Better yet, lets assume that US citizens joined in conspiring to sabotage in the US as spies and are “enemy combatants”. Does the President get to order the apartment they are living in New York firebombed? Maybe the President instead gives them military trials with a finding of guilt and an appeal before having them killed.
You know the difference between your hypothetical and mine? Mine happened.
Of course not.
ETA: Grumann already dealt with this. The entire world isn’t a combat battlefield, and we are not at war with Yemen.
Do we actually need a Supreme Court case to say that if a U.S. citizen is believed by a U.S. solider to be an enemy combatant on the battlefield and presents an imminent threat that any 18-year-old Marine’s snap judgment is sufficient to shoot him? Or are some people seriously proposing that this Marine must hold fire and call up Judge Lamberth?
Surely the difficult legal question here is how the Constitution applies, if at all, to limit what the Executive and/or Congress may declare is the battlefield on which ordinary rules of due process no longer apply. And, secondarily, whether one can present a sufficiently imminent threat to warrant deadly military force when one is, say, hiding in Yemen.
Same for the who gets to decide most constitutional issues. All three branches of government. For example, President Bush determined that the AUMF (from Congress) authorized him to hold foreign nationals in US territory without having to extend any Constitutional protections to them. He fought very hard to make sure the judiciary didn’t get to decide the issue either.
The court ruling in the OP doesn’t count for some reason? Not the suits files by Awlaki’s father?
Surely we all know that the courts have not found the right that you say exists to trials before acts of war are carried out. The burden is on you and the courts to establish that right; not for others to prove the non-existence of something. Otherwise anyone could interpret the silence of courts to be evidence of fictional rights: I contend that Americans have a constitutional right to have free trips to the moon. The courts haven’t said that such a right doesn’t exist, therefore it does.
Name some cases where the courts have set limits on the other two branches on how military force (as in killing people, as opposed to detention or military justice) may be used.
I can’t think of one case where the courts have stopped any order for the military to attack anyone, and I’m aware of plenty of lawsuits that asked the courts to do that.
You know the answer to these questions, Why do you ask them? Do you think you’re making some kind of point?
The ruling in the OP was about FOIA and transparency in government, and the Awlaki case was dismissed for lack of justicibility. Neither says anything about the due process clause not applying to enemy combatants. They don’t even come close to it.
You’re grasping at straws here.
That’s not true. You have Quirin, you have Boudemine, you have Hamdi, you have Youngstown Steel. The Supreme Court has repeatedly ruled that there are limits to the President’s authority, even in times of war. You simply just ignore them.
No, the burden should be on the government to show they are allowed to kill a US citizen without trial. We already know that the President isn’t allowed to deny certain Constitutional protections to citizens, even if they are called “enemy combatants”. The killing without due process of one is pretty clearly more important than habeas.
Great. Make an argument. Cite to other cases (perhaps right to travel cases? Right to free stuff from the government cases?) and make logically coherent arguments from those cases. Because that’s what I am doing. What you, however, are doing is simply screaming “Nuh Uh!” over and over and over.
We know it is lawful to kill someone on a battlefield without a judicial determination that this individual is an enemy combatant. There may be specific determinations that a solider must make about the person, but those determinations need only be made by that soldier to make the act lawful.
It follows that the constitutional question is what constitutional limits there are, if any, on what the Executive and/or Congress may declare to be such a battlefield.
You’re the one saying there is a justiciable principle to be applied by the courts concerning this question, in contrast to the Courts saying the question is not justiciable. It is therefore on you to identify the principle, isn’t it?
I haven’t even touched on the justiciability issue, other than to condemn both Bush and Obama for refusing to allow their interpretations of the Constitution to be challenged in court.
What I have been doing is arguing that the due process clause (and the 4th amendment) forbids the President from ordering the killing of a US citizen without due process. And I’ve repeatedly put forth caselaw, arguments, and example to prove that very thing. By all means, if you have some caselaw you wish to add on that issue, I’m more than willing to be educated.
Look, I’m not so touched as to think that the Supreme Court is going to find the Al Awlaki killing to be a violation of due process. But I will argue that underlying issue. The justicibility or not of it doesn’t change that.
I will note, however, that in Holder’s defense of the Al Awlaki killing, even he admits that Al Awlaki had some Constitutional rights, something that Ravenman has not even admitted (nor even gotten close to rebutting).:
“Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.”
Holder admits that the due process clause applies, but argues that the administration gave Al Awlaki due process.
Of course, he’s unwilling to actually support that argument in court or inform the American people of the decisionmaking. Baby steps, I guess.
The only decision made was by the President, and yes, oddly enough, he determined that the due process clause does apply, that he gave Al Awlaki due process, and then he killed him. That’s the only “extant” decision we have. If you believe that is all that is necessary, and that that any discussion that the President’s decision is wrong is wasted, and you hold to that belief elsewhere, I suspect your posting numbers and topics will greatly decrease.
I agree with the outcome of every one of those cases. But none of them relate to making the military check with courts before launching an attack. Judicial oversight of judicial matters (like habeas) or on the economy (nationalizing a steel mill) are totally constitutionally different than the war power. Bush was wrong to say that the war power of Congress and the Executive extends to detention, but the war powers of those branches most certainly extend to the actual conduct of war.
You have cited cases? Ha! You haven’t cited one case where the courts ruled on an issue of how the military may use force. You extrapolate from cases concerning detention, which is not the same issue as actual, honest to god use of military force.
The courts will never get involved in the command of direction of military operations. There is a litany of cases showing this, including the lawsuits which tried to stop the wars in Iraq and Kosovo, to name just two recent examples. The conduct of war is a matter between the two branches with the war power as vested by the Constitution, and not the courts.
Wrong. I’ve said in previous threads that Congress authorizing the use of military force satisfies due process for any enemy covered by that authority to conduct war. In this thread, I’ve attacked your notion that the text of the Fifth Amendment is without caveat. Clearly, the Fifth Amendment is not absolute as it pertains to various combinations of facts relating to citizenship, geography, and war, even though the text of the amendment makes no such exceptions.
Forgive me if I haven’t followed all of the citations you’ve offered. But in this thread, I’ve only seen cases addressing detention and trial. Is it your contention that if due process applies to how we treat someone we’ve captured then it must apply to killing someone we have not captured?
If that’s your contention, I haven’t seen your argument to support it. If that is not your contention, then I fail to see the relevance of those cases.
I realize this thread is about whether the Administration should have to reveal its legal justification. But I am more interested in the question of what we think the law ought to be. And what I’m unclear on is whether you have proposed a justiciable principle for distinguishing between the lawful use of force against Al-Awlaki if he were in Afghanistan versus when he is in Yemen. (Here I’m using justiciable in the sense used in political question doctrine–i.e., capable of being fairly and objectively applied by the judiciary as opposed to demanding policy-based discretion.)
And you’ve offered no case to support that. Whereas I have offered numerous cases where operations done by the military (the detention cases) or pursuant to war (Steel Seizure cases) are limited by the Constitution. And I’ve offered the opinion of the current AG who allowed the extra judicial killing to occur, saying that the due process clause does apply in such cases. So we’re back to your “Nuh Uh!” form of argument which, to be honest, I have no further patience for.
Not must, but does. Which is one of the reasons I raised the Tennesse v. Garner deadly force issue, to illustrate when the due process clause is not implicated in killing someone we have not captured.
I’ve offered cases that hold that certain Constitutional provisions apply to enemy combatants, even those who are not US citizens. If you think the act of killing someone is somehow less constitutionally invasive than detaining them, I think you’re the one who needs to offer some counter-evidence to that claim. I’ve also offered Holder’s statements about the killing, which includes statements showing his belief that the due process clause applies to US citizens even if they are called enemy combatants. I’m not so sure I see how you can simply hand wave those away.
I’m on board with Holder’s feelings that the due process clause applies to US citizens, even if we call them “enemy combatants” and they are in foreign lands. I’m just not sure his decision and rationale for determining that Awlaki received due process is right or not. Because he refuses to test it in court, or show it to the American people.
I suppose we could simply trust him, but I’m not so sure that’s the best plan.
I don’t follow. If he were in Afghanistan, he would be likely be in an area involved in combat military operations. That’s the combat battlefield exception Grumann and I were discussing earlier. I do not think the AUMF is so expansive as to allow the President to take any action anywhere in the world without regard to the Constitution.
I can’t cite court cases on due process in military operations because it is obvious to me that courts will never rule on the substance. Asking to cite precident on this question is no different than asking me to find a Kosher food critic who picks the best ham and cheese sandwich in town: it isn’t going to happen.
It is my view that whatever due process that enemies of the United States are entitled to is satisfied by the lawful authorization and execution of the war powers. The judiciary has no role in the conduct of war, and there is indeed plenty of precedent of the courts refusing to rule on the core matters of the war power, that is, how the Executive and Congress exercise their specific constitutional war powers. Do you need cites for those cases?
Consider the following scenario: A mentally ill man is pointing a pistol at a police officer’s head. The police officer does not think he can disarm the man without risking his own life. He could legally shoot the man dead. But because the man is a family friend and beloved war hero, he decided to risk disarming him. He is successful. At this point, he may not shoot the man. Indeed, he is obligated to detain him and give him a full judicial trial.
It is also true that if the officer knows the gun is just a toy, he is not allowed the kill the man. He is obligated to perform some assessment of the threat before shooting him.
Now, how can that be so? How is it possible that the police officer was entitled to shoot the man in the head based on the officer’s own process without any judicial approval, but if he captured the man, the man suddenly gained manifold rights of judicial process? The answer, of course, is that the due process to which one is entitled is different before and after you’ve been safely captured and are no longer an imminent threat. Before you are captured, due process is limited to a non-judicial assessment that you satisfy certain conditions that justify your death. After you are safely captured, the concerns are quite different.
There’s two questions there. How broad in the AUMF? And how broad can it be, constitutionally? Our argument really concerns the second. You’re saying it would be unconstitutional for the AUMF to authorize the President to kill enemy combatants in, say, Somalia. I don’t see why that should be true.
Which is why I said earlier: “Now, if the President has a reasonable belief that a US citizen is an imminent danger of death or serious physical injury, I’d support that.” If Obama came out and said: “Well, when I bombed Al Awlaki (and his son, and some other people), he had a gun pointed at a person’s head, so I killed him because I had a reasonable belief that he posed an imminent danger of death or serious physical injury to another person”, after I got done laughing, I’d say “alrighty then”. The deadly use of force in those situations is a widely accepted exception in constitutional law. The combat battlefield is also a widely accepted exception in law. There is no such widely accepted exception (unless you want to really push the definitions on imminence and combat battlefield to the point where they don’t mean anything anymore) for Al Awlaki. These exceptions do not apply to Al Awlaki. And, contrary to Ravenman’s assertions, the existence of these exceptions do not disprove the rule.
I’m not saying that at all. I’m saying that the AUMF doesn’t stop the Constitution from applying. If your enemy combatants in Somalia are Al Qaeda members, by all means, kill away pursuant to the AUMF. But if those enemy combatants are US citizens, then the Constitution can limit what the President can do pursuant to the AUMF. And the due process clause applies (unless, as we previously discusssed, the combatants fit into the exceptions). Just as the AUMF is not so expansive as to allow the President to detain US citizens or even person in US territory, without some Constitutional protections, it is not so expansive to allow the President to kill US citizens without due process (unless, once again, it fits those exceptions we discussed).
No thanks, I have Hamdi, Hamdan, Steel Seizures, and the other cases I cited that already ruled that the President’s powers as Commander and Chief is not unlimited. But if you could find the time to actually read and understand them, that’d be a big help.