I thought we were trying to determine if it was unconstitutional.
I think that we’re sort of discussing different things here. You seem to think I’m talking about “possession and control” as though it is some kind of loophole. Instead, I’m simply saying that as part of the valid war making powers of the Presidency the President of the United States can conduct military operations against entities (governments, illegal organizations) as authorized by Congress through a formal declaration of war or through the pseudo-declarations we’ve become accustomed to since the 1950s.
Part of making war is killing the enemy. Sometimes via direct, large scale military action (traditional battles), sometimes via indirect methods (aerial bombardment, long range missile strikes, even blockading their supply routes to starve them out), and even sometimes by “personal” methods such as targeting individual leaders of the enemy. I’ve always held that in war, military leadership all the way up to the top guy (even if he’s a political leader) are valid targets in war.
Let us then suppose that we are still using technology from the year 1800. Let us suppose a mythical island nation off the Atlantic coast of the United States–Atlantis even, declares war on the United States. Let us suppose that a large contingent of American soldiers, say 4,000-5,000 defect and join the Atlantean military.
Since we are using early 19th century military tactics, let us suppose that the President orders the military to head north from D.C. to engage the enemy, who have made land fall. It is known that the 4-5,000 defectors are part of the enemy force. When it comes to the battle, is the President of the United States violating the due process rights of those 4,000-5,000 Americans by ordering the military of the United States to go forth and do battle with a force he knows they are part of and where he knows some of them will be killed? In a Napoleonic-war era battle, with massed formations, lines of battle and etc. it just is not possible to meaningfully distinguish between individual enemies.
Is the General of our forces required to send an envoy over and give our defectors a change to surrender before the battle breaks out?
I would argue the President would absolutely not be violating the due process rights of any American defectors killed on the battlefield that day. He would not be required to have our General offer them amnesty prior to the engagement.
Why? Well, because at that moment in time they are two things. They are American citizens entitled to certain rights and privileges. They are also belligerents engaged in warfare against the United States. When using his war making power the President is fully within his constitutional bounds to levy war against belligerents making war against the United States. When using his war making power the status of the enemy as enemy combatants overrides any other status they may hold. You can talk about what you “don’t see” in the constitution all you want. I know that the constitution has never been held to require the President attempts to effect arrests of belligerents waging war against the United States. The entire history of the American Civil War is a massive mountain of actual proof of this fact–and the fact that their status as American citizens is wholly irrelevant.
Possession and control becomes important because, while belligerent status overrides all other concerns, if **by happenstance **we come into possession and control of an American citizen they need to be treated as such.
You are drawing distinctions that I simply refuse to accept as real. Anwar al-Awlaki is on the battlefield, he put himself there by becoming a commander in al-Qaeda, he put himself there by training terrorists. He is a belligerent against the United States, he became one by becoming a member of al-Qaeda. As long as he is on the battlefield and as long as he is a member of al-Qaeda he is just as valid a military target as the hypothetical American defectors I spoke about above, just as valid as the Confederate soldiers in every single engagement in the American Civil War. The fact that he isn’t lined up in neat rows with thousands like him is irrelevant.
Come talk to me when someone turns him over to us or he surrenders–in such a scenario I will advocate for his due process rights. However, do not act as though the constitution is on your side on this one. The constitution has empowered the President to levy war against rebellious citizens since the beginning of our country. I’m sorry you don’t find the words you need in the constitution to show you that I am right. But I’ll point to the Whiskey Rebellion which happened during the administration of George Washington. Washington raised an army to put the rebellion down, he didn’t go after them with arrest warrants. Luckily when he sent nearly 13,000 soldiers into western PA (one of the largest American armies up to that point–even larger than most of the forces we had during the revolution) the rebels realized it was time to go home. However if they had not, and had foolishly arranged themselves for battle against this force, then they would have been proceeded against as an enemy army. That means many of them would have been shot and killed with no “due process”, because due process is not part of active combat, regardless of whether the belligerents might or might not be citizens of the United States outside of the field of battle. After the rebels dispersed, U.S. Marshals arrested some of the leaders and they were put on trial–when the situation had moved to a point where regular law enforcement could do its job, and that is entirely appropriate. The moment Anwar al-Awlaki is in a place where an ordinary team of U.S. Marshals can apprehend him, I will agree that would be preferable and should be done instead of overt military action.
Finally on the issue of “assassination.” An assassination of a political leader of a country or entity with which we are not at war is a whole other animal. I don’t believe you can “assassinate” a military leader. If we had somehow found a way to kill Hitler during WWII that would not have been an assassination. If Hitler’s own men had successfully carried out their plot against him, that would be an assassination. The context is important on that one. I don’t believe that when a military is waging war that the targeted killing of the enemy’s leadership should be considered an assassination, for that reason I do not look at the killing of Anwar al-Awlaki if it were to happen, as a true assassination even though I understand many persons will use that term out of the sake of convenience.
I have no idea what you’re saying here. Is your argument that Congress is exercising oversight on the al-Awlaki matter because some representatives were briefed about the bin Laden raid and didn’t tell anyone?
Things can be legal and yet essentially unconstitutional. The problem here is that Al-Awlaki is not about to show up and challenge his status as an enemy combatant, or whatever they’re calling him, and if he does the rules change anyway.
During the Civil War General Sherman noticed in the distance there was a group of Confederate officers. He immediately ordered a mortar team nearby to open fire on them, they did and among others it killed Confederate Lt. General Leonidas Polk (2nd cousin of President Polk.) Should Sherman have been arrested for violating due process?
How about all the property he expropriated for his troops during his march to the sea? While we’re talking about due process.
I’d be fine with a formal definition of battlefield to better clarify our actions. However sans one, I do not think the assumption must then be “nowhere is a battlefield and everyone must be arrested first.” Because you can’t fight a war that way. I know people don’t like the comparisons, but I’ll bring up the Civil War again because it’s a huge historical example of us using our military to wage war against other American citizens. While yes, it was 175 years, and yes, it’s different than our current situation, the lessons still apply. We have the same constitution then as we do now, sans about 14 amendments or so. In that war no one’s due process was violated and thousands of American citizens were killed directly by our military.
If I was to define battlefield it would essentially be:
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Any location where active U.S. military personnel are deployed in an active combat role. (Which immediately means all of Afghanistan–but not Germany and South Korea, we are not in combat there, and it means you do not have to debate which parts of Afghanistan are a battlefield and which aren’t.)
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Any location where the President, with approval from the Senate Select Committee on Intelligence has determined, in consultation with military, intelligence, and law enforcement leadership (i.e. Director of the CIA, FBI, and the Joint Chiefs) that regular law enforcement operations are not possible. That would exclude essentially the entirety of the continental United States, any location in Western Europe, Japan, Australia, New Zealand and a long list of other countries.
That’s how I would do it anyway.
This is bullseye. Terrorism is poorly covered by the laws of war per the Geneva Convention, although if I’m not mistaken there’s the concept of illegal combatant, e.g. a combatant that breaks the laws of war. Such a person can then be judged in civil court in the country that apprehended him, and his actions are interpreted as the acts of a criminal and not a soldier; killing an enemy is considered murder. The Bush administration of course famously invented their own made up combatant category, exclusively for terrorists, where neither civil law nor the Geneva Conventions applied, thus justifying torture and endless detention without trial. IOW your door number 3.
The Clinton and Obama administrations I believe have been pretty consistent in treating terrorists by the laws of war (in other words shoot on sight) until they surrender themselves. At that point they are tried as civilians, or illegal combatants. That policy is perfectly reasonable under both U.S. law and international law. The only exception being when congress took away Obama’s funding for ending detention in Guantanamo and trying the terrorists in civilian U.S. courts. Left with no options he pivoted to instead treating them as soldiers and trying them before a military tribunal in Guantanamo.
So, if Al-Awlaki is to be considered a combatant, it is perfectly lawful (under Geneva) for the U.S. to bomb him. But how do you prove that an enemy soldier is an enemy soldier? In a civilian court we would never consider it proven that someone was a nazi soldier just by showing a picture of him in a nazi wehrmacht uniform. But in a state of war that level of proof is considered acceptable. A terrorist of course does usually not wear a uniform. We could require that he was directly involved in hostile activities. But a General often stays far from the battlefield and we consider it acceptable to kill generals (unless they surrender). So it’s not easy with someone like Al-Awlaki who might have been a general if Al Qaeda was a regular army.
Anyhow, Bill Clinton had no problem whatsoever to send 67 cruise missiles after Bin Laden in 98. It is therefore long standing U.S. policy to consider terrorists combatants, whether or not it was proven in any court of law that they were involved in any terror attack.
Going after Al-Awlaki is nothing new. The fact that he is an american citizen is just as irrelevant as the birth country of a soldier fighting for the wehrmacht. But option 3, the Bush option, that was new when they introduced it. It was, is, and should be very controversial. I’m glad Obama has discarded that and moved back to Clinton policy, even if Guantanamo became and to some extent remains a bump in the road.
Well, we could swear out a search warrant on weapons charges and have the BATF and the FBI serve him, like they did with David Koresh and the Branch Davidiansin Waco, Texas in 1993. After a raid on the compound which left four agents and six Davidians dead, they mounted a two-month-long siege. When they tired of waiting for Koresh and his followers to surrender, they sent in a full-scale military assault, with numerous agents, tanks (Combat Engineering Vehicles, CEVs) and 0.50-caliber arms. When it was over, fifty adult Davidians (men and women) and 25 children under 15 had been killed.
This was done with the full knowledge and consent of the POTUS, who ordered the assault in response to the urging of US Attorney General Janet Reno.
But I am certain that none of the Davidians’ Due Process Rights had been violated, because…
Help me out here, I’m drawing a blank.
I think this is a gross misrepresentation of the ruling. The Al Awlaki case was more about what the judiciary does than what the President does. It didn’t “weigh in on the matter”; it didn’t reach the merits of the claim, it simply said it was non-justiciable, a state secret, and his father didn’t have standing. The ruling came down “on the side of the President and Congress” because they argued the judiciary couldn’t handle it. And the ruling only came down on the side of the “law” if the only law you’re concerned about are standing, state secret’s doctrine, and the Alien Tort Claim Statute. The interests of enemy combatants weren’t taken into account (my favorite part of the ruling was where the judge said that the THREAT of being assassinated wasn’t enough for the ATS, there would have to be an ACTUAL assassination). It was a victory for a secret program to assassinate US citizens and a limited judiciary, not for the law. ,
That’s pretty uncontested. Of course the President can, as part of his war making powers, make war and kill the enemy. But that war making power is not without limits. And one such limit can be the fourth and fifth amendments.
I would much rather not, instead, let’s talk about reality. The reality of a secret program to assassinate US citizens based only on the say so of the President. Let’s talk about the thread topic, not irrelevant hypotheticals.
As I’ve said, over and over, if they are on the battlefield or a imminent and serious threat, no he wouldn’t have to.
I understand that you don’t accept my arguments. I will somehow go on though.
The “battlefield” is then the world. And you must accept, though you seem not to willing to say it, that the President has the power to engage in “targeted killings” (does that word somehow make you feel better about what is going on?) of US citizens, even on US soil. To me, giving one man the power to kill a US citizen without due process or judicial oversight is reprehensible.
It’s worse to go around assassinating people who are neither your citizens nor residing in your jurisdiction, I would think.
Last year, I tried listening to some al-Awlaki podcasts. I found them dull, & didn’t continue. But from what I heard, if this guy’s preaching earns a death sentence, I suppose so does every fifth preacher, youth minister, & Bible college professor between North Carolina and Wyoming.
Actually, if those preachers are drumming up support for war in defense of their homeland, which is as belligerent a thing as I heard al-Awlaki say, some might think they do. But you’re deep into moral irony there.
I think we’re pretty much in agreement. Where I depart from Hamlet is that I agree that lacking action from Congress, the president should be able to consider a place like Yemen to be “the battlefield”.
Let’s face the fact here. Congress has abdicated much of its power to the executive branch, especially when it comes to issues of war. As much as I don’t like that, I have to admit that train has left the station.
How so?
You have argued many times in this, and prior, threads that the 4th Amendment and 5th Amendment protect an American citizen overseas who is engaged in hostile actions against the United States, when there is no intervening cause for immediate self-defense (e.g., he isn’t pointing a gun at someone at that moment).
Since the court found not only that al Alakwi’s father lacked standing, but also that the courts had no role in these types of war powers issues. It shows there is no remedy for a 4th or 5th Amendment claim, which indicates to me that there is no 4th or 5th Amendment right at issue. This is a matter of war powers, not the Bill of Rights.
You are aware that Congress wrote the National Security Act which requires exactly this sort of consultation, right? So Congress writes the law that requires certain actions by the Executive in order so the appropriate committees can do their oversight jobs, the Executive fulfills those requirements… and your response seems to indicate that you don’t think Congress is competent to make decisions about what kind of notifications it wants in order to do its oversight.
Judging by the news stories, it seems that Congress understood that a state secret had to be kept to a small number of overseers in order to protect the secrecy; and Congress, as a body, strongly approved of the raid. (See the Senate’s 97-0 vote on a resolution commending the President for ordering it.)
You’re the one who brought up the issue of notification. That’s not what is in dispute.
Again, so what?
And a third time. Yes, killing bin Laden was politically popular and Congress passed a meaningless resolution supporting it. Surprise!
My comment wasn’t “the president failed to notify Congress about the bin Laden raid as required by the National Security Act.” I said Congress is not exercising oversight into the assassination concept (although I hesitate to describe the bin Laden killing that way) by requiring any particular definition of who is fair game and who isn’t. Your reply seems to be that Congress doesn’t want to do anything on the issue, or as John Mace said, that they’ve abdicated this power. Which doesn’t refute what I said.
Again, the court didn’t reach the merits of the case, it was dismissed for lack of standing and under the state secrets doctrine. The fact the judiciary refused to hear the case on the merits does not mean the arguments were wrong. Your comments that the ruling were mis-representations of the ruling.
What’s so secret about the program? The known “assassin” list has been out for years - before President Obama even took office. I hate calling it an assassination, though, because that implies some kind of political target.
The government (and all its various departments and branches) have drawn some lines in the sand. When a man from a sleeper cell outside of Brooklyn (who is a citizen) is arrested, he’s afforded due process (eventually - the court has seemed to err in this logic). It’s reasonable. When someone outside of the U.S. has their hands an inch away from the metaphorical detonate button, there’s no more line. There’s no Constitution, there’s no rules of war, there’s no Geneva Convention. There’s an imminent threat. Fortunately, the major legal bodies of the world recognize that.
How many of us (I was one of them!) lambasted the Clinton and Bush administrations for their failures to protect us? I was angry. I am nowhere near what the victims of 9/11 suffered (or their families) but wondering if my dad was alive or not for 18 hours was enough. I’m sure most of us were affected. It was not our proudest moment as a nation.
I definitely didn’t appreciate suffering miserably at home while my first boyfriend went off to fight in two wars. I’ve probably protested in 30,000 different ways against administrative policy over the last ten years. I organized rallies, I supported Howard Dean, I marched across the White House lawn, I wrote a dozen letters to the editor, whatever. If I hadn’t lived in Iowa, it may not have mattered much. thank you, iowa caucuses
But this ‘assassination’ issue? It’s not an issue. It seems reasonable. For once.
I totally understand the reasoning behind seeking out OSL and killing him. It does feel right, even if it doesn’t make a huge tactical difference. I wouldn’t have minded a trial, but I can understand how that wasn’t possible. Actually, the Saddam trial was enough media muck for my lifetime.
But when it comes to killing aA, it gives me pause. This is supposed to be one of our guys! Right? Except…he’s not. He’s the guy with the metaphorical red phone. And when it comes to my family, my child, my friends, and my country - if it means his life over their safety - then do it. It’s irresponsible not to. A leader that can’t make that judgment call needs to be out of office. A leader that doesn’t hesitate first should likewise be out of office.
If it turns out that the Obama Administration has pulled the wool over our eyes, I’ll be the first to demand an impeachment. Impeach them both. Indict his Security Council and everyone involved.
The Court couldn’t hear the case because the people bringing it had no grounds to. He’s not exactly incorrect – the Courts can’t hear an abortion case brought on by me because I don’t like a law in some other state. That’s not the job of the Court. So until he sends his own attorney, there’s nothing they can do about it. It isn’t their job to legislate or pass moral judgment on governmental affairs.
Again, if Congress wants to hold some hearings - great. Except for a few squeaks, I haven’t heard much. It seems that the people who are the most angry are folks at Salon or maybe DKos or some such. I’m not advocating tyranny of the majority here, but I also don’t see how this violates the laws of the land. I’m also 300 per cent positive that the SCOTUS either a.) doesn’t have the power or b.) wouldn’t rule against the President anyway.
Again…Congressional oversight. If you’re so mad, why don’t you do something?
What does it matter? The OP apparently didn’t know about it. That doesn’t turn it into a non-issue.
There’s a legit concern here, but making up metaphors about buttons doesn’t help. Al-Awlaki is a terrorist and encourages terrorism. He’s said to have communicated with the Fort Hood shooter, two of the September 11th hijackers, and the underwear bomber. That’s more than enough to make him a terrorist, but I don’t know that he is ordering anything as opposed to encouraging it, so I’m dubious of the metaphor here. It does mean he shouldn’t be left alone just because he would be very difficult to arrest, but it doesn’t mean it’s so urgent that the government can’t possibly be bothered with the Constitution.
That’s off topic. Nobody’s asking Obama to “not protect us.”
And you say this based on…
I’m not sure about that.
Sorry, but I got burned out on this kind of nonsense early in the Bush administration. What it boils down to is ‘I’m too scared to care about limits on the government’s power.’
I understand and agree with your reasoning, to some extent, but it all seems to be based on a faulty premise. There is no “metaphorical detonate button” or imminent threat. He’s not Dr. Evil; he’s some beardy guy hanging out in a yurt.
ETA: Granted, he’s a very unpleasant beardy guy who probably wants to kill all of us, but that doesn’t equate to a beardy guy who wants to kill us and has the means to do so.