however make him right.
Acts of aggression against the United States are called wars, and only nation-states can engage in war. Terrorist acts, regardless of their enormity are simply criminal acts, and terrorists are simply criminals and should be treated as such.
Should they have been treated as enemy combatants, criminals, or what?
(Should Lincoln have responded to the Army of Northern Virginia, by unleashing the Washington, D.C. Police Department and asking them to arrest them all for loitering? lol)
Seriously though, this was a major constitutional issue during the Civil War, especially in Ex Parte Merriman and Marryman. I wrote a massive 100 page paper on this issue in Law School and I think these issues have major applicability to the issues we now face in the War on Terror.
Where do they get that, Sage? Even at the most xenophobic sites I ever hunt down and try to study, I haven't seen a single statement that Al Alwaki himself, personally, ever killed anyone. American or otherwise; Muslim or not.
Oof. Well, I hope it's good for "participatory democracy" that if people are roiled up they have "freedom of expression" but I must say that an awful lot of what cyberspace presents us with as "freedom of expression" (in print, online) feels to me like mob stuff. [I don't mean organised crime.]
Thanks so much for your pm explaining about your consolidation of your for-a-time two sites, and GOOD LUCK with your new job!!
With all respect, I don't believe that you grasp the nature of the situation. The president is authorized by congress to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Al Qaeda is the organization that planned, authorized, committed, and aided the attacks on 9/11. We haven't declared war on terrorism; we've declared war on al Qaeda. Al-Awlaki was working with al Qaeda recruiting and gathering intelligence. He was also, we are told, beginning to be involved in their operations. Thus al-Awlaki is an individual against whom force can be used.
In making that determination, the president does not need a warrant or court decision. He has to power to make that determination himself. Here's an analogous situation: in WWII a few Americans returned to Germany in order to fight in the Wehrmacht against the allies. As members of the German army they could be killed, the same as any other German soldier, without a warrant or court order. The fact that they were American citizens gave them no special immunity or due process. Likewise with al-Awlaki.
"Acts of aggression against the United States are called wars, and only nation-states can engage in war. Terrorist acts, regardless of their enormity are simply criminal acts, and terrorists are simply criminals and should be treated as such."
OK, let's start there. What happens when another nation harbors, intentionally or not, a criminal who constitutes a danger to the United States? Extradition is not possible. The last time we followed this formula we ended up in a war with Afghanistan because they harbored a criminal. Following this standard, it wasn't OK to go after Al-Alwaki but it would have been fine to declare war on Yemen.
I'm not sure that constitutes an improvement. I also think Rw005g brings up an interesting point about American Civil War combatants: Were they criminals or opposing soldiers? Of course, I'm sure the British in the 1770's would have preferred to send police after Washington, Jefferson, Franklin, et al, which is what Franklin meant when he said (forgive me if I get the word order wrong here): "Either we all hang together or we most assuredly will all hang separately." Legally, they were initially criminals, not enemy combatants.
Declaring martial law only applies to the US. That has no application in this. This guy was in Yemen. (Yemen, coincidentally, did try Al in absentia and issued a capture or kill decision.) The Commander-in-Chief doesn't have to declare martial law to perform an overseas military function, citizen or otherwise. Besides, the idea of plunging America into a superfluous exercise in martial law in order to nail a combatant overseas is kind of silly. The President would simply make the declaration, none of it would happen and it would be a rhetorical exercise to make the action legal. It makes no difference or sense.
Terrorism involves acts of war. War involves acts of terrorism. Semantics doesn't make a case here. Dead Americans aren't abstractions.
There is no basis for adhering to civil procedure here and no practicality in insisting it be applied.
The downside of granting Al Alwaki immunity from sanction by dint of his unavailability for civil procedure is all an enemy need do is recruit US citizens and make prosecuting them impossible.
Treating Al as a common criminal removes him from the reach of the law you insist be applied. If tried in absentia and convicted, no matter the crime, Al cannot be brought to punishment, so it's a ceremonial exercise that protects no American or satisfies any sentence. If the civil trial with Al in the dock, facing his accusers, cannot reasonably happen, the case isn't justicable, obviously. Besides, we'd be granting him the rights he has rejected, so do we plead him non compos mentis? Are we in loco parentis? We will nurture this enemy to supposedly nurture ourselves?
But this isn't a civil trial situation. It is military and has the qualities of military, semantics or not. This isn't some ya-hoo militia group in Idaho. The question should be was military due process applied. I think that's why the Judge wisely passed on that. But even if appealed to the Supremes, the point would be, if in a civil sense, is there a question of public safety that trumps concerns about due process? Is it practical to have traditional DP applied? Is it reasonable to apply it? Yes. No. No.
None of this makes me right. It does, though, make my opinion on it more likely to prevail, no matter what path was used to reach a similar conclusion.
Perhaps the best way to avoid this happening to other US citizens is to not move overseas and join a US enemy's efforts.
BUT...the government should have to answer to this and justify their actions. The problem is there may be legitimate concerns about revealing intelligence gathering secrets, so it would be sort of held in limbo anyway. You may end up seeing the entire evidence presented to the Warren Commission first.
I think the civil war cases, while not wholly spot-on, have useful language in determining whether somebody should be treated as a criminal subject to civilian criminal law OR military law.
Only here, you can abstract the issue and apply it to the modern international situation.
I am thinking of the US occupation of Germany in the months after WW2, as well as France in 1944. Martial Law was declared in numerous towns by the US military.
When the officer corps of the US Army and Navy segregated itself into Northern and Southern armies, the Southern officers made a declarative statement of citizenship in the newly conceived Confederate States of America. In so doing, they immediately became enemy combatants rather either terrorists or criminals, and were accorded the rights of prisoners of war as they were agreed upon at the time.
Para-military brigades were treated as enemy combatants when they were aprehended by the US Military forces, but were treated as criminals and executed as such when they were aprehended by civilians, as was frequently the case in, for example, "Bloody" Kansas.
When the Confederate States seceded from the Union, they became a foreign nation, and Lincoln was quite right to confront force with force.
Para-military brigades were pursued and prosecuted for their attrocious acts, and were executed as criminals when they were captured by civilian authorities. Some US military units also executed the para militaries because they were notorious for ignoring their paroles and re-entering combat.
Also, Al Qaeda could only be considered a guerilla organization when operating in their natural sphere of influence. When they step beyond those boundaries, they become criminals or, if you prefer, terrorists.
Mishima: I actually have quite a good grasp on the legislation, and it is meaningless because US legislation only properly affects US jurisdictions. Yemen isn't under US jurisdiction. Ordinances passed in the United States do not have the force of law beyond our legal jurisdiction. The entire legal fabric created in the aftermath of 9/11 represents a severe infringement upon the American concepts of freedom and democracy as they existed before 9/11.
Your argument that any legislation can give the President the extra-legal power to make such determinations changes the status of the presidency from an elected servant of the people to the one thing that Washington himself was adamantly opposed to: Royalty.
Kings have the right to make such extra-legal determinations. Presidents do not, and legislation giving them such powers effectively raise the presidency to the level of royalty.
Your reference to the 500 or so Americans who returned to Germany to fight for the Reich is irrelevant because once they joined a foreign military, their American citizenship was immediately voided.
The only exception to this rule of which I am aware
was Col. Micky Marcus, the American general staff officer who was given leave - by act of Congress, if I recall correctly - to serve with the Israeli Army in 1948. ( I remember this because he was part of my father's crowd growing up.)
Your point about German soldiers is however pointless because they weren't American citizens any more and because they weren't being killed as American soldiers.
Unless Al-Alwaki legally renounced his American citizenship or joined the Army of a hostile nation, he was an American citizen not an enemy combatant.
You may make the case that his membership in Al Qaeda is ipso facto equivalent to enrolling in the army of a belligerent....but Al Qaeda isn't a country: its a movement. By declaring Al Qaeda the equivalent of a nation state, you imbue them with a standing they do not merit and actually enhance them in the eyes of the world.
Kosher, my friend, your logic is seriously flawed. Go back to the criminal versus belligerent argument. As criminals, under international law, we have the right of hot pursuit to engage in the apprehension of criminals on foreign soil, with the approval of that nation. IF no such treaty exists, yes, we are stymied and now the question is whether we relax or abandon the principles of international law, which is exactly what we did in the assassination of OBL, and what we have done with the smart bombing of Al-Awlaki.
I think we are now collectively convinced that it was a bad idea to invade either Iraq or Afghanistan because the long-term repercussions of those events are causing a cascade of inintended consequences, including, of course, Al Qaeda itself.
We have created these boogeymen and we continue to invest them with powers of awesomeness they don't really possess. This is a prima fascia case of fear mongering.
Paul: I absolutely do know that the evidence doesn't exist because it hasn't been atestted in a court of law. All that we have been provided with are assertions and snipets of videos.
However, the fact that Yemen actually tried Al in absentia and issued capture or kill order DOES justify the actions taken by the United States....in YEMEN....but not here.
A legal decision made in Yemen has no more force of law in the US than an US legal decision does in Yemen.
The idea that the president would simply issue an proclamation that would then make it all right is a characteristic of an imperial presidency, no a democratic presidency.
What is at stake here in this discussion isn't the fate of one man. Al-Awlaki (I know I keep misspelling his name: sue me) is dead. I am not in the least bit sorry that he's dead. In fact, I don't care one way or the other and I wouldn't have had any trouble dropping the hammer on him myself - legally.
The idea that the president can simply make a declaration and execute someone on the strength of that declaration would make our founders shudder.
Not sure what point you were trying to make here, Sage, but the fact that women are allowed to vote and and that a black man is president of the United States would probably also make our founders shudder.
Things change.
I guess you can stack the deck against yourself in the interest of principles…but that ultimately is what you are doing—stacking the deck against yourself.
If the other side is not going to abide by any rules—and if the rules are so important to you that you will not bend or break them—the other side is going to win.
Force Tiger Woods to play golf by the rules and allow me to play the game with total disregard for them…and I will take every penny he is willing to bet against me.
Never was the CSA recognized as a nation by Lincoln or by foreign powers.
They were treated as insurgents. That said, a fine legal line was developed, depending on the context in which the soldier/rebel was caught and his role where he was caught. For example, a rebel caught on the front lines at Gettysburg was treated as a combatant soldier (a legal fiction, but it was easier politically, to deal with it this way). That said, if he was operating far behind union lines, or in a border state, and acting covertly, he was treated as a guerilla.
I think alot of this, whether Mr. X should be treated as a combatant or a criminal, depends not upon citizenship, but upon the context in which they find themselves, geographically, and the actions they are engaged in at the time.
American units encountered them in the field. Many of these Germans enlisted prior to America's entry in the war and they did not foresee that they would be fighting Americans (only Russians and British soldiers). That said, I don't know how we treated them when they were captured.
The Steven Spielberg tv series, Band of Brothers, shows them being summarily executed on the battlefield, without even a court martial, which was not in conformance to US military regulation, I believe.
In the case of Micky Marcus, Israel was obvious not a belligerent adversary of the United States, but any American serving in a foreign army as an officer or non-commisioned officer automatically loses his or her citizenship by serving in that foreign army. This is why it required an act of Congress and not merely the permission of higher authority for Marcus to go to Israel to organize their defense forces. In the end, it didn't matter because he was killed by an Israeli sentry. Marcus didn't speak Hebrew and couldn't reply when challenged. The same fate that befell Andrew Jackson. He couldn't speak Ozark.
But that still leaves the CSA folks as insurgents, not enemy combatants. We treated them as combatants, but only for political expediency. This was a political hot-button issue at the time. Lincoln took a lot of flak from fellow Republicans and Radical Reconstructionists in the party, who did not want to grant former rebels "amnesty" after the war. Lincoln argued that they should be treated as enemy combatants and left to go home.
Radicals argued, with strong legal justification, that they should all be tried for treason, the generals, officers and soldiers and that there should be mass executions after the war. Legally, they were on solid footing, but Lincoln argued that this would cause massive political instability after the war and we should just forgive them and move on.
I suppose that could be true, but we aren't occupying Yemen. The thought that struck me was how easy it is to declare martial law and how much it doesn't apply anyway.
"Mr President, the drone has dropped its load"
"I declare martial law"
BOOM!
"I rescind martial law."
There wouldn't even be time to get into the issue of whether a prez can do that without Congress.
Sage,
You don't know the evidence doesn't exist and offer no proof it doesn't.
The reason I parenthetically mentioned Yemen's court decision as 'coincidental" is it has no influence here. Thanks for letting me know again, though.
You keep framing this as some arbitrary usurpation of power by the President, even going as far as declaring he acted unlawfully under the law passed by Congress. I'll reiterate--you cite the law Congress passed and then accuse the President of acting unlawfully under the law. Say what? You embellish upon that point at length, and base it on some hitherto unknown theory that any actions taken under that law are unlawful because the law itself is unlawful because it authorizes actions in countries not under American legal jurisdiction. I guess we can discuss the illegality of the Constitution itself, as it authorizes declarations of war but is silent on the idea we can only act within our "jurisdiction."
Well, surrender now, America. We can't attack any foreign targets because they aren't part of America so the law passed by Congress has no force. Declarations of war, as in WW2, were also illegal under this new theory. Unless, I guess, we limited our defense to passively waiting for attacks on our "jurisdiction."
I don't know where you got this idea, but maybe there's still time to return it for a refund.
Al Qaeda is foreign and is a power, obviously. If that citation applies to the German army, explain why not AQ.
I would think one point the US was making by going to war against the confederates is they were part of the US, therefore citizens. We weren't fighting a foreign army, we were ending an insurrection. I see Rwoo goes into detail on this, reinforcing that basic concept. Good stuff.
Fighting Al Qaeda elevates them to nation state status? In whose eyes? Perhaps their ambassador to the UN will seek a General Assembly sanction against the US. More un-ringing bell and silent whistle embellishment.
Kosh uses flawed logic?
Hair splitting, semantics and self-generated legal and constitutional theories, but not much in the way dealing with a new 4GW, asymmetrical war reality. Sophistry and solipsism to get around the direct similarities of attack and death and retribution and defense.
I think the Founders would be scratching their heads after seeing what you offer.
Indeed, the distinctions the court discusses are very useful, even outside of the context of martial law. In fact, they are very useful in the case you mention re: the Predator Drone. You don't need to declare martial law at all.
My argument is that, due to the precedents regarding insurgents laid down for us from the Civil War, we have no need to treat Al Qaeda guys as criminals, but can treat them as "insurgents" which is a middle ground grey area that is context specific.
We are basically in agreement.
For example, if Al Qaeda is holed up in an apartment in Brooklyn, plotting an attack, the context is a civilian terror attack. As such, FBI and SWAT team have jurisdiction, and local police departments. It is a criminal matter, with massive firepower being necessary to serve the papers, apprehend the felons and, if need be, bring them into custody.
If Al Qaeda (or even a radical militia group) is found in Appalachia, 200 hundred strong, armed with mortars, light artillery, stinger missiles, military weaponry, etc...then we can treat them as insurgents and blast them. No need to serve them papers. Of course, if we catch them, we can charge them later for treason and/or insurrection. But its no crime to send in a military force to squash an insurrection, as Washington did, during the Whiskey Rebellion.
If we find Al Qaeda in Yemen or Afghanistan, they are insurgents, not really enemy combatants, but we can still treat them as combatants and don't even need to serve them papers afterward, but just totally annihilate them, despite their being citizens among them. However, if this US national formally surrendered to a US embassy, then I would say that his citizenship rights would necessarily have attached and his due process would have kicked in.
For example, if he surrendered at the US embassy, and he went into US military and/or FBI custody, I don't think we would have had the right to assassinate him any more. His citizenship rights would have kicked in, and he would have had to have been treated as a criminal (albeit one who committed treason by joining a group that openly declared jihad against the US, its armed forces and civilian nationals).
My concerns are about our domestic liberties. I don't give a flying fuck how many terrorist pinpricks we incinerate. I just want it done legally.
A law passed by the US Congress empowering the President of the United States to take a certain action on foreign soil may be legal in the United States because it was an act passed by Congress, but that doesn't make it legal in Yemen, or right in the first place.
The assertion that I don't know the evidence doesn't exist is precisely the point: I don't know whether or not the evidence exists because it has never been presented in a court of law.
Under our legal system, you don't have to prove you're innocent. The prosecution has to prove your guilt....in a court of law.
An American citizen was deprived of his due process rights, and his life, under a law of questionable virtue.
And, as a matter of fact, despite your sarcasm, I absolutely agree that we should not be bombing people in foreign countries without a declaration of war against that country.
Bombing Yemen to kill Al-Alwaki was rather like burning down a house because a transient living in that house at the momment has pissed you off.
We have no right to be dropping smart bombs on civilian populations of other nations because we're afraid they might do something to us.
This is akin to my taking out my side arm and double tapping a guy who looks like the guy who might rape my sister if he ever got the chance.
We are engaged in the wholesale prosecution of innocent people based on a presumption of guilt for a very small percentage of those people.
More to the point, we have been killing people because they might do something to us.
That's illegal, immoral and unkind.
I lost close friends and family members on 9/11. One of them was a broker; another - his twin brother - was a firefighter. I am not arguing in a moral vacuum. I am arguing as a survivor, and I don't want my country to become so morally impaired that we do exactly the same things the Germans did to my people, but only do it to the Muslims instead of the Jews this time around.
This is the same argument I professed during Vietnam: I would join up the moment the Vietnamese invaded Brooklyn and fight them tooth and claw....on my own ground.
As Kosh well knows, the truth is discovered only by disputation, not by assertion. I think he would absolutely agree with me about that.
Still, and as I've said above, nothing's gained by posing ideas (as assertions) and yet that are so far from reality that they just cannot be discussed to anyone's edification. Asserting that the man was targeted for his speech is, again, like suggesting that the camps in Poland had as their chief purpose Detention of Jews. Once something like that is asserted, not much fruitful about the Nazi regiems can even be usefully discussed let alone disputed. That's a fair analogy here; the assertion that al-Alwaki was targeted for expressing his ideas in speech is abt as absurd.
As I explained to my son years ago: The bully usually isn't the guy throwing rocks, he's the one with the better aim.
You claim Yemen law doesn't apply to us, and now worry that we violate Yemeni law. Your martial law claim was also...something...still working that out.
Under our legal system, an enemy combatant can be killed under a lawful order issued by the Commander-in-Chief. You keep deleting this law because you have a unique theory of why it's not a legal law and because it's convenient to what you see as your ...logical...argument.
What follows is you dragging in off topic irrelevancies.
I feel no need to defend my logic to you, but allow me to drag in something off topic but slightly more relevant.
You wrote one post claiming the Supreme Court can decide on the constitutionality of constitutional amendments. You wrote another claiming Casey Anthony was a victim of double jeopardy because prosecutors filed more than one charge.
You were wrong in both cases, and not just a little. That was neither here nor there to me, but I did straighten you out on the amendment error, though after a day or 2, and more motivated to do so by those commentators who thanked you for educating them. I did so straight-up, simply citing the facts. You responded with the same accusation of flawed logic, which I found humorous. You should avoid the word.
I see similar guesswork-as-assertion here.
What would happen if Congress proposed and the states approved a Constitutional Amendment making Christianity the national religion of the United States and requiring that a person be a Christian in order to hold public office.
Would the previous amendment, having been enacted first, take precedence over the second, or would the second override the first.
In fact, the Constitution is silent on this issue.
Now you have TWO constitutional amendments on the books that are diametrically opposed to each other and the Supreme Court would then be placed in the position of having to decide the Constitutionality of BOTH amendments....a finding for which there is no basis in law.
No, the Court has never yet been forced to adjudicate constitutional amendments and, no, there is no provision in the Constitution that allows them to do so, but there's also no provision that prevents them from doing so.
You've tried to hedge your bet on this issue before so let's just pare down the question to the church and state issue.
There is no provision in the Constitution for supervention. There is a provision for supervention in the US Code. New laws replace old ones, but the Constitution is a procedural document, not a collection of laws. When political forces inject topical issues into the Constitution, as they have been attempting to do for most of my life, it becomes inevitable that the Court will eventually have to face this conundrum.
The Supremes rule on the Constitution as it is and have no authority to rule on the validity of amendments as they are constitutional by their very existence.
They can rule on procedural questions concerning how those amendments were passed, but not the amendment itself.
The Constitution is silent on this issue because it isn't an issue. It's not embedded in any way in the amendment process described in Article 5.
You are wrong again, and not a little. I would think this obvious, but thanks for providing additional support.
I had the same feeling. Some of us just like arguing, often to our loss of more rewarding pursuits. God, Lennon and Gandhi love us all, agree, disagree, pedigree, meritoriously, gloriously or otherwise.
I think I burned a steak while arguing the 2nd amendment on your blog. Dammit. But at least I swayed you to agreement.
I was giving your argument a contextualist interpretation.
(inside joke)
Gotcha!
hardyharhar...
It was fun. Enjoyed it.
I get that without the assumption that Al Alwaki did something bad enough to warrant assassination none of this makes sense. I can see where you were proceding from.
Sage,
Concerning my last comment: The point I was making was more practical than legal. An American citizen goes abroad and gets involved in trying to kill American civilians in cooperation with an overseas-based organization. Assuming that our intelligence gives us reasonable assurances that said citizen (or former citizen, depending on where in the law he is at any given time) is indeed responsible for these actions, we have three choices:
1. Inaction
2. Assassination
3. Invasion of host country
Assuming that he poses a big enough threat for the first option to be unwise, the best we're likely to do is 2. with the approval of the host country, which is I gather (from this discussion) what we did. As I think Paul said, the fact that Al Alwaki was an American citizen doesn't give him the right to shoot at us with impunity.
That being said, we're going to have a problem. It was illustrated by this alleged assassination attempt on the Saudi ambassador to the US by someone working for the Iranian government. In theory, the Saudi was to be targeted in a resaurant, without regard to collateral damage. That's not the biggest deal. The biggest deal is that other countries are developing drones and selling them. This may get to be common and we're setting the precedents.
We, Americans, seem to be abandoning the noble principles that have made this a country to admire, to want to live in. Freedom of speech and the right to a fair and impartial trial by a jury of our peers are just two of those principles.
"The man needed killin' " is not a justification for assassination.
This is not to say that al Awlaki's words and actions have not been treasonous, despicable, or deserving of the death penalty.
We are establishing legal precedents our enemies can use against us.
rated with love
It's astonishing how large a percentage of Americans now back the legal principle that "there's no need for a trial if we all know the sonuvabitch is guilty." Of course not everyone arrives at this knowledge of guilt the same way. In the Al-Alwaki case, the rubes know it because they heard it on Fox News, while the sophisticates know it because Bill Maher said it. But either way, they are certain beyond a reasonable doubt that the man was guilty and needed to be executed.
Kosh, buddy, you're loading the deck. There are four options: Ignore the asshole, assassinate him, launch an invasion.....or send Seal Team Six in to pick him up on an international warrant.
We just attempted to do that with OBL. It didn't end well for OBL, but at least we made the effort to apprehend, although I suspect that STS was instructed NOT to bring their man back alive.
So we attempted to apprehend a foreign national doing exactly the same things that AA was doing, but we just dropped the hammer on AA without even attempting to apprehend him.
Seal Team Six is in the business of taking on impossible jobs, and they know the risks when they sign up for the job. The people I know who were actually in STS have told me that a snatch job on AA was probably less difficult than the OBL snatch.
Since we're all calling the plays after the fact, all we have to argue about is the legality of the action, and I think that discussion has petered out except for those who haven't yet ground their axes down to the desired fineness.