I think what you guys are missing is that we are at war. It may be a “phony” war, with unclear borders, but I think we can all agree that while “war against terror” is flimsy, a big part of it is that we are actively at war with the organization known as Al-Qaeda.
Then boy, you must have hated Vietnam, Korea, Iraq, and WWII. Millions were killed without any ability for us to evaluate it. Whenever a vietkong or Sturmtruppe was killed, were they given fair trial? No. You know why? Because it’s war. When war is declared, both sides effectively give up their rights to trial to their enemy. When you are an enemy combatant, you can be killed or captured and held indefinitely without trial. Such is the manner of war. I don’t like it, and I think the “War on Terror” is a very flimsy one, but when it comes to killing an active operative in the organization we are “effectively” at war with, then I will damn well defend it.
Here are some interesting excerpts:
“Civilians are protected unless and for such time as they take a direct part in hostilities. Professor Antonio Cassese writes, “[W]hen civilians taking a direct part in hostilities lay down their arms, they re-acquire noncombatant immunity and may not be made objects of attack although they are amenable to prosecution for unlawfully participating in hostilities (war crimes).” But, one may argue, by virtue of their positions, civilians who lead terrorist groups seldom literally pick up arms and, in essence, never lay down their arms” (page 9)
“A combatant general, for example, Dwight Eisenhower during World War II, was, by virtue of his position of command and authority, a legitimate target whenever and wherever he could be found by Axis combatants. Whether in London, in Kansas, in civilian clothes or uniform, Eisenhower was always on duty, always an Allied commander, and could have been lawfully killed by any enemy combatant.” (page 10)
Should civilian terrorist leaders, and terrorists with critical war-making skills, be free from the same threat by consciously avoiding lawful combatancy?" (page 10)
“Determining an individual‟s “direct participation,” should not be confused with tests for lawfully targeting objects. The criteria for targeting “people” and “objects” differ. Direct participation remains the thorniest issue in targeted killing, something that States and their political leaders and military commanders must resolve in each case, recalling that their resolutions may eventually be under international review. LOAC boldly states the criteria for targeting but does not clearly apply its criteria to kaleidoscopic real-world situations.” (Page 11)
“If an expanded interpretation of who constitutes a legitimate civilian candidate for targeted killing is accepted, we must accept that our own un-uniformed leaders and weapons specialists will become legitimate targets.” (page 11/12)
“LOAC is not contravened if a targeted killing is carried out by a nation acting within the parameters described here. In United States law, and in LOAC, the targeting killing of civilians taking a direct part in hostilities, while they are taking a direct part, is not forbidden. The issue is in deciding what constitutes “a direct part.” As always, the devil is in the details.” (page 12)
I think the laws of war need revision to clarify the status of terrorists or else adopt a necessity based test of justification.
Obama uses status based targeting. If intelligence shows you’re apart of AQ (or related organizations), then you’re a potentially valid target.
Internationally, I would wager the laws of war are clear that these types of terrorists are “civilians.” It is only recently that they have become combatants. If you’re saying the laws of war need to be revised to reflect that, you’d be in the minority (but welcome aboard!).
A good place to start to learn anything about the Laws of War/Laws of Armed Conflict/International Humanitarian Law (they all refer to the same body of law) is the International Red Cross. See this link for IHL laws regarding terrorism (click on each of the frequently asked questions links). Here’s a relevant excerpt:
So how would that apply to Awlaki, AQAP is likely not in an armed conflict with us, and thus he is not an enemy combatant. Now, your link talks about civilians (Awlaki) going in and out of IHL/combatant status depending on if they are taking part in the hostilities, but (and I didnt read your full link) I believe you have to actually be taking a much more active part in “true” hostilities (not planning criminal terrorism acts).
If you really accept our governments claims that Awlaki was an enemy combatant, he should have been put on trial. Do it in absentia ,but allow someone to offer a defense. I do not trust all my government says. That is because they have shown the ability to lie to me over and over.
Gulf of Tonkin and Weapons of Mass Destruction, ring a bell?
Damn you for making me defend gonzo, but you know what he’s talking about. Two incidents in which the government lied (or exaggerated, if you will) in order to accomplish an end. The goal here is to avoid that that type of thing going forward by having an independent judiciary ruling rather than relying solely on the administration.
If the Framers had intended the courts to be involved in war, they might have wrote a Constitution that subjected the use of the military to judicial review.
Think the DC Court of Appeals would have found that no WMD existed before we marched to Baghdad? I don’t.
Okay, that’s a cheap shot. What would be the judicial standard that you would propose using to determine whether an American citizen may be lawfully targeted? Must he be found to be an Al Qaeda member beyond a reasonable doubt? Would simple probable cause be sufficient?
I guess I’m just troubled by the unintended consequences of any interpretative technique under the current framework.
I think OBL could have qualified as an equivalent of General Eisenhower insofar as he was always part of the chain of command of Al Qaeda even though he is also technically a civilian.
I think the international community accepts that its most senior war leaders are always legitimate targets no matter where they are on Earth. Should that apply to the most senior civilian terrorist leaders? Perhaps.
However, I’m not sure if al-Awlaki was the equivalent of Eisenhower although he clearly directed some operations. If he was the equivalent of Eisenhower then under international law at least his killing would be justified no matter where he was and no matter what he was doing.
It becomes more problematic when even lower level terrorists are targeted.
The article suggests that terrorists can switch between non combatant and combatant status depending on whether they’re taking a direct part in the hostilities or alternatively that because they never truly take up or lay down their arms but could always contribute materially to the hostilities they’re always a legitimate target.
If we prefer the former then we must accept that most terrorists can only be targets when they’re taking a direct part in hostilities. This may not be a desirable test.
If we prefer the latter then we may have to accept that civilians who assist in a war effort e.g. workers at a munitions factory are always legitimate targets whether they’re taking a direct part in hostilities or not because they could always contribute materially to the hostilities.
I think hostilities can be read as wider than armed conflicts but it is problematic that they can theoretically go in and out of combatant status depending on whether they’re directly participating.
I do understand what he’s talking about, and I said a couple of times upthread that I would support a judicial review in these determinations. I accept that apprehending these guys isn’t always possible, but I don’t accept the interpretation that the battlefield is wherever an accused terrorist is and an accused terrorist is always on the battlefield. That’s a tautology or something close to it. And not trusting the government is fine. But this isn’t the Tonkin incident and al-Awlaki wasn’t killed for making YouTube videos.
Except there is absolutely no evidence that they intended to make criminal law procedures apply to the conduct of war. Even from the earliest days of the country, when the Framers were running the show, nobody thought that the Attorney General would have to convince a magistrate to issue a warrant allowing for Shay’s Rebellion to be put down.
I was actually rather interested in a serious answer. What burden of proof does the government need to meet, in your opinion, to have a court sign a death warrant?
masterbeta and I are having a discussion about this now. The interpretation you don’t accept, is not what’s being claimed (not by the administration at least).
As a foundational premise, you either accept the US can, and is, in a war against AQ (and AQAP). If so, that’s an armed conflict. If you don’t accept that can, or is, happening, then everything after must be construed using domestic/international criminal law; and Awlaki cannot be targeted/killed in the way he was.
If there is an armed conflict, then combatants can be killed away from the actual hot battlefield. Eisenhower was offered as a perfect example. He’s sitting in an office 1,000 miles away from any fighting, but he can most definitely be killed. It’s not because he’s a “walking battlefield” (that would be Patton), but because he is still actively taking part in the “real” battlefield - even though it’s 1,000 miles away.
Awlaki, might not be doing the actual fighting, but, as an operational planner of attacks, he is taking part in it, and as a result may be killed wherever located.
That’s, very likely, the logic being used. The other terrorist killed, the propaganda guy, likely could not have been targeted because he was not taking part in a real enough way (it’s just unfortunate he was riding with someone who was).
Yup that certainly sums up the position at international law. Awlaki’s killing was probably lawful if we take the Eisenhower approach and since Samir Khan was collateral damage rather than a specific target his killing was also lawful in the circumstances.
However, I’ve been thinking more about the domestic law situation and would like to compare Awlaki to US citizens killed during the Civil War.
I would argue that the Civil War began as a lawful suppression of Rebellion by the Union against the Confederacy. Therefore, where the suppression was lawful any armed resistance could be justifiably met with proportional force which in this case included lethal force. Kind of like a police officer lawfully suppressing a riot being resisted with unlawful force.
However, not every action of the Union was justified merely on the basis that the Confederacy “started it” because having a justification to wage a War is not a justification for every action that is committed during it. (Jus ad bellum and jus in bello)
If and when the federal govt ceased to be lawfully suppressing a rebellion and instead goes on the full offensive then they may be violating the 5th amendment and arguably the Confederacy would have been acting in lawful self-defence by resisting them.
So to draw all that back to al-Awlaki; the President is justified under the AUMF to wage war against Al Qaeda. This is relatively uncontroversial.
However, this does not itself provide justification to kill al-Awlaki because he has protection under the 5th until such time as he does what Confederate soldiers did and resist the lawful actions of the Federal govt by engaging in unlawful hostilities against them.
There is no doubt he planned operations to kill US citizens but whether he actively resisted the lawful actions of the Federal govt by engaging in unlawful hostilities against them is debatable. This is the trouble with terrorism; it almost never involves engaging military forces like the Confederates did.
I just don’t think the Union had a licence to kill a member of the Confederacy just for existing.
The lawful basis for the Civil War was to suppress a rebellion, which began by the Confederacy attacking Ft Sumter, rather than to annihilate all that political opposition to the federal govt which is almost certainly unconstitutional.
Where the Union stuck to that aim any resistance could be met with proportional and thereby lethal force. Where it became an attempt to annihilate political opposition it was probably unconstitutional.
Yes there is doubt. That’s one of the fundamental problems here. We have the unchallenged claim of the President that Awlaki had operational involvement in AQ. Awlaki was afforded no opportunity to challenge that claim; he was put on a targeted killing list, and his father’s attempt to challenge the government’s order was rebuffed by the court. You guys seem to be forgetting that just because the government has claimed something doesn’t make it true. That’s not our system.
Hamdi says that an American citizen may not be detained indefinitely as an unlawful combatant, that they may challenge that status, and it’s absolutely analogous. The government says Hamdi is Taliban, Hamdi says he’s a relief worker mistakenly swept up, and the Supreme Court says Hamdi must be afforded some measure of due process so that he may challenge the government’s claim. It would thus follow that any American declared an “unlawful combatant” be afforded an opportunity to challenge that designation. Whether someone has been captured or not shouldn’t make a difference, otherwise you create a perverse incentive for the government to just kill any American they suspect is an unlawful combatant.
So the “Eisenhower” example fails here. A more accurate analogy would be if Roosevelt decided that Eisenhower was a secret Nazi spy and had him assassinated. That would have been clearly illegal, as Eisenhower would have been entitled to some form of due process. So we’re right back to the question of whether Awlaki was on a battlefield or not. I maintain that he was not.