Al-Awlaki Killed

[John_Mace]

@CoolHandCox

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.

No. Did you read what I quoted? Here it is again with emphasis added:

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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Any future attacks. Those do not have to have anything to do with the events of 9/11/01.

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.

Well, that’s exactly my point. When we get to where the battlefield can be anywhere on earth at any time in the indeterminate future, then we are no longer in the realm of what has been traditionally considered “war powers”. We are now in the land of “blank check”.

[masterbeta]

@Ravenman

You can’t make war into a due process question if the courts say war questions are not due process questions.

The court said political questions aren’t subject to judicial review.

But despite the court being unable to grant an injunction to prevent the Federal govt killing citizens this doesn’t legalize the act, it such says that decision is not subject to judicial review.

When it comes to impeaching or indicting a President for violations of the Constitution it is no answer to claim their original decision was not subject to judicial review. They are completely distinct issues; a violation of the Constitution can be punished notwithstanding the decision that caused the violation being non-reviewable.

It would be ridiculous to argue that the President could act in violation of the Bill of Rights or acting beyond his Constitutional or Statutory Authority yet could simply raise the political question doctrine as a defence. That would be tantamount to granting him additional powers and immunities under the Constitution.

[gonzomax]

Most Guantanamo detainees are innocent: ex-Bush official | CBC News

I would like to suggest that we are often wrong in our accusations. That is why we have trials with evidence presented for both sides. There is lots of abuse possible.
We can attack any country that harbors terrorists? There fore we can attack Americans because we have terrorists in Michigan,
Are the Members of the Michigan Militia Terrorists? That was where McVey came from.

[Marley23]

@gonzomax

We can attack any country that harbors terrorists? There fore we can attack Americans because we have terrorists in Michigan

“Terrorists are there” is not the same thing as “they are harboring terrorists.” Much of the September 11th plotting was done in Germany, but the German government wasn’t harboring the terrorists. And of course some of the plotting was done here, but the U.S. wasn’t harboring the terrorists either.

[masterbeta]

just say* no idea why I wrote “such”… must be tired :smack:

[masterbeta]

@Marley23

“Terrorists are there” is not the same thing as “they are harboring terrorists.” Much of the September 11th plotting was done in Germany, but the German government wasn’t harboring the terrorists. And of course some of the plotting was done here, but the U.S. wasn’t harboring the terrorists either.

I agree. Nevertheless not every Afghani national is a legitimate target merely by association. Yet for some reason people here appear to think every Al Qaeda member can be a legitimate target merely by association…

[CoolHandCox]

@John_Mace

No. Did you read what I quoted?

Yup.

Here it is again with emphasis added: 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Any future attacks. Those do not have to have anything to do with the events of 9/11/01.

Think about it like this…part of what you underlined is the goal of the AUMF. The parts before it are the limitations on how to accomplish that goal.

So let’s rephrase the AUMF so it’s understandable: To prevent future attacks against America [goal of preventing attacks], the Prez [CnC] is authorized to use force [military] against those nations [Afghanistan], organizations [AQ], or persons [OBL] that planned/committed/ect the attacks on 9/11 [limitation], or nations that harbored those same persons or organizations that committed the attacks on 9/11 [limitation].

Better?

There is a point where the organizations/terrorists can become too attenuated to be combatants under the AUMF; I don’t think you understand that, though. AQAP likely falls under AUMF, but not all terrorists do.

Well, that’s exactly my point. When we get to where the battlefield can be anywhere on earth at any time in the indeterminate future, then we are no longer in the realm of what has been traditionally considered “war powers”. We are now in the land of “blank check”.

No, now this just ties back to the Eisenhower example. The battle is in Afghanistan. People can take part in that battle from farther away, though. Awlaki is trying to win that battle in Afghanistan by planning attacks against America, his enemy, from Yemen. Unfortunately, we live in a world were traveling and killing is easier so, yea, people taking part in the hot battle can literally be located throughout the world, and can be killed there…and quickly.

Having said all that, I truly do appreciate and understand the land of “blank check.” I think some of the laws of war are outdated for this type of stuff.

[Ravenman]

@masterbeta

The court said political questions aren’t subject to judicial review.

Q: How can a Fifth Amendment issue be a political question?

A: If it isn’t a Fifth Amendment question at all. If it were a Fifth Amendment issue, it would not be a political question. They are mutually exclusive, since civil rights and constitutional protections due to citizens are inherently NOT issues that court are unable to deal with.

As the ruling dismissing the al-Awlaki lawsuit states:

Courts are thus institutionally ill-equipped “to assess the nature of battlefield decisions,” DaCosta v. Laird, 471 F.2d 1146, 1155 (2d Cir. 1973), or to “define the standard for the government’s use of covert operations in conjunction with political turmoil in another country,” Schneider, 412 F.3d at 197. . . . The difficulty that U.S. courts would encounter if they were tasked with “ascertaining the ‘facts’ of military decisions exercised thousands of miles from the forum, lies at the heart of the determination whether the question [posed] is a ‘political’ one.” DaCosta, 471 F.2d at 1148.

But the court rejected that just because a decision involves foreign affairs that it is automatically a political question. It looked precisely at the issues being raised:

Judicial resolution of the “particular questions” posed by plaintiff in this case would require this Court to decide: (1) the precise nature and extent of Anwar Al-Aulaqi’s affiliation with AQAP; (2) whether AQAP and al Qaeda are so closely linked that the defendants’ targeted killing of Anwar Al-Aulaqi in Yemen would come within the United States’s current armed conflict with al Qaeda; (3) whether (assuming plaintiff’s proffered legal standard applies) Anwar Al-Aulaqi’s alleged terrorist activity renders him a “concrete, specific, and imminent threat to life or physical safety…”

Seems to me those are the exact questions that the “due process” proponents want the judiciary to examine.

So what was the court’s view of whether it could examine those matters?

it becomes clear that plaintiff’s claims pose precisely the types of complex policy questions that the D.C. Circuit has historically held non-justiciable under the political question doctrine. . . . Here, plaintiff asks this Court to do exactly what the D.C. Circuit forbid in El-Shifa – assess the merits of the President’s (alleged) decision to launch an attack on a foreign target. Although the “foreign target” happens to be a U.S. citizen, the same reasons that counseled against judicial resolution of the plaintiffs’ claims in El-Shifa apply with equal force here. Just as in El-Shifa, any judicial determination as to the propriety of a military attack on Anwar Al-Aulaqi would “‘require this court to elucidate the . . . standards that are to guide a President when he evaluates the veracity of military intelligence.’” . . . But there are no judicially manageable standards by which courts can endeavor to assess the President’s interpretation of military intelligence and his resulting decision – based on that intelligence – whether to use military force against a terrorist target overseas. . . .

In fact, the D.C. Circuit has expressly held that the question whether an organization’s alleged “terrorist activity” threatens “the national security of the United States” is “nonjusticiable.” . . . Given that courts may not undertake to assess whether a particular organization’s alleged terrorist activities threaten national security, it would seem axiomatic that courts must also decline to assess whether a particular individual’s alleged terrorist activities threaten national security. But absent such a judicial determination as to the nature and extent of the alleged national security threat that Anwar Al-Aulaqi poses to the United States, this Court cannot possibly determine whether the government’s alleged use of lethal force against Anwar Al-Aulaqi would be “justified or well-founded.” . . .

But as the D.C. Circuit has explained, “*t is not the role of judges to second-guess, with the benefit of hindsight, another branch’s determination that the interests of the United States call for military action.” El-Shifa, 607 F.3d at 844. Such military determinations are textually committed to the political branches. See Schneider, 412 F.3d at 194-95 (explaining that “Article I, Section 8 of the Constitution . . . is richly laden with the delegation of foreign policy and national security powers to Congress” . . . .

So, the very precise issues which some claim ought to be reviewed by the courts (“is this US person associated with a terrorist organization? Is he a threat to the United States?”) are the exact questions that both that court and the DC Circuit ruled that the courts have no business getting involved in.

[masterbeta]

@Ravenman

Q: How can a Fifth Amendment issue be a political question?

A: If it isn’t a Fifth Amendment question at all. If it were a Fifth Amendment issue, it would not be a political question. They are mutually exclusive, since civil rights and constitutional protections due to citizens are inherently NOT issues that court are unable to deal with.

As the ruling dismissing the al-Awlaki lawsuit states:But the court rejected that just because a decision involves foreign affairs that it is automatically a political question. It looked precisely at the issues being raised:Seems to me those are the exact questions that the “due process” proponents want the judiciary to examine.

Killing a US citizen without due process of law is a 5th amendment legal question.

The decision to place a US citizen on a CIA hit list is a political question insofar as the existence of such a list is not itself a question of law.

So you’re correct ,they are mutually exclusive. However, just because placing a US citizen on a CIA hit list is a political question does not logically entail that killing a US citizen without due process of law is no longer a 5th amendment legal question.

The political question cannot negate the legal question to be answered.

[masterbeta]

However, I do understand where the court is coming from… it cannot second-guess a military decision to target Awlaki and substitute its own decision for that of the President.

[Ravenman]

@masterbeta

Killing a US citizen without due process of law is a 5th amendment legal question. … However, just because placing a US citizen on a CIA hit list is a political question does not logically entail that killing a US citizen without due process of law is no longer a 5th amendment legal question.

There is no right without a remedy. Ubi jus ibi remedium.

Got that? If you think you have a right to something, but there is no way to receive satisfaction for an infringement on your supposed right, then the right does not exist. An unenforceable right is not a right.

If you suppose that enemy combatants have Fifth Amendment rights, how is it that such a right is going to be enforced by the courts if the very basis of the question – “Is this person a danger to the United States?” – is a question that courts themselves say they cannot answer?

[masterbeta]

@Ravenman

There is no right without a remedy.

Got that? If you think you have a right to something, but there is no way to receive satisfaction for an infringement on your supposed right, then the right does not exist. An unenforceable right is not a right.

If you suppose that enemy combatants have Fifth Amendment rights, how is it that such a right is going to be enforced by the courts if the very basis of the question – “Is this person a danger to the United States?” – is a question that courts themselves say they cannot answer?

Its called impeachment which is carried out by Congress. Hence a right and a remedy.

[Ravenman]

@masterbeta

Its called impeachment which is carried out by Congress. Hence a right and a remedy.

Not much help to al-Awlaki’s due process claim, innit?

[masterbeta]

@Ravenman

Not much help to al-Awlaki’s due process claim, innit?

A trial wasn’t going to be either.. you wouldn’t find a jury in the entire country that would find the President liable for civil rights violations.

[gonzomax]

@Marley23

“Terrorists are there” is not the same thing as “they are harboring terrorists.” Much of the September 11th plotting was done in Germany, but the German government wasn’t harboring the terrorists. And of course some of the plotting was done here, but the U.S. wasn’t harboring the terrorists either.

Define harboring. Have we taken them down? Are they in jail? Are we aware of them? Yet we allow them to practice, train and flourish.

[Ibn_Warraq]

@gonzomax

Define harboring. Have we taken them down? Are they in jail? Are we aware of them? Yet we allow them to practice, train and flourish.

Who are these “Michigan terrorists” and how many people have they killed?

[Marley23]

@gonzomax

Define harboring. Have we taken them down? Are they in jail? Are we aware of them? Yet we allow them to practice, train and flourish.

I would say harboring terrorists is knowingly sheltering them and allowing them to operate. And I have to echo Ibn Warraq’s question. Are you talking about those Michigan Militia types? What’s your basis for calling them terrorists- their peripheral connection to the the Oklahoma City bombing? Because the court found only Tim McVeigh and Terry Nichols were responsible for that. McVeigh is dead and I think Nichols is in Supermax Florence.

[gonzomax]

@Ibn_Warraq

Who are these “Michigan terrorists” and how many people have they killed?

They were where McVeigh was trained. He was connected to them as much as Awlaki was connected to AQ. Most people are well aware of the Michigan Militia.

[Marley23]

@gonzomax

They were where McVeigh was trained. He was connected to them as much as Awlaki was connected to AQ. Most people are well aware of the Michigan Militia.

I’m trying to find a better cite, but Wikipedia says the Michigan Militia was cleared of involvement with McVeigh and the bombing - and as noted, nobody except McVeigh and Nichols was charged. On top of that, the government is currently prosecuting an MMC splinter group. You’re going to have explain to me how arresting and prosecuting terrorists counts as harboring them.

[The_Other_Waldo_Pepper]

@masterbeta

I agree. Nevertheless not every Afghani national is a legitimate target merely by association. Yet for some reason people here appear to think every Al Qaeda member can be a legitimate target merely by association…

Not every Afghani national, no. But in time of war, what about every Afghani infantryman? Or every line officer in the Afghan National Air Force?