Al-Awlaki Killed

[Ravenman]

@Hamlet

“And so I agree with my brother FRANKFURTER that, in view of Ross and the Insular Cases, we have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is “due” a defendant in the particular circumstances of a particular case.”

and

“So far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases, the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial where the judge and trier of fact are not responsive to the command of the convening authority.”

Let’s compare and contrast the fact surrounding Reid and al-Awlaki:

Reid: wife of a US servicemember; al-Awlaki: member of a designated terrorist organization
R: taken into police custody after murdering her husband; aA: traveling in a convoy with Al Qaeda leaders in a remote country
R: the government sought to prosecute her under the Uniform Code of Military Justice; aA: the government sought to attack him as a combatant in accordance with the laws of war and the AUMF
R: was in Britain, a country with a status of forces agreement with the US; aA: in an ungoverned part of Yemen

These situations are as similar as chalk and cheese. Had there been a raid which resulted in the capture of al-Awlaki by the FBI or something, then the question of what rights he may have would be completely different. But trying to apply a ruling which deals with a person in US custody facing charges of murdering her husband in a time of peace on a US military installation has no value whatsoever in drawing conclusions with what the government may do to a combatant in a barely-governed country half a world away during a time of war. It’s just stupid to pretend that the cases are in any way analogous.

In Quirin, the President didn’t order the targeted killling of the “unlawful combatant” without trial, he tried them in military commission, they were given habeas rights and allowed to appeal, and THEN killed by the military. That’s not what happened to Al Awlaki.

I agree. Quirin is not a glass slipper that fits perfectly on al-Awlaki’s foot. However, unlike Reid, Quirin actually deals with the issue of US citizens who are combatants… the main difference being, as you state, that the Nazi saboteurs were inside the United States and apprehended, aA was on the loose and outside the country.

The instructive part of Quirin is also that, after all is said and done, even though Herbert Haupt was a US citizen, the Court did not rule that as a citizen he was entitled to more judicial protections than the other saboteurs. His execution was not stayed or a new trial reordered separate from the Germans. In essence, the court said that even though he was a citizen, he had thrown his lot in with the enemy, and he wasn’t entitled to special treatment.

If foreign combatants may be attacked by the military under a type of “due process” that is non-judicial in nature (i.e., military authorities must be acting under legal orders, complying with the laws of war, attacking the targets in a reasonable and lawful manner, etc.), I think Quirin would indicate that US citizens who have thrown in with the enemy are afforded identical “due process.”

After all, if US and foreign citizens who are enemy combatants may be subjected to identical legal procedures while in US custody inside the US, why would US citizens be given MORE protections than their foreign enemy compatriots while overseas and in a zone of hostilities? That makes no sense at all.

[Ravenman]

@Hamlet

Do you see the irony? He’s an “enemy combatant” because the President said, without review, that he’s an enemy combatant. Call him an enemy combatant to take away his rights as a citizen so you can kill him without violating the constitution. It’s completely circular. We can’t kill you without due process because you’re a citizen, so we’ll call you an enemy combatant and poof, now we get to kill you.

It isn’t ironic. It’s laughable because you still do not seem to understand that Congress, in exercising its Art I Sec 8 war powers, passed a completely constitutional measure which said that if you’re in Al Qaeda, you are an enemy that can be attacked. It isn’t like the President just one day invented the idea that he can attack people he believes are Al Qaeda agents; the Congress instructed him to do so with a combined vote of 518 to 1.

[John_Mace]

@Martin_Hyde

He was given the same due process as any al-Qaeda leader hiding in an area where they are only accessible by military force.

He’s the only US citizen in that category. And just because it was “the same” doesn’t mean it was “enough”. Point being, we don’t know what due process he was given.

[Hamlet]

@Ravenman

Let’s compare and contrast the fact surrounding Reid and al-Awlaki:

Oddly enough, both Charles Manson and Sister Prejean are entitled to the same Constitutional protections. Reid’s interpretation of the Constitution holds whether the citizen is a saint or a sinner. The fact that the President has declared someone an enemy combatant doesn’t magically undo the Constitution.

@Ravenman

I agree. Quirin is not a glass slipper that fits perfectly on al-Awlaki’s foot. However, unlike Reid, Quirin actually deals with the issue of US citizens who are combatants… the main difference being, as you state, that the Nazi saboteurs were inside the United States and apprehended, aA was on the loose and outside the country.

The instructive part of Quirin is also that, after all is said and done, even though Herbert Haupt was a US citizen, the Court did not rule that as a citizen he was entitled to more judicial protections than the other saboteurs. His execution was not stayed or a new trial reordered separate from the Germans. In essence, the court said that even though he was a citizen, he had thrown his lot in with the enemy, and he wasn’t entitled to special treatment.

The other Nazi saboteurs were given more protections than you wish to give Al Awlaki, a US citizen. That’s the comparison to make, not Haupt v. other saboteurs, but rather Al Awlaki v. all the people in Quirin. Being on US soil, the people in Quirin were given due process. Al Awlaki, as a US citizen, should be afforded the same. Your comparing the wrong things.

[Hamlet]

@Ravenman

It isn’t ironic.

Ironic was the wrong word. Circular is the better one. We can’t kill you without due process because you’re a citizen, so we’ll call you an enemy combatant (without trial) and poof, now we get to kill you. That’s not how the Constitution or terminating citizenship works.

[CoolHandCox]

@Hamlet

Do you see the irony? He’s an “enemy combatant” because the President said, without review, that he’s an enemy combatant. Call him an enemy combatant to take away his rights as a citizen so you can kill him without violating the constitution. It’s completely circular. We can’t kill you without due process because you’re a citizen, so we’ll call you an enemy combatant and poof, now we get to kill you.

…

That’s how it works under the AUMF until Congress/Judiciary says it doesn’t. I think there should be some type of other branch review for these types of killings, but there is not.

And I never said calling him a combatant takes away his rights as a citizen. I’m just drawing a distinction that a US citizen abroad can have different constitutional protections based on whether that citizen is a civilian or combatant. Civilian = more; Combatant = less.

[Ravenman]

@Hamlet

Oddly enough, both Charles Manson and Sister Prejean are entitled to the same Constitutional protections.

Is either of them a member of an organization which Congress has declared war on? Are either of them in a foreign country? No? Then they have nothing to do with this issue.

The other Nazi saboteurs were given more protections than you wish to give Al Awlaki, a US citizen. That’s the comparison to make, not Haupt v. other saboteurs, but rather Al Awlaki v. all the people in Quirin. Being on US soil, the people in Quirin were given due process. Al Awlaki, as a US citizen, should be afforded the same. Your comparing the wrong things.

Yes. They were on US soil. They were also in the custody of the government. Those are the differences.

I notice you have avoided commenting directly on the fact that the Supreme Court unanimously decided that enemy combatants may be treated to the same legal procedures, regardless of citizenship. If combatants are subject to the same “due process” in a time of war, it follows that a US citizen combatant has no more, and no fewer, legal rights than a foreign combatant when they are at large outside the United States.

[Ravenman]

@Hamlet

Ironic was the wrong word. Circular is the better one. We can’t kill you without due process because you’re a citizen, so we’ll call you an enemy combatant (without trial) and poof, now we get to kill you. That’s not how the Constitution or terminating citizenship works.

You’re so full of straw men you ought to be a corn field.

[Hamlet]

@CoolHandCox

That’s how it works under the AUMF until Congress/Judiciary says it doesn’t.

They did. Calling Hamdi and Padilla “enemy combatants” didn’t divest them of their rights under the Constitution.

@CoolHandCox

I think there should be some type of other branch review for these types of killings, but there is not.

We agree, there should be. This President should have done the right thing and set up a system that meets the requirements of due process before killing him.

@CoolHandCox

And I never said calling him a combatant takes away his rights as a citizen. I’m just drawing a distinction that a US citizen abroad can have different constitutional protections based on whether that citizen is a civilian or combatant. Civilian = more; Combatant = less.

And, again, the difference between a civilian and a combatant is an unreviewed determination made the President that may not meet the strictures of due process. You can’t change the protections of the Constitution just by calling someone an enemy.

[Hamlet]

@Ravenman

Is either of them a member of an organization which Congress has declared war on? Are either of them in a foreign country? No? Then they have nothing to do with this issue.

Again, I’m not comparing them to Al Awlaki, but to each other. The Constitution doesn’t care if you’re a bad guy or a good guy, you’re entitled to those protections.

@Ravenman

I notice you have avoided commenting directly on the fact that the Supreme Court unanimously decided that enemy combatants may be treated to the same legal procedures, regardless of citizenship. If combatants are subject to the same “due process” in a time of war, it follows that a US citizen combatant has no more, and no fewer, legal rights than a foreign combatant when they are at large outside the United States.

No, that does not follow at all. You WANT it to follow, but it doesn’t. All the persons in Quirin were given due process, so the difference in citizenship was irrelevant. With Al Awlaki, his citizenship is certainly relevant to the level of protections. We agree that foreign enemy combatants in foreign theaters are not entitled to Constitutional protections. It simply doesn’t follow that therefore US citizens enemy combatants are not entitled either.

[CoolHandCox]

@Hamlet

They did. Calling Hamdi and Padilla “enemy combatants” didn’t divest them of their rights under the Constitution. We agree, there should be. This President should have done the right thing and set up a system that meets the requirements of due process before killing him. And, again, the difference between a civilian and a combatant is an unreviewed determination made the President that may not meet the strictures of due process.

Didn’t divest Hamdi and Padilla of their rights under the constitution after they were taken into custody. That’s the really big elephant in the room here and I’m not clear if you appreciate that point or not.

Do you think they could not have been killed before the tactical/policy decision to detain them? If you’re saying “due process” means you have to detain them because they are US citizens, then I do not agree with you; nor do I agree that is what those cases stand for.

You can’t change the protections of the Constitution just by calling someone an enemy.

Yes you can. If by saying “calling someone” you mean making a determination based on intelligence and applying it to the definition of the enemy set out in the AUMF. Congress granted the President the power to do just that. The SC has not said there is anything wrong with that (killing this type of “enemy”). So that’s it.

[Hamlet]

@CoolHandCox

Didn’t divest Hamdi and Padilla of their rights under the constitution after they were taken into custody. That’s the really big elephant in the room here and I’m not clear if you appreciate that point or not.

It is certainly a point we disagree on. I do not see the Constitutional requirement of due process changing based on whether someone is in custody or not. Perhaps in a determination of how much process is due, but not in whether any due process is due.

@CoolHandCox

Do you think they could not have been killed before the tactical/policy decision to detain them? If you’re saying “due process” means you have to detain them because they are US citizens, then I do not agree with you; nor do I agree that is what those cases stand for.

Those cases don’t deal with whether or not they can be summarily executed if caught on the battlefield. Do you maintain they could have killed Padilla as he got off the plane in Chicago?

@CoolHandCox

Yes you can. If by saying “calling someone” you mean making a determination based on intelligence and applying it to the definition of the enemy set out in the AUMF. Congress granted the President the power to do just that. The SC has not said there is anything wrong with that (killing this type of “enemy”). So that’s it.

And we’re back to the killing is less a violation than detention.

I do think we’ve outlined where we differ. The definition of battlefield, the import of custody, and killing v. detention without trial. Fair enough.

By the way, thanks for not resorting to the rhetorical flourishes of some of the other posters here. I respect that.

[CoolHandCox]

@Hamlet

It is certainly a point we disagree on. I do not see the Constitutional requirement of due process changing based on whether someone is in custody or not. Perhaps in a determination of how much process is due, but not in whether any due process is due.

I think when someone is trying to kill you, they get less due process. When they are in custody, and their ability to kill you is removed, things change. Admittedly, this is a very basic and simple analysis, but that’s how my “core” sees it.

Those cases don’t deal with whether or not they can be summarily executed if caught on the battlefield. Do you maintain they could have killed Padilla as he got off the plane in Chicago?

It’s an assumption that combatants can be killed in war. I’m not even sure it’s written down in any convention, but it’s obviously a core principle of making war.

I do not think they could have shot Padilla as he got off the plane in Chicago. Assuming he was not a threat to nearby civilians, we must try and detain/capture him. In Chicago, that’s actually very feasible. In ungoverned Yemen, it’s not.

And we’re back to the killing is less a violation than detention.

I do think we’ve outlined where we differ. The definition of battlefield, the import of custody, and killing v. detention without trial. Fair enough.

As long as the killing doesn’t violate Hague, then it’s just something you can do in a war to the enemy. For the record, I believe Yemen tried to capture Awlaki for years and offered him opportunities to surrender. Neither happened. If the US really believes this guy is acting in an operational capacity to try and kill US civilians, you got to kill him when the opportunity presents itself to you. Or detain him, you can do either. We chose to kill because capture was not feasible.

By the way, thanks for not resorting to the rhetorical flourishes of some of the other posters here. I respect that.

I was literally going to say the same thing. It’s refreshing. I think we’ve run our course, though. However, I will say that I now believe US enemy combatants should get more pre-detention due process than foreign enemy combatants. E.g., I don’t think you could switch bin laden with Awlaki and have that mission/targeted killing still be legal. The difference is location and ability to capture.

[John_Mace]

@CoolHandCox

t’s an assumption that combatants can be killed in war. I’m not even sure it’s written down in any convention, but it’s obviously a core principle of making war.

No one disputes that. The issue is how the person is declared an “enemy combatant”. I’m not seeing that the constitution authorizes the president to do that solo.

I have not doubt that we could establish a judicial “due process” that would put a check on the president, but that would easily get us to the same decision in this particular instance.

[CoolHandCox]

@John_Mace

No one disputes that. The issue is how the person is declared an “enemy combatant”. I’m not seeing that the constitution authorizes the president to do that solo.

I have not doubt that we could establish a judicial “due process” that would put a check on the president, but that would easily get us to the same decision in this particular instance.

The President is the Commander in Chief of the military (we’ll leave CIA complications out of it for now - but still, they also fall under the Executive). Further, Congress granted him the power to do so in this war (AUMF) and loosely identified the enemy. Congress also has constitutional war making powers. They could have more narrowly defined the enemy (only foreigners), ect., but they did not.

[Hamlet]

@CoolHandCox

I do not think they could have shot Padilla as he got off the plane in Chicago. Assuming he was not a threat to nearby civilians, we must try and detain/capture him. In Chicago, that’s actually very feasible. In ungoverned Yemen, it’s not.

And, again, while “ability to capture” may be of import in determining what process is due, I have yet to see a court case where it means there doesn’t have to be any due process. It seems you were arguing that once you’re determined to be an enemy combatant, you can be killed no matter where you are or what you’re doing. Thanks for the clarification.

@CoolHandCox

I was literally going to say the same thing. It’s refreshing. I think we’ve run our course, though. However, I will say that I now believe US enemy combatants should get more pre-detention due process than foreign enemy combatants. E.g., I don’t think you could switch bin laden with Awlaki and have that mission/targeted killing still be legal. The difference is location and ability to capture.

Thanks for making some very good points. I think we’d both be a lot more comfortable knowing what process was given, and even more comfortable with a hearing/lawyer/magistrate determination before killing.

[gonzomax]

http://en.wikipedia.org/wiki/List_of_designated_terrorist_organizations
Here’s our official list of terrorist organizations. They are in lots of countries including the US. I suppose we can justify sending drones into all these places too. They will just have to learn to like it.

[CoolHandCox]

@Hamlet

And, again, while “ability to capture” may be of import in determining what process is due, I have yet to see a court case where it means there doesn’t have to be any due process. It seems you were arguing that once you’re determined to be an enemy combatant, you can be killed no matter where you are or what you’re doing. Thanks for the clarification.

I’m not sure there are any court cases - but I’d love to read some.

I’m pretty sure I was arguing an enemy combatant can be killed wherever found. I now think a distinction needs to be made for US citizens (some added layer of “necessity” needs to be considered). I have no problems contradicting myself as I continually work stuff out in my head.

Having said that, he was given due process (from what I can gather, every “important” executive agency (DOJ, State, CIA, ect) signed off on it. That’s some due process, even though it’s all coming from one branch.

Thanks for making some very good points. I think we’d both be a lot more comfortable knowing what process was given, and even more comfortable with a hearing/lawyer/magistrate determination before killing.

Yes. For instance, we don’t know what would have happened if, say, the State Dep’t said you can’t do this, but the DOJ said you could. What’s the process? Is that even enough (coming from one branch, albeit with Congressional approval).

Of course, I wouldn’t mind a lot of the evidence being kept secret; or at least I can understand why you need it to be. If you’re going to play the game, I think it’s a necessary evil.

For instance, in this case. The CIA/British intel (whomever) hacked into some email accounts - they had to dig through 8 layers of heavy encryption. Hypothetically, when you make those emails public (or even the knowledge you can read them), you make public your ability to hack into their emails - emails the enemy might think you cannot read. They obviously will change their encryption and you lose valuable future intelligence. To me that’s shooting yourself in the foot.

[Ravenman]

@Hamlet

And, again, while “ability to capture” may be of import in determining what process is due, I have yet to see a court case where it means there doesn’t have to be any due process.

How many court cases have you seen that rule on the means by which the executive carries out the use of military force for a war authorized by the legislative?

As far as I’m concerned, you’re saying that the absence of something that does not exist proves that something must exist.

But since we are repeating ourselves here, let me change the conversation. The father of al-Awlaki sued for an injunction to stop the government from targeting his son. His case, of course, was basically thrown out. The reasons for the dismissal of the suit is twofold: one, that his father did not have standing; two, that the question is “judicially unreviewable” and is “constitutionally committed to the political branches.”

So, if you are correct that al-Awlaki was unconstitutionally killed, there is sure to be another court case. Shall we make a bet on how that case ends up being determined? Because I’m completely sure that the final ruling will end up looking almost exactly like that ruling.

What do you say? Want to make a friendly wager on what the courts may decide on this issue?

[Martin_Hyde]

@masterbeta

There is no such thing as a presumption of power in the Constitution, all powers of the federal govt are enumerated expressly. There is however a presumption of liberty as the 9th amendment proves.

So the burden is on you to prove:

1. Al-Awlaki was not amenable to 5th amendment rights
2. The President has the Constitutional power to kill him

And the enumerated power that allowed us to kill al-Awlaki was the President’s power as Commander-in-Chief, the power to wage war. The 5th Amendment does not apply to people who are waging war against you, anymore than it applies to civilians who are shooting at the police. They are 100% the exact same concept. The 5th Amendment doesn’t go away when I start shooting at the police, but I sure as hell have no right that protects me from the police shooting back in such a situation, nor did al-Awlaki.

Once again.. burden is always on you to prove there are no such limitations on Presidential war making power. Don’t try to pretend the burden is reversed just because no specific case on a point can be found.

Absolutely not, because the Constitution explicitly states the President is Commander-in-Chief, unless you can find any evidence from law or history to suggest that the President has ever been required to give an enemy combatant “due process” you’re talking out of your ass. You are literally trying to rewrite history and make the claim that I have to prove something that was proven during the War of 1812, the Mexican War, the American Civil War, the Spanish-American War, the First and Second World Wars, the Korean, Vietnam, and both Iraq Wars–that the President can use the military to kill enemy combatants who are waging war against us. Either I’m right and we live in the real world where there is some semblance of sanity, or you’re right and every single enemy soldier killed in those conflicts was killed unlawfully. If that is the case, I’d argue a law which has been broken millions of times and never prosecuted is no sort of law at all.

“When the United States acts against its citizens abroad, it can do so only in accordance with all the limitations imposed by the Constitution, including Art. III, § 2, and the Fifth and Sixth Amendments.”

Reid v. Covert | 354 U.S. 1 (1956) | Justia U.S. Supreme Court Center

Enemy combatant status by itself is not good enough of itself unless you have some evidence that Gitmo detainees who are US citizens can be lawfully killed without due process of law.

Right, and the Constitution does not bar the President from killing an enemy combatant waging war against us even if they are American citizens. Anymore than the Constitution bars a policeman from shooting and killing an armed assailant.

I think you’re conflating enemy combatants with battlefields and legitimate military targets as though they’re always one in the same thing.

If Langley is directing troops on the battlefield then they’re as much a legitimate target as the troops on the actual battlefield because they are posing an imminent threat to others. Killing them would be a lawful act of self-defence EVEN if they’re not technically enemy combatants as would killing POTUS if he had his hand on the button.

However, a person who happens to be an enemy combatant in the sense that they’re enlisted to fight but is also residing in barracks or a private dwelling and thereby not posing an imminent threat to anyone is not a legitimate target.

Perhaps you recall the Fort Hood shooting where 12 soldiers were murdered amongst others? The fact Al Qaeda was at war with the United States did not permit them to kill soldiers who weren’t posing an imminent threat.

In fact did you know it is illegal to kill a wounded soldier on the battlefield if they’re no longer an imminent threat? That’s the law of hors de combat under the protocol 1 of the Geneva Convention.

So it is all about the circumstances of the case not just the status of the target.
Since Yemen was not in a state of war and Al-Awlaki was not killed on a battlefield nor it seems was he about to order a terrorist attack which would have made it defence of others, he had 5th amendment rights not to be killed without due process of law.

None of this is relevant to this situation at all. Except I will reiterate al-Awlaki was definitely killed on the battlefield.