It’s not about the authorization, it’s about the use of the authorization in such a way that violates the Constitution. The mere fact that the President acted within the authorization, but, in my opinion (happy Bricker?), unconstitutionally, does not mean the entire AUMF must be found unconstitutional. But if there is a conflict between the use of the AUMF and the Constitution, the Constitution wins.
But the AUMF does more than let the President use the armed forces. It says that he may use the military against anyone HE DETERMINES to be linked to Al Qaeda.
If your underlying point is fundamentally correct – that military actions in furtherance of war must not violate constitutional guarantees of due process – then wouldn’t it be reasonable to think that the AUMF is actually a bill of attainder? If this line of logic is sound, then Congress just declared everyone linked to Al Qaeda guilty of terrorism, and the penalty is death, regardless of their nationality.
Is there an error in this argument? (I have previously argued why, in that war isn’t criminal prosecution, but I’m curious what you think.)
And, once again, Congress cannot authorize the President to violate the Constitution.
I’m really not seeing how whether or not the AUMF is a bill of attainder has anything to do with this topic. I suppose, if I were attacking the assassination plan in court, I would include other Constitutional provisions (including the 4th Amendment), but I really doubt a bill of attainder attack would work. But, again, I don’t see what it has to do with anything.
I don’t think there is a big problem with defining the battlefield here. If this guy was in Germany, we’d cooperate with the German police and arrest him. But he’s in Yemen, in an area not functionally under the control of the government.
So, I’d define the battlefield as those areas, as determined by the president or Congress (take your pick), that are not effectively under the control of a government that we can cooperate with in order to capture the person. Basically, it’s those areas that we are currently using drone attacks to kill alleged al Qaeda operatives.
I’m using these two posts to solidify, what I think, this whole argument hinges on.
We know this much: The US Constitution would apply to an American abroad who was targeted for killing without due process (fundamental rights apply abroad, that seems fundamental to me). I assume we all agree the US Constitution, regarding due process, does not apply in a war. And Congress has not limited the President (ie, The AUMF is not limited to Aliens or Afghanistan.)
So the question is, (1) is there in fact a war in Yemen, and if so, (2) is this guy taking part in that war (ie, combatant or citizen)?
re: (1). Here’s a January Reuters article “Yemen in war with Al Qaeda.” Here’s a more recent article from the associated press which states, “al-Qaida in the Arabian Peninsula boasts that it’s using cheap and easy methods to attack U.S. targets, pointing to a failed plot to bomb two U.S.-bound cargo planes. The group says it can “bring down America” with smaller attacks that play on what it calls the "security phobia that is sweeping America.”
re: (2). I know it’s wiki, but here’s Al-Awlaki’s profile: “In March 2010, a tape featuring al-Awlaki was released in which he urged Muslims residing in the U.S. to attack their country of residence. In the video, he stated: To the Muslims in America, I have this to say: How can your conscience allow you to live in peaceful coexistence with a nation that is responsible for the tyranny and crimes committed against your own brothers and sisters? I eventually came to the conclusion that jihad (holy struggle) against America is binding upon myself just as it is binding upon every other able Muslim.” There’s more on the site.
Legally, if it’s a war (something the DoD, Executive, UN, ICRC, ect. decide, not me), then it’s a-ok to shoot your enemy first; that’s what war means. The military decides who the exact enemy is. The CnC is the head of the military. They decided this guy was the enemy. That’s it. The US could capture him and once captured, he’d have all kinds of Constitutional rights, however, could =/ must.
That’s just my .02
Putting aside what is legally required, as a practical matter I think there’s something to the idea of trying to more rigorously define the battlefield along the lines you suggest. Ideally, this would be defined in the AUMF. Also, obviously, if someone is already captured, then they are off the battlefield for these purposes.
The perfect corollary to this, which would make the targeted killing policy even more reasonable, is to say that if you turn yourself in for capture you will be treated humanely and receive due process. If you did what we think you did, then you’re in jail or dead. If you didn’t, you’ll go free. That way a US citizen need only return to the US in order to receive due process. And it brings the policy in line with how I assume it works for soldiers on the battlefield (no killing people who surrender). Unfortunately, no one would take that promise seriously any more after Dubya.
While I generally agree with what you are saying, there is the practical matter that someone like al-Awlaki cannot “return to the US”. He isn’t going to be able to board a plane and jet into JFK. Our “No Fly List” might be inadequate, but it’s not that bad.
He could, however, surrender. At that point, we would no longer be OK, constitutionally, to kill him. Killing him isn’t the primary objective. The primary objective is to prevent him from participating in terror activities. If he’s in an area outside our normal ability to capture him, then it’s OK to kill him. As soon as he isn’t in that area, then we capture him and treat him accordingly.
In a ruling that came as a surprise to absolutely no one, the DC circuit court granted the DOJ’s motion to dismiss for lack of justiciability. Judge Bates found that Al Awlaki’s father does not have standing (neither “next friend” nor as a “third party”) to challenge the extrajudicial killing order of his son. So the judge dismissed the Constitutional challenges. The judge went on to dismiss the claim under the Alien Tort Claims statute.
As to political question, the Court found that “Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.”
And finally, the Court declined to rule on the “state secret” defense raised, mostly because he ruled the other issues were enough.
The Court ruled as we figured, dismissing the case on justiciability issues and not reaching the merits.
I did, however, smile at this quote from the opinion: “How is it that judicial approval is required when the United States decides to target a US citizen overseas for electronic surveillance, but that, according to the defendants, judicial scrutiny is prohibited when the United States decides to target a US citizen overseas for death?” How indeed.
Unfortunately, we’ll likely never know.
Hamlet: I would be interested in hearing your thoughts on my proposal for how we define “the battlefield”. Seems like the thread died as soon as I posted what I thought was a reasonable and workable solution to an ill defined term.
Without making a straightout opinion on the matter, I think one thing being missed here is the simple fact of what Obama knows and what we don’t. Whatever side of the spectrum your on, I think its safe to say that Obama would be pissed off as well had he heard of something like this during the Bush Administration, and would not have agreed with it. Yet you can see that after he takes office his views on terror and the Iraq war etc. seemed to have stiffined. With a risk of repeating the statement being made alot recently; when Obama got sworn in and was given the lowdown by intelligence officials how serious matters like this can be and are, its almost unthinkable that a reasonable person wouldn’t be able to change his views on the matter with such information.
Well, yeah, but we all sort of assumed that he was into principles and such. Boy, is there egg on our faces.
One of the major reasons for the concept of “battlefield” in regards to the Geneva Convention or even the laws of war, was that there were times and places that weren’t “battlefields”. Insisting that the entire world is a “battlefield” for purposes of the application on the Constitution or our treaty obligations is contradictory to that. So, yes, I think a much more limited definition of battlefield is very much in order. Which is why I asked Bricker about his definition. He musta been busy.
I would be more than happy to move the definition of battlefield from it’s current “anywhere where I fucking want it to be” to your definition. It strikes me as a good balance, one that doesn’t put our soldiers/CIA operatives at unnecessary risk, but still has a modicum of respect for the concept of battlefield. And I would accept it for the billions of people who are not US citizens.
I think, however, that for the purposes of US citizens only, our standard should be higher than that. For the purposes of assassinating US citizens, I think the idea of the traditional battlefield (where shit is blowing up and there are miltitary actions being taken on both sides), should be implemented. When there isn’t the immediacy of the traditional battlefield, when there is time to plan and reflect, I think the Constitution requires more for US citizens.
Yemen is not Afhanistan. We have not declared war on or in Yemen. If, at a time outside the traditional definition of battlefield, the President wants to assassinate a US citizen, he should give him due process. It need not be a complete civilian trial, but something actually involving presentation of evidence to a neutral magistrate with someone representing his interests would be much more in line with our Constitution and the ideals our country were founded upon.
I also think that at any time Al Awlaki is an imminent and significant threat of death or serious physical injury to others (Tennessee v. Garner), they should be able to use deadly force. But for a “targeted killing” outside the traditional battlefield and involving a US citizens, I think the Constitution should apply.
Actually, I think that Yemen is Afghanistan, in the sense of what the AUMF was meant to cover. The AUMF didn’t even name Afghanistan. The 9/11 attacks were, we all assume, hatched in Afghanistan, but future attacks are now being hatched in the tribal regions of Pakistan, the ungovernable regions of Yemen and in Somalia. All of these are lands with essentially failed states.
I’m not following your reading of the Geneva Conventions. So far as I can tell, the only provision of the GC relative to battlefields is the duty to allow for the removal of sick and wounded while under a flag of truce. I’m not aware of any prescriptive definition of battlefield under any of the laws of war that defines areas that are not battlefields (excepting undefined areas in which an attack would be prohibited because the risk to non-combatants is out of proportion to the military objectives).
If I’m following your argument correctly, you seem to be asserting that we can define battlefields in order to restrict the broad geographical areas in which hostilities are allowed.
I am not sure that has ever been the definition of battlefields, as far as international law is concerned. To my understanding, battlefields are the places where fighting occurs. If fighting isn’t occurring there, it isn’t a battlefield. Once fighting occurs, it is a battlefield. Other than protecting non-combatants, I’m not sure there are any restrictions whatsoever on where war may take place.
I’m open to you showing why I’m wrong.
This is conveniently phrased to ignore the fact we haven’t declared war on Afghanistan, either. We declared war on Al Qaeda and its associates without respect to geographical boundaries.
Semantics. We invaded the sovereign state of Afghanistan. Formal declaration or not, we were at war with it.
It’s not semantics. The same authorization that let us invade Afghanistan equally applies to Yemen, Somalia, or any other place that we may attack due to the presence of Al Qaeda.
That’s the law. Look it up.
Note the tense there.
“Those organization” being al Qaeda and its affiliates. Its affiliates being determined by the President. This guy in Yemen fits the bill.
I think I know what you’re driving at there, but let’s just flesh that out. So are you saying that the US is only authorized to carry out a war against those members of Al Qaeda who joined prior to 9/11/01? And that because of the past tense, the US cannot make war on those who joined Al Qaeda after 9/11/01?
In your opinion, does the AUMF allow the president, in your opinion, to assassinate somebody in Germany, or in the US itself? John Mace, I like the way you’ve defined the battlefield, but like you said, that’s not the definition in the AUMF.