His father did not have standing? Who the hell else should?
The NYAH NYAH, no courts will rule, wasn’t that convincing when it appeared on page 1. But you know what, I’d be willing to make that bet with you IF the court actually gets to the merits of the case. The prior case never got to the merits, and I highly doubt any case will get to the merits. Whether it is standing, non-justiciable, or state secrets aren’t the merits. But if a court does get to the merits of the case and make a determination on due process, I’d be more than willing to bet they rule closer to my view than yours.
No Constitutional right is universal, all of them are subject to limitations. I am not entitled to have an attorney present during my shootout with police, for example.
On the battlefield the rules are that you kill the enemy unless they make some effort proactively to surrender. No international agreements that we are signatory to have ever given an “active requirement to solicit surrender” as a requirement. As long as we’re following the accepted laws of war (and bombing someone from above is very cut and dry), that’s really the only legal issue that is here at all.
Everything is a “minor political issue” in which a few Justice Department lawyers typed some pretty words up due to the political sensitivity, but even that was wholly unnecessary and was a political act in and of itself.
I find it very telling you like to repeatedly cite old SCOTUS cases that have to do with seizures, trials of Americans overseas, American traitors being executed and things of that nature, the various Guantanamo Bay trials–all of which at best only tangentially touch on any of the issues that actually pertain to al-Awlaki. You use these cases to prove your point, but when we bring up the fact that in the reality of this case the legal system has not done anything to buttress your point; has in fact rejected the idea of even hearing about it, you just say that “isn’t convincing.”
If the courts rule that the issue is a political question between the executive and legislative, I contend that such a ruling is an explicit rejection of your claim that the Fifth Amendment controls. That’s because if it is a political question, that means that the Fifth Amendment (nor any other amendment) has any bearing on the case. If there is a constitutional protection at state, then the courts cannot find it to be a political question.
I agree that if the court finds that there is an issue with standing or state secrets, that should be a push.
But you have to examine the heart of what you’re saying here. Are you familiar with the phrase, there is no right without a corresponding legal remedy? If we have a right, we can appeal to the courts to protect or rectify the wrong that has been done. If it is impossible for the court to order a remedy to a “wrong,” then there is no right to begin with. You seem to be arguing that there is a right to Fifth Amendment protections that the courts will probably never rule on the substance of: that means that no Fifth Amendment protection exists.
I’m still willing to make a wager, with the note that if standing or state secrets are key, then the bet should be a push; but the dismissal of a suit for political doctrine is evidence that no Fifth Amendment issue exists. I would have to win the bet in that case.
ETA: and if they rule on the merits of the Fifth Amendment and find that due process was not present, of course you’d win the bet.
I contend you’re wrong. The political question doctrine, like most justiciability issues, is about separation of powers, not due process or any of the Bill of Rights. If that’s the deal breaker, c’est la vie, no bet.
I would consider it a win if they agree that Al Awlaki had a right to due process, even if, after all the information happens they find the President did give him due process.
So, if you’re interested, how about a wager for a case of good local craft beer (assuming you’re old enough to drink). If the Court rules on the due process issue, and finds Al Awlaki had no due process or 4th amendment rights, you win. If they find he did have those rights, I win. And if they rule that it’s non justiciable, it’s a push.
If a case is about due process, it is inherently NOT a political question. The core of political questions are matters that are under the authority of elected leaders. Nobody, not even me, can conceive that the Fifth Amendment is an issue under the authority of elected leaders.
I’ll agree, but I do so with the complete and unqualified belief that the courts will find it to be a matter of foreign affairs and the conduct of war, not of due process, and therefore dismiss the suit.
Once a court ruling has come down, we can figure out logistics. My hunch is that there may not even be a lawsuit, but we’ll see.
I agree that the odds of a resolution to this issue is next to nil. But, if they do, I’m confident that the due process rights guaranteed in the Constitution don’t stop applying when the President declares you an enemy combatant.
More like “Yeah, me too,” said Chessic Sense, unable to wade through 7 pages of your bullshit.
It’s already been established that 1) it wasn’t for his speech, 2) there was a trial and he was convicted, and 3) there’s plenty of evidence. So are you lying or just completely unfamiliar with the case?
It’s gonzomax. You’re lucky he was even addressing the same subject the adults are talking about.
The holding is quite clear. American citizens abroad are not automatically stripped of their Constitutional rights.
I read the concurrence and it bears little weight since Justice Hugo Black who was in the plurality noted:
"neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperant when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government”
So you were saying?
It’s interesting that you provide no sources whatsoever on this point.. but anyway I shall retract my point about barracks since in a state of war they are legitimate military targets but my point stands on private dwellings if the soldier is not actively participating in the hostilities or posing an imminent threat to others.
Protocol 1 of the Geneva Convention:
"Art 52. General Protection of civilian objects
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Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
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Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."
So a military target must have a military objective. If it does not have a military objective then it is a civilian object by definition.
Civilians who are shooting at police pose an imminent threat which allows them to raise a self-defence or defence of others justification so you’re comparing apples with oranges.
What you’re suggesting (correct me if I’m mistaken) is that the war power in article 2, section 2, clause 1 grants the President a licence to kill someone on the hit list by performing a military operation.
In order to accept this proposition let’s look at the possible ramifications:
- It assumes that the 5th amendment has no application over the use of the President’s war making powers.
IF a citizen retained their 5th amendment rights overseas this trumps any Federal Power to the contrary because enumerated rights trump the enumerated powers.
This is uncontroversial since the Bill of Rights are limitations on the Federal Govt.
- If the act of performing a military operation is covered by the war making power then why limit it to “battlefields”?
Surely a military operation in London is covered because the President’s war making powers allows him to target whomever he wants.
Ah yes once again trying to switch the burden; even if we are to accept that the designation by the executive of who constitutes an “enemy combatant” is valid, it does not logically follow that they have no 5th amendment rights just because they’re killed in a military operation.. I already concede that if they’re killed on a battlefield or whilst actively directing the hostilities i.e. commander in the field that is different.
You’re trying to describe a precedent that just isn’t there.
No you’re trying to use uncontroversial battlefield situations to either justify targeted killing as long as its done by a military operation ordered by POTUS or you’re trying to use it to extend the definition of the battlefield itself.
You’re trying to describe a precedent that simply isn’t there.
Also I’m not trying to argue, as you completely misrepresented, that the President does not have the power to kill non-citizens in conflicts or via any military operation. Where did I make that claim?
Reid v Covert (1957) does not extend Constitutional rights to non-citizens outside the United States or its Territories.
If Al-Awlaki as a US citizen had 5th amendment rights outside the United States it is presumed that he had them when he was killed unless you can prove that they were inoperative.
I already concede that if he was killed on the field of battle or posing an imminent threat to others that he would not have 5th amendment rights.
He does not appear to have been killed on a the field of battle though I’m willing to debate that with you.
An undisclosed location in Yemen which lacks two or more groups of belligerents engaged in hostilities hardly qualifies as a battlefield in common usage though if you have a legal definition that contradicts that…
I’ll cite a dictionary definition from the Concise Oxford Dictionary in the meantime:
Battlefield (also battleground) noun. the piece of ground on which a battle is fought.
Battle noun.
- Sustained fighting between organized armed forces.
- Lengthy and difficult conflict or struggle.
He does not appear to have been posing an imminent threat to others. Again I’m willing to debate that with you.
He was killed in a military operation for which there is NO PRECEDENT to justify it. I’m inclined to go with the presumption of liberty on this one until you can convince me otherwise. He had 5th amendment rights so this was unlawful.
Your first two sentences don’t jive, but your first is more accurate. I’ll rephrase the standard to someone who takes part in the hostilities (you say “directing” which I think is too narrow). So, someone who is commanding a detainee camp in Guantanamo is taking part in the hostilities (the Global War on Terror) and is a combatant and a legitimate military target. He is not an imminent threat, he is not on a “battlefield”, he is not directing the hostilities (commanding a few miles from a hot battlefield). Agree?
If so, then is someone like Awlaki who intelligence shows has taken an operational role in past attacks and wants to take part in future attacks, is that taking part in the hostilities? Almost certainly. So does he have 5th Amendment due process protections? No (although I would guess he did by this administration - just not sure how much).
[bolding mine] So what does that mean? Did the US/President commit a crime in depriving someone of their life without valid due process?
I agree that he is not on the battlefield, he is not directing the hostilities and he is not an imminent threat.
However, the reason he may be a legitimate military target is pursuant to article 52 of protocol 1 of the Geneva Conventions whereby attacking Guantanamo Bay could itself be a legitimate target.
“2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
So essentially munitions factories, communication infrastructure etc. whilst not on the battlefield itself are nonetheless legitimate military targets due to the military advantage that is gained from destroying them.
Perhaps destroying or capturing Guantanamo Bay would provide a military advantage and if so it is a legitimate target including those who operate it.
The difference is I’m conceding that the commander of Guantanmo Bay can be killed only so far as Guantanamo Bay is a legitimate target since its destruction or capture could provide a definite military advantage.
What I’m not conceding is that the location Al-Awlaki was killed in provided a direct military advantage thereby making it a legitimate target.
If there is evidence to the contrary that it cleared the space for US military operations and killing him was merely incidental to that objective (just like killing the Gitmo commander would be incidental), then I have no objection.
We killed an American citizen living in another country because of his speech. Something seems wrong about that. Exercising your rights of free speech can get you killed.
I agree those are principles on whether an object is a valid military objective.
But we’re talking about persons here. People can most certainly be valid military objectives (both objects or combatants can be). Look at Art. 51.
Surely the Gitmo commander is not a civilian - he’s a combatant. He’s likely a high ranking officer in the Marines. Of course he’s a legit target. As is Obama vacationing at Camp David. He’s the CnC of the military, surely him, and not his location, is the determining factor in that targeting decision.
So then I assume you’re outraged at Charles Manson being jailed for “his speech” and feel his “freedom of speech” was violated?
I assume you also are outraged at the jailing of Omar Abd Al-Rahman?
Anyway, please be quiet because the adults are talking.
…and with that, we’re back to page one.
Obama would be a legitimate target during war because he will have direct command over military forces on the battlefield no matter where he is in the world.
However, al-Awlaki is not necessarily analogous unless there was evidence he was directing operatives who were posing an imminent threat or acting like a military commander by directing forces on the battlefield.
Also I would not agree that the Gitmo commander in of himself is a legitimate target merely because he is a member of the armed forces.
Even combatants cannot always be killed just because of their status and I have conceded he can be incidentally targeted as part of the objective of securing Guantanamo Bay.
Whether he could be himself could be targeted outside of securing a military objective i.e. in his home is debatable because targeting his home is certainly not a military objective unless he is commanding forces from there or somehow posing an imminent threat.