That gets back to my point earlier about who can define the battlefield other than the President. Hamlet seems to believe that in any cases where it isn’t “obviously clear” the SCOTUS gets to determine where the battlefield begins and ends, or some sort of Federal court.
When I said I had some evidence that an entity other than the President gets to determine the battlefield I was indeed talking about Congress. However, historically and in the specific case of the current standing AUMF for the GWOT, Congressional approval for Presidential warmaking (whether it comes from a formal DoW or the new flavor AUMF style) isn’t ultra-specific.
I do think the Congress could have crafted the AUMF to say:
"We authorize the President to wage war against the organization that was responsible for the 9/11/01 terrorist attacks against our country. He may pursue them militarily in: Afghanistan and in Pakistan with cooperation from the sovereign government of Pakistan.
If the President wishes to attack specific targets in other countries he may do so, but he will be required to get approval from the Senate Select Committee on Intelligence prior to each incident or may apply for general permission to pursue activities in a certain region. Due to the sensitive nature of some of these operations, the specifics of these approval hearings will be classified and sealed from the public."
However, they did not do that, and because they didn’t, it gave the President wide latitude to expand the war wherever it needed to be expanded. The person to blame for that isn’t the President, though. The Congress could even pass a law saying “before the President utilizes military or intelligence resources against American citizens fighting against us who are abroad, he must get approval from some federal court (probably FISA?)” But again that is the prerogative of Congress, and they clearly chose not to take that approach.
I agree that the AUMF gives the president wide latitude. But that’s not really the issue. The issue is the constitution, not any particular law. The problem is that I don’t see any practical way of getting a court ruling on the constitutionality of the AUMF. We really must face the fact that we must depend on the integrity of the president, checked by the ability of Congress to hold him accountable. On this subject, there seems to be wide agreement in Congress within both parties that Obama operating within his constitutional authority.
Love to read it. They are obviously basing their analysis, at least in part, by relying on the laws of war. We could have guessed that. I wonder, if they also considered 5th Amendment. I’m 99% sure they did and gave Awlaki some added protections because of his nationality.
If they did not rely on the laws of war (thus meaning it’s outside a battlefield) then he must be an imminent threat. Think hostage situation. A sniper can shoot the American hostage taker in the head even though he has not been charged with a crime and even though he is “guilty” of nothing. There’s an imminent risk to civilian life, it’s ok to kill. Everyone agrees with that scenario. ACLU though says if your using that rationale to kill Awlaki, then you’re watering down “imminent” waaaay too much. In their mind, he has to literally be in the process of or moments before committing a terrorist act.
So, we know this administration uses the laws of war and a status based definition to define the battlefield (not saying that’s correct or not). This guy is clearly apart of AQAP, a group the President very likely has authority to kill under the AUMF. Most enemies only due process is to surrender. However, Awlaki is an American citizen. That should entitle him to something more. It did (they obviously sent the question around to various departments to get their legal opinions on the matter - not something done for most enemies), but we don’t know what those considerations were - obviously they were purely executive due process procedures.
My guess…a strong intelligence confirmation he was the enemy [valid status under AUMF] + a necessity to kill him now because he’s dodging capture and a real threat to American life (a merge of LOAC [war] and Human Rights/US Criminal laws [non-war law]). The last part has to deal with the area he was located; no host Gov’t control, not possible to capture without risking US/Ally lives (e.g., not Abbottabad); plus, he had planned attacks against the US and was planning more. Can’t risk US lives = necessity.
If they just took that “secret” analysis and made it public, we’d be doing better; and if they got another branch to sign off on it, we’d be doing better than that.
Can you kill an enemy soldier? (Of course) Can you torture him once detained? (Absolutely not)
Can you kill the civilian hostage taker who’s imminently threatening innocent life? (Yes) Can you threaten to kill him after he’s detained? (Absolutely not)
I don’t see problems there. The difference is the control over the situation in relation to the risk of innocent life. You should be allowed some latitude to bring the situation under control, even if it means killing before having to capture them and bring them to court. How much latitude is too much latitude is obviously undefined.
I just am amazed at the mind-numbing stupidity of the SDMB, killing someone on the battlefield is something we’ve been doing since time immemorial. Are you really going to act like you’re surprised we’re constitutionally allowed to use our military to kill enemies on the battlefield? That is why the military exists, it is designed to wage war, our constitution provides for a means to raise and command a military because the Founders envisioned that we would need to wage war. We’ve been waging war since this country began, this country was in fact born from war.
I can only assume some of you are trolling if you really think killing an enemy soldier on the battlefield is even the same topic as how to handle capture soldiers. Again, for ages people have thought it improper to summarily execute surrendering soldiers (although prior to the GC it was widely practiced), but to kill the enemy that you’re engaged with? The onus is on that enemy to surrender if they want protection, in war you are not required to go through any procedure or anything of that nature prior to pulling the trigger.
Still waiting for your definition of what the battlefield is, Martin. You know, that definition that’s so plainly obvious that you’ve based your entire argument on.
As do I. I find it mind-blowing that anyone could simultaneously think that Aulaqi was perhaps not so dangerous and also pretend to speak with some authority on counter-terrorism issues.
It seems that al-Awlaki’s right to freely associate with Al Qaeda bomb makers has also been violated in that airstrike. Link.
How can any of us be free if we risk being killed simply because we’re riding in the same vehicles as people who arm multiple suicidal bombers? What has this country become when we can’t hang out with international terrorists and murderers in remote, ungoverned Third World countries?
I know…I almost feel like America is indistinguishable from Nazi Germany these days. I mean if we live in a country that will use military force against enemies who have declared and are operating a war against us, I don’t know what’s next, but this civil libertarian shudders to think. Perhaps “reeducation camps?”
Which was made very clear by Osama bin Laden’s targeted killing. Nowhere near a “battlefield”, but living in a house in a somewhat affluent neighborhood clearly under the control of the host country whom we are not at war with. So, as long as intelligence shows the targeted person as falling under the definition listed in the AUMF (al qaeda or associates, ect.), they theoretically can be killed wherever found.
Which part? I am still amazed at how fundamentally stupid the people are in this thread, who genuinely have no idea how American history has happened or how our constitution works.
Not a single cite has ever been produced in this entire thread showing that the President has any limitations on where and how he may direct military force against an enemy. The only limitations are those that Congress put upon the Presidency (since Congress must authorize use of military force, and since they must fund operations.)
What’s that have to do with the President using military force against a military enemy who is part of an organization we are officially at war with some 8,000+ miles away from the United States?
All of Hamlet and John Mace’s points (but not MOIDALIZE’s) would be salient and worthy of consideration if we were summarily executing someone we had in our custody, or denying someone in custody of a trial, or things of that nature. Unfortunately the fundamental failure of their side is they don’t understand there really is a genuine difference between war and peace. In war, the President can use the military to kill the enemy, and he doesn’t have to holler, “Come out with yer hands up or imma shoot!” before hand.