Attorney General Eric Holder gave a speech today where he outlined how and why it was okay, in the legal sense, for the US government to murder an American.
My initial reaction when this occurred has not been supplanted yet by a warm fuzzy feeling that it was either legal or morally correct.
I don’t dispute that al-Awlaki was saying the things he was saying, or that he wanted Americans to die. But I can’t help but feel that this was wrong to do. As far as I know, al-Awlaki himself never took up arms against the US, he just spoke publicly about how evil he thought the US was, etc.
The whole point of it seems to be saying “if using the legal system of the US would be too cumbersome, we’ll just ignore it and kill whomever, even if they are our own citizens”.
So, the topic for this debate is: is the set of justifications given, both here by Holder and elsewhere by whoever, just so much bullshit? I mean both legally and morally, so no hiding behind obtuse readings of paraphrases of legal statutes: is this type of action defensible and proper for a civilized nation to engage in?
If in fact all three were met I think the argument has some merit.
That said there was absolutly no reason they couldn’t have shoved OBL on a chopper annd flown his ass out. How you feel about that may be another topic.
I haven’t had time to give Holder’s comments anything more than a cursory glance, but it seems like he accepts the concept that the Due Process Clause of the US Constitution applies to persons like Al-Awlaki (although he never mentions Al-Awlaki by name that I could tell):
"Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. 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."
and
"The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen."
However, he concludes that Al-Awlaki was afforded all the Due Process that is required. He seems to reject the concept of judicial oversight of the decision, but accepts that it should be used in cases where there is an “imminent threat.”
My, again very brief, reaction is that, no, it’s not bullshit, but yes, it isn’t correct either. I was heartened to see him address many issues positively (the application of the Due Process Clause, the distinction between this and the “traditional battlefield”, and the necessity of an "imminent threat’), but the gaping hole remains his refusal to actually test his reasoning in a court of law or with legislation specific to this purpose. I find it very telling that he’s taking his case to the people rather than testing his legal reasoning in a court of law.
How is that supposed to work? As I understand it, since the very beginning of the country, the US court system has refused to issue advisory opinions, and have strictly limited their powers to actual disputes – like, where there is a plaintiff and defendant. The Executive Branch cannot simply ask the Supreme Court, “So here’s what we’re thinking on the law of war and civil rights… You okay with this?”
The one case I’m aware of, in which al-Awlaki’s father sought an injunction on his son’s behalf, the courts came down pretty squarely on the government’s side that the courts had no role in second-guessing the President in how he carries out the use of the military force pursuant to a congressional authorization.
Had Holder (and by extension Obama) believed his legal opinion could stand up to legal scrutiny in court, he simply could have allowed the court in the Al Awlaki case to reach the merits of the case rather than relying on the standing or justiciability issues that it did. He could also stop hiding behind state secrets doctrine in the FOIA cases pending about the same issues.
IIRC, you had asserted in one of those prior threads, that Al Awlaki was not entitled to any due process rights whatsoever. Has Holder’s statements swayed your opinion on that issue at all?
I don’t believe, as a general rule, that courts have a role in the conduct of war as you suggest they should. In that way, I think the key matter of the case was addressed.
I think I said something along the lines of carrying out the authorization for the use of military force is the due process. I’ll look that up when I’m at a desktop rather than an iPhone. So, I’m pretty much in agreement with Holder.
I don’t think I made an assertion re: human rights of a citizen vs. a non-citizen. But I do think there is a difference between the two, for example, when talking about violating the laws of the US while not in the US. As this is really a sidetrack of the main topic of the thread, tho, I’m willing to let the subject drop at the moment, as it seems you are also.
Even when there is a plaintiff, from what I have heard the US courts have been refusing to hear the cases. It’s not just Al-Awlaki’s father’s attempt to not have his son murdered - there have also been a number of innocent Gitmo detainees who have tried and failed to have their cases heard after they were released.
Let me help. One of our exchanges ended with this post. While the wager we made in that post only concerned whether a court would rule about the due process issue, I’m comforted by the fact that apparently Holder concedes that point, which would have meant both sides agreed on it and the court wouldn’t have even ruled on the issue. I think I’ll call that a win for me.
I’m quite sure my intent in that post was to have used the term “due process” in the same manner as Holder used the term “judicial process,” only I was not prescient enough to distinguish between those terms.
And it is abundantly clear that Holder is not using the term due process in the same way that you are using it: you have argued that an American cannot have due process unless his case is heard by a court. Holder actually said,
Is there some daylight between what Holder and I argued? I’d say yes, that when we debated this six months ago, and also when we debated this almost a year ago, the train of argument that I used did not travel down the same tracks as Holder laid out in his speech. However, we both arrived at the same destination: the courts have no role in determining who may be targeted in this war.
That is the opposite of what you’re saying. Sure, I will concede that one aspect of Holder’s speech seems to coincide more with your reasoning than mine, but does that mean that you now agree with Holder that due process still does not require the President to consult a court before targeting an American combatant for killing?
In any case, if you want to declare victory because Holder made a speech that says the killing of al-Awlaki is perfectly legal, I will continue to scratch my head at how you assert black to be white, up to be down, and the non-consultation with courts to be the guarantee of the Fifth Amendment. If you want, I will buy you that case of beer, and have no idea why you declared victory.
There is an argument to be made that taking up arms against the USA forfeits Constitutional protections. I can see the logic behind that, but it’s a really gray area.