For being a member of Al Qaeda and being involved in its terrorist attacks for about 10 years. I spent two pages upthread posting about this while you stuck your fingers in your ears. His involvement wasn’t proved in a court and there should be some process resembling a trial for citizens, but it was never just ‘he makes YouTube videos.’ And plotting terrorist attacks is not protected speech, it’s criminal activity.
I was thinking of Martin Hyde’s arguments.
The drone program predates Obama, although Obama has ramped it up. Saying this started with Bin Laden is dumb even as a hypothetical.
It was no secret that Awlaki was on the list; as you mentioned, his father even had enough time to go through the proper channels in court. So once the government declared Awlaki to be “an unlawful combatant”, would Awlaki have been “afforded due process” in general and “afforded an opportunity to challenge that designation” in particular if he’d turned himself in to personally clear up the charges?
You mean except for the part where they didn’t say the Commander in Chief power renders the rest of the Constitution void?
It’s actually a classic case of Constitutional interpretation. You have the grant of power to a branch in one section (the CinC power), and the protection of a right in another (due process), and you have to determine which one wins. In this case, I think it’s a relatively easy call, due process. Contrary to some assertions in this thread, the Supreme Court and Congress have been limiting the President’s CinC power since, hell, the Flying Fish case? The most recent ones were the ones repeatedly cited in this thread, Hamdi and Hamdan. The words "Commander in Chief, “military”, “war”, and “enemy” aren’t magic words that simply nullify the protections of the Constitution.
Correct me if I’m wrong, but Shay’s rebellion was a couple years before the Constitution was ratified. And given the founding father’s dislike for a standing army, I think deciding that they intended the military to have the power to violate the Constititution would be wrong.
Me? It would depend upon the entire setup. I would say that I don’t think it would require beyond a reasonable doubt, given the deference to Presidential findings, so I’d probably go with “clear and convincing”. I actually haven’t written the entire system/appellate review of the Hamlet Act for the Protection of the Constitution and Killing of US Citizens, so you’ll forgive me if I don’t have the entire thing planned out perfectly yet.
That’s exactly our system. And the international one. If you take as true there is an armed conflict with AQAP, then the CnC chief of ultimately decides who gets killed. There is no other system set up. Now, should there be more protections is a great debate and has already occurred in this thread.
Thus, Hamdi was an enemy combatant. Combatant’s can be killed. Hamdi was in a battle with Americans, then he surrendered and was detained. You get a lot more rights when you’re captured than you do when you’re fighting. I mean, right? He was in a truly “classic” battle, surely he had no rights outside the laws of war.
Eisenhower is being used to show that people can be legitimately targeted away from the actual fighting. It’s a really good analogy because it’s clear and it makes sense.
Are you saying if Awlaki was on the battlefield he could be killed? Why does that matter to you?
Let’s be clear: I’m not talking about Article II. I’m talking about Art I, Sec 8, and the war power.
You keep trying to paint folks with this strawman of an argument that the CinC clause lets the President do anything: false. That is not, and has never been, what I have argued. I’m stating the very conservative, boring proposition that when Congress authorizes war, the killing of enemies is allowed.
Does the defense get to present evidence? Assuming that it might be tough for an enemy combatant to participate in legal hearings, what if the defense does not participate?
Note that the injunction that was heard by the court was not requested by al-Awlaki. Had he hired a lawyer to contest the process, then standing wouldn’t have been an issue.
An even more conservative and boring argument would be that Congress does not have the authority to allow the C-in-C to suspend constitutional protections by declaring war.
Sure. And, like all of the President’s powers, it is not without limitations.
Of course.
Appoint an attorney to represent their interests, or, like in Al Awlaki’s case, let the family hire one. The attorney mounts the best defense he/she can. He can call witnesses if available, can make objections, and do almost all the things defense counsel do. Should I get to work on writing up that bill and/or judicial opinions, or can we stop this hijack?
sigh. What protections did you think the Court has invoked in the Hamdan and Hamdi cases? That’s right, due process. Also habeas too, and others. But they are limitations on the Presidential war powers despite being done pursuant to the AUMF.
You’ve made me repeat the same damn thing 20 times and you still don’t get it. No wonder my quiver is empty; all the arrows are stuck in you.
Yes, because those people are in US custody, not 7,000 miles away in the middle of another country. I have told you that those decisions are absolutely right and justifiable, but there is a huge difference between how we treat combatants in our custody and those who are on the loose.
I’m talking specifically about the case that al-Awlaki’s father brought on Fifth Amendment grounds. The court not only rejected his standing, they rejected the court’s involvement in the conduct of war. You can’t make war into a due process question if the courts say war questions are not due process questions.
ETA: To suffer the slings and arrows of outrageous… ah, forget it.
So, when does this war, from which the president derives this war power, end?
You see, that’s the problem. There’s the war aspect of this whole damn thing (ie, Iraq and Afghanistan) and then there’s the stuff that really can’t be called “war” at all. Some guy hiding out in the desert of Yemen isn’t part of a “war” in the sense that evokes war powers. This is more of a police action, and is better governed that way.
The AUMF needs to be bounded in some ways if it is going to be the source of war powers, because we simply cannot be at war with the entirety of the planet and have the president invoke war powers whenever it is simply convenient to do so.
Congress can end it. Obama would not dare continue without that authorization (well, not the old Obama).
The President can withdraw our troops and end it. It would be a much more tenuous argument to make that we are still at war (Obama wouldn’t even call our Libyan actions as taking part in the hostilities - different standard - but still). If there isn’t a “hot” war to tie all this on, then it’s starts to get shaky that we are still in an actual war. As long as we’re in Afghanistan though, I think he’s got cover.
We kill/detain all the bad guys the AUMF covers. AQ->AQAP->??-??. The ?? groups starts to get pretty shaky being tied back to the AUMF. It doesn’t apply to *all *terrorists.
But really, it’s tough to tell when this war can/will end. It will just be a policy decision. Likely a convergence between CIA/DoD will happen and could just go back to how it was under Clinton, but on steroids. However, Congress is about to amend the AUMF to widen its grasp. Get ready for some fun.
This war power ends lots of places, if I’m understanding your question correctly. We can’t attack China under the AUMF. We can’t violate the laws of war under the AUMF. We can’t invade North Dakota under the AUMF. The AUMF is broad, but it isn’t unlimited, and no loaded question/slippery slope insinuation changes that.
Constitutionally speaking, which has more weight: Congress authorizing a conflict by a near-unanimous vote and the President executing the war within the parameters that our (then-)elected officials approved, or some vague feeling that something just doesn’t “feeeeeeeel” like a war? Just look through the long history of how Congress has acted on war powers – from the War Powers Resolution all the way back to authorizing the use of miltiary force on privateers in the late 18th century – and it’s plenty clear that the idea of war needing to be a conflict between two massed armies facing each other down on pre-approved battlefields is not supported by the facts.
I would take this statement seriously if you would avoid the hyperbole. The AUMF does not authorize war “with the entirety of the planet.” I happen to think that the AUMF should be reviewed in light of where we are with AQ at this point, but that doesn’t make it unconstitutional or invalid.
What’s that quote by the famous jurist – something like, just because the Constitution is a great document doesn’t mean it holds the solution to every ill in the world? (I’m probably mangling that quite a bit – but my jist is that just because you don’t like a law doesn’t mean that it is invalid.)
There is nothing in the AUMF that limits the president in any way from determining any country is a threat to the US wrt terrorism. Any country he determines is harboring terrorists is fair game. It is unlikely that Germany or Britain are going to fall in that category, but there is nothing in the resolution that prevents them from doing so. As for China, they could easily fall into the category described in the AUMF, but there are other reasons why we wouldn’t attack them or use drones as we did in Yemen.
And I never said it doesn’t “feeeeel” like a war. I said it isn’t a war. And it isn’t under any meaningful definition of the term.
If it isn’t a war, then Common Article 3 of the Geneva Conventions does not apply. I am not willing to sign up to a definition of military conflict in which our enemies are not guaranteed the most basic guarantees of humane treatment.
No, not any country harboring terrorists. That’s not correct. It doesn’t apply to all terrorists, basically, only ones you can relate back to 9/11 and/or countries that harbored them. Like Afghanistan.
There is most definitely a war going on in Afghanistan. Yes? That war is against the Taliban (harboring) and AQ (committed 9/11)? Yes. AUMF allows us to kill people in that “hot” battlefield and also combatants who are taking part in that battlefield wherever found. Awlaki was taking part in that battlefield by planning previous failed attacks and future attacks against America (you/we can be attacked in this war too, it’s not just one sided and “over there”). He was legitimately killed in that war, albeit away from the “hot” battlefield, through great intelligence and technology and with the consent of Yemen.
I think I was too quick in agreeing that the President can automatically target any member of Al Qaeda through the AUMF. He can target Al Qaeda as an organization but I’m troubled by the idea that it makes literally any of the members fair game for targeted killings.
Congress did authorize a war under the AUMF:
“That the President is authorized 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”
This is a very important qualification because there is no evidence linking Awlaki to the 9/11 attacks even though he is clearly linked incidents such as the Ft Hood shooting and underwear bomber.
Since it states organizations which planned etc. the 9/11 attacks and he is a member of Al Qaeda which is the organization which committed the attacks then there is an argument that he could be a target just by association even if he did not participate or materially contribute toward 9/11.
However, this kind of reasoning runs into problems when you consider nations that aided terrorists who committed the attacks. By the reasoning employed above does that mean that any national is automatically a legitimate target by association? If not then why not considering Awlaki’s membership to Al Qaeda theoretically makes him a legitimate target? Obviously nationals of those countries who engage the United States in hostilities e.g. Afghan soldiers are all legitimate targets but its not purely by association.
Obviously the legislation intended that those who materially contributed toward or participated in 9/11 are legitimate targets rather than their mere association to an organization or nation who planned, committed or aided the attacks. IMHO the President has acted ultra vires this statutory authority if he used it as a justification for targeting Awlaki.
If, on the other hand, there was evidence that Awlaki was engaged in hostilities with Al Qaeda against the United States then he becomes a target so long as he engages in those hostilities.
But I don’t agree that the AUMF marked him out for targeted killing.
So Al Qaeda as an organization can be targeted, the nation of Afghanistan can be targeted but the only specific individuals who can be subjected to targeting no matter where they are and what they’re doing are those who planned, authorized, committed or aided the 9/11 attacks.
People can be killed incidentally as part of the general targeting of Al Qaeda and Afghanistan but not as individuals. That’s my reading of it anyway.
