I thought I discussed this in post #78.
I don’t know why you’re harping on about this. I was responding to CitizenPained’s assertion that Al-Awlaki is a member of an enemy army. That said…
…well, we probably shouldn’t have done that, then. See how that works?
Not assassination of US citizens, as far as I know. But indefinite detentions without trial have been.
That’s precisely the argument Bush made in regards to Hamdi, Hamdan, and al-Marri. He didn’t win.
Roosevelt also dealt with US citizens who were “belligerents”. He tried in them in military tribunals, got the death penalty, had judicial review, and THEN he had them killed. In Re Quirin.
:smack:
Actually, the Constitution gives Congress the power to define and decide the punishment…but again, I argue he’s an enemy combatant (er, here, an unlawful combatant).
Um, well, SCOTUS has ruled on all of your arguments thus far regarding the 5th Amendment:
ahem
U.N., Congress, SCOTUS, and the American people provide plenty of oversight. He has a whole legal committee to advise him on matters of liberty and terrorism. The Constitution does not prohibit his actions since all of his reasoning is backed up by provisions in the Constitution, the intelligence teams that report to the President are Senate-confirmed…as we’ve hammered out on the boards, intelligence teams are independent enough that said information is verifiable…the guy isn’t exactly an unknown under a rock…what more do you want? To strip the President of all his powers during wartime? All executive privilege? He’s weak enough. 
You can’t just take one piece of American law, slap it on the President, cry foul, and call it a day. American law is more convoluted than that. Especially in regards to war.
AQ is not an enemy army? It is according to the United States. And he is a member of the enemy army according to said army and the United States. And the UN has recognized him as a terrorist.
Citation needed.
Did you just argue that the U.N. oversees the president of the U.S.?
Those people are all advisors appointed by the president (and not subject to Senate approval, unless I’m mistaken). Their job is essentially to find a way to legally justify what the president wants to do. That’s not a bad thing, but they’re not oversight in the sense most of the posters here are discussing. That’s how Bush’s legal advisors said things like ‘torture is fine:’ they returned the result they were picked to approve. Once their opinions were subjected to scrutiny by the courts, some of the results changed - which was already discussed upthread. “I’m sure his advisors are good” isn’t much of an argument.
The point I am making is, that just because someone is not part of an official army doesn’t mean we cannot treat them as belligerents.
In truth there is absolutely no basis in constitutional law for the argument that it is unconstitutional to assassinate an American citizen, period. The only limitations I have ever seen put on assassination have been imposed by Congress, not by the SCOTUS and not out of any constitutional interpretations.
During war, it has been not unheard of that the United States uses special forces, surgical airstrikes, and other such methods to attempt to kill individuals. Typically high value individuals who are leaders of the enemy. That is why many surgical strikes in the early days of the invasion of Iraq were targeted at Iraqi command centers and other locations in the hope that we might get Saddam Hussein.
Bringing up the court system and constitutional protections is **irrelevant. **The constitution’s protections and right to due process are clearly dealing with situations that are outside the scope of this discussion.
Do we have possession of al-Awlaki? Answer: No. Thus any constitutional habeas corpus concerns do not exist.
Are we attempting to sentence al-Awlaki without trial? Answer: No. Sentences are imposed by courts, he is not before a court.
Are we attempting to deprive al-Awlaki of due process? Answer: No. Depriving someone of due process means that we are attempting to deprive someone of life, liberty, or property without allowing them the chance to have the matter heard by a neutral party. (Depending on various circumstances that could mean a full criminal trial with a judge and jury or a military tribunal or etc.) The reason we aren’t depriving him of Due Process is nowhere in the history of the United States will you find a case in which the United States military or the President has been held to have violated an enemy combatants due process by killing them on the field of battle. This is because such action is entirely, absolutely, and irrevocably outside the realm of our legal system.
The power to wage war is the President’s, the power to determine what persons are valid targets of our war machine is the President’s. This even extends to persons inside the United States, and indeed it must, or otherwise the putting down of rebellions and insurrections would be impossible. As old as the United States itself almost, is the President waging war against his people. George Washington raised a militia for the purpose of doing war against people in western Pennsylvania who were in a state of armed rebellion against the United States. If those forces had met on the field of battle, no “due process” violations would have occurred had the forces of the United States gunned down the forces of the rebels.
Due Process instead must be seen for what it is, it is a protection against abuses by the state of individuals who the state is exercising legal control over. When we had Yaser Hamdi in a Naval Brig, he was an American citizen under our legal control. It was ruled unconstitutional to hold him without giving him any means to challenge his detention, it was a violation of his due process rights. We were not required to subject our military to such law suits during the American Civil War. American soldiers killing the enemy in battle were not exercising a form of legal “execution” when they killed their Confederate opponents, they were instead waging legal warfare against persons who happened to be also American citizens. That fact was irrelevant though, because the court system is not designed to govern military engagements, and such engagements are outside the purview of our court system.
Now, to address the more ludicrous hypothetical meanderings suggesting that Obama could then decide to send task forces into the homes of any American to snuff them out, I believe that all those centuries of constitutional law, and our system of government would protect us from such abuses. Firstly, any lawsuit stemming from such action, the court would not view it as a valid military action if Obama was just sending troops spuriously into American homes. Secondly, such abuses are why we have the system of impeachment, if Obama was launching drone attacks against homes of American citizens who were not involved in terrorism, Obama would be impeached.
If al-Awlaki is killed by an air strike or a strike team, and someone files suit against Obama I strongly believe it will go nowhere. The court will rule that it was a valid military action under Obama’s authority as C-in-C. To expect that the courts would view the same action if it happened in Reston, VA, is ludicrous. Courts don’t live in a bubble and nor are they ignorant of circumstance.
Even still, if we did have evidence al-Qaeda had set up some fortified compound inside the United States, and it was heavily defended, I do not doubt the President’s authority to essentially target it as a military instead of a civil police target. It would be entirely valid to launch a mortar shell into the building and lay waste to it.
While I’ve addressed the differences in my immediately prior post, the key difference is they were dealing with persons the United States government had in their possession and control.
The only analogous situations I can readily think of would probably come from the American Civil War. Were any American generals or soldiers ever prosecuted for due process violations for opening fire on Confederates without first attempting to put them to trial? There is a substantial difference in how we are expected to treat someone we have legal control and possession of (as we did with Hamdi) versus how our military is expected to treat someone on the field of battle. If Hamdi had been shot to death in Afghanistan on the field of battle, I doubt there would have been a court case at all.
I can’t decide which is funnier. You quoting the Constitution and calling it a ruling by the Supreme Court, your positing a factual inaccuracy (the Supreme Court hasn’t ruled on all my arguments, quite the opposite), or you contradicting yourself saying the law is convoluted, yet simply making baseless assertions.
Actually, none of them are funny. Which is why I’m done with you.
Again, my Constitution doesn’t have the “possession or control” exception in it. Nor the caselaw, quite the opposite. A fleeing felon is not 'in the possession or control" of the government, yet it is unconstitutional to shoot him unless there is probable cause to believe he’s a substantial and imminent threat. Due process doesn’t only apply to people who are “in the possession or control of the US government”, it applies to all citizens. I find it a huge stretch of logic to think that the US government would be forbidden from detaining someone, but not from assassinating them.
The only exception I am aware of is the idea of capture and/or killing on the battlefield. As I’ve pointed out, I don’t think the entire world counts as a “battlefield”. And I certainly don’t think that the US is a “battlefield”. But what you are advocating would allow the President to extrajudicially assassinate US citizens in the US on nothing more than his determination. I’m convinced that is not what the Constitution requires. AND it’s a really bad idea.
I think the Quirin case is analogous. US citizens, declared to be enemy combatants, put on trial in a military tribunal, with that trial reviewed by the judiciary. THEN, the US citizens are executed. AFTER the due process. The Civil War, an armed rebellion by states of the US, is monstrously different from one US citizen advocating terrorism against the US.
From the AUMF:
The key part as it would pertain to al-Awlaki would be “appropriate force against…organizations” since no one is asserting al-Awlaki as an individual planned 9/11, but it is determined he is part of al-Qaeda and al-Qaeda as an organization (and thus its members) is a valid target of military force under the AUMF.
Is there trouble with relying on the government making the determination? Sure. And I believe that any specific instances of abuse can be challenged in court. I do not believe anyone has successfully challenged al-Awlaki being placed by the President’s National Security Council on the list for CIA targeted killing. Since that is an action by the President or an entity within the Executive Office, it is entirely true that someone could file suit against that action. Has anyone? How have those cases been resolved?
There are many matters in war in which the President is given authority to make determinations. If someone feels those determinations are injurious to the rights of Americans, you can file suit.
Fleeing felon is not engage in warfare.
It isn’t, because as I’ve already said there is a material difference in how you must handle persons in your possession versus persons who are shooting at you. Name a court case in which the President or the United States military has been held to deny the due process of an American citizen who they kill on the field of battle. Since the last time I can remember us actually killing American citizens on the field of battle is the ACW, I guess you would have to go back to the 1860s-1870s. I am not aware of any such cases.
You’re right, to an extent; the suit will be dismissed for lack of standing.
Al-Awlaki is not shooting at us.
The “possession or control” bit is obvious and entirely based on natural logic.
How can my right to due process be violated if I am not under the possession or control of the United States government? I guess if I was a terrorist leader in Yemen and you confiscated my property here in the United States without due process, then that would be a violation. However to contest it I would probably have to come to the United States and file suit, which I would not wish to do as a terrorist leader.
In re Fleeing Felons, Tennessee v. Garner actually considers killing a fleeing felon a seizure, and its ruling in that case was based on the Fourth Amendment’s protection against unreasonable seizures without a warrant. So it actually is irrelevant to the issue of 5th Amendment Due Process concerns.
Neither was Yamamoto.
Neither were all the dead Germans and Japanese we bombed in strategic air raids.
If you get blown up by a Predator strike, you’re in the control of the United States government. Not jurisdiction, maybe, but that’s quite a bit of control.
ETA: All of those people were military combatants. Why is this so difficult for you?
Because the military acts on behalf of the government. Is this that complicated?
Alright, then please provide a citation demonstrating that the United States Military or the President has ever been held to have violated the Due Process Rights of an enemy combatant they have killed.
And so is al-Awlaki. At least to the same degree as Yamamoto. Yamamoto wasn’t shooting at anyone, he was a military leader. al-Awlaki is a regional commander of al-Qaeda, and captured terrorists have admitted he trained them. If Yamamoto was a military combatant, so is al-Awlaki.