I’m feeling a bit guilty of over-commenting, but since you brought it up…
Gingrich was technically correct on this point. And the media slap is nice. But he is wrong on principal. There are Constitutional provisions about citizens making war against the U.S.A. No conviction of Treason was entered. Newt is making excuses for extra-Constitutional authority.
We all want to see Newt take down Barry, because y’all are (I’m guessing) of Newt’s heritage.
I would love, love to see Cain vs. Barry. In the subculture that Obama adopted and in which Cain lived, the senior preacher personality dominates. On topics of economics, culture and overcoming hardship, Cain would expose Obama as the thin reed he is. And that, shaking the assumptions of entitlement culture, mean more to me than scoring debate points with SWPLs.
Apprehending traitors/citizen enemy combatants is not a capture alive only proposition. The idea is to stop those persons in any manner possible and necessary. Wanted – Dead or Alive is not just an old tv series, it’s reality and the risk one takes to oppose by force of arms.
I am not an attorney, but it strikes me that there is a decided difference between treason (conspiring with the enemy) and actually bearing arms against one’s own country. If one renounced one’s own country to join with enemy forces that would clearly make a (former) citizen an enemy combatant. If one took up those arms and did NOT renounce citizenship for the purpose of gaming the system and accessing a citizen’s rights, would that really make a difference? Couldn’t the govt, by virtue of declaring a citizen an enemy comabtant essentially declare that citizen’s acces to rights null and void?
As to Cain and Newt v Obama. IMO Herman Cain could be a serious debate threat to Obama because he doesn’t play on Obama’s turf. Cain would argue from a perspective that Obama is not familiar with (facts on the ground and business experience) and thus, I think, limit Obama’s effectiveness to spout rhetorical points. Newt, on the other hand, actually bests Obama at Obama’s own game by piercing the sound-good rhetoric with devastating arguments.
I understand the idea, but the principle (and text) of the Constitution requires more process, in the open. I am asking that formal judgment of Treason be entered. Citizens are granted special protection. Some dude standing in Yemen is not an imminent threat.
And it is also not clear that the Executive has authority to enter foreign territory and kill anyone standing near the target. Was Awlaki’s citizen son also found guilty by secret trial?
Foxmarks,
Could you point me to the section of the constitutional text? I’d like to read it and form a more informed opinion.
Sadly, collateral damage happens in war so I don’t see the issue of someone standing near the target. Were the allies responsible for the innocent civilians killed in the fire-bombing of Dresden? Should those commanders have been brought to courts martial?
For a refreshing example of “piercing the sound-good rhetoric with devastating arguments” see Milton Friedman friendly defenestrate Phil Donahue.
I think they would have to give TOTUS an upgrade to keep up with Newt.
One doesn’t have to be an attorney to have the right ideas that protect America. To require that, is an idea of the left, an idea sponsored when the people did not rise up as Marx predicted. The torch then was given to a “vanguard” who would carry the “proper” ideas. A vangard, now, in America, protected by a debased and debauched legal class.
Schmucks. Putzes. Bastards!
Control the head, control the body. The only people who want communism are those monsters who hate people and want to enslave them.
Does right and wrong come from “smart” people? Not hardly. Look at the personal lives of the very influential “smart” people who changed our culture. Paul Johnson’s book, “Intellectuals” details some of them.
Curtis,
My non-attorney comment above was not meant to imply that one needs to be an attorney, it was only meant as full disclosure that there might well be certain legal precedents and principles with which I was not familiar and which might be germane to the argument.
Also, thanks for the Milton Friedman link.
T, there is no war. Yemen is not Dresden. Law revolves on details and formalities. The Federal government has found that inconvenient. The only difference between me and Awlaki is the whim of the executive (and a beard).
I find killing citizens without public trial to be a grave wrong. I am not a neocon. But, too, I accept that virtue is making the best available choice. Sometimes the best choice may be a grave moral wrong. I do not envy the men who must decide. And I remain hyper-vigilant against convenience over morality.
the answer lies in the creation of a new protocol empowering the courts to strip an individual of his citizenship on clearly specified grounds, including proven or admitted involvement in the planning and execution of terrorist activities.
Good point, T, and points to the importance of “an informed citizenry.” It always does well to reach back to history. The problem with our recent legal history is that its foundation in progressive jurisprudence makes it untrustworthy.
When the nascent United States fought against England for their independence and they had to fight against family and neighbors who were citizens, did they consider it a crime to kill them?
There’s a reach too far to consider Awlaki a mere “whim.” That is hyperbole. Now, if the information on Awlaki was fabricated and he was innocent of the various crimes of which he was convicted, then we need to purge the people who did that.
Curtis, show me the evidence by which Awlaki was executed. Show me the evidence by which his son was simultaneously executed. It seems the requirement for your assent is only a sustained media campaign, without cross-examination and findings of fact.
There were no citizens of the United States until 1789. The citizens of the Several States did not all enjoy the protections of a Constitution designed to set tight limits on government authority. Treason is set out in the 5th Amendment because of the grave moral (and physical) danger of an executive killing for convenience.
Under the current system we can never know if any of the evidence against Awlaki was suspect. I heard he made a move on Sharon Bialek, too.
“After the attack, al-Awlaki posted commentary on his blog praising Hasan’s actions and calling him his student and brother,” said the senior U.S. official.
Faisal Shahzad, who pled guilty to the Times Square car bombing attempt in the spring of 2010, also told interrogators that he was “inspired by” al-Awlaki.
By JOHN YOO
The Yemeni-American cleric killed by a U.S. drone strike on Friday was linked to the attempted bombing of a Northwest Airlines flight over Detroit in 2009, the shooting spree at Fort Hood in Texas that killed 13 that same year, and the near-miss car bombing of Times Square in 2010.
Foxmarks,
Please believe me when I say that I’m not a trigger-happy citizen. i also recognize the danger if our govt has the ability to gratuitously declare once citizen an “enemy of the state.” Ultimately, they could then declare me an enemy for the most inobtrusive infraction.
I submit, however, that your argument is one-sided. You counter Curtis by saying there were no citizens until 1789. OK, then, explain the killing of US citizens in the civil war. This is why war is problematic; the death and destruction are only the most obvious problems. IMO war as an act exists extralegally, beyond the structures of a civilized society.
The argument that you and I consider seems to be about where to draw that line. You seem willing to permit Dresden but want to disallow Yemen. You say that Yemen is not Dresden. It’s not? Any innocent victims are just as dead.
Curtis.
Foxmarks had to ask, didn’t he? I expect he’ll ask for classified intel next. Goalposts and whatnot.
Here’s the question: Given that Awlaki is shown to have been in arms against the US, what does being an American citizen get him that the Yemeni terrorist at the other end of the convoy doesn’t have? And why?
That Awlaki was in the desert in Yemen and so not an imminent threat…what kind of nonsense is that? What does he have to do to be an imminent threat? I know. Whatever he does does not qualify. If he does just one more thing… Oops. I meant one more after that.
Hell, OBL was not in the US at any time. Nor a bunch of other folks who have been a problem for us.
Foxmarks wrote “There are Constitutional provisions about citizens making war against the U.S.A.”
I wrote “Could you point me to the section of the constitutional text? I’d like to read it and form a more informed opinion.”
I’m still waiting . . . .
I’m glad that Foxmarks did ask. It shows a mind disciplined to look for precedent and legal authority, which is very good. And the fact that his many other posts bear witness to a good and noble mind must create context.
We’re facing an exception to the general international rule which keeps peace. And terrorists violated it first, so, now, were in a place between war and criminality and if we don’t keep our heads, we might destroy our own system from within. Therefore, keeping a vigil on our freedoms and allowing for as much freedom as possible while we put on the robes of war, is the challenge so that, when it is over, we may joyfully assume civil society.
T, I figured you were already versed in the Awlaki situation and either being a smartass or asking a rhetorical question. Google Awlaki and 5th Amendment if you need to.
In the War of Northern Aggression (don’t get me started on Lincoln’s abuses of power), Confederate States by the act of secession made their people no longer citizens under the U.S.A. The CSA at least had the honesty to call it war via formal process.
The line I draw is quite simple: A formal declaration of war, as specified in the Constitution. I find no exception to that requirement just because the counterparty is small in number or proficient with guerilla tactics. There’s no clause about not needing a declaration if the President is only planning to use a sliver of the arsenal.
Absent a declaration of war, give me some process. Get an AUMF, like Bush did. Enter a judgment of Treason like the Constitution calls for. Or strip citizenship first, as proposed in the column I quoted.
The quotes Curtis put up as evidence of Awlaki’s guilt are mere speech, and have not been tested in any public tribunal. If making war against the United States can arise from as little as some inflammatory rhetoric that some crazies take the wrong way, then we all are targets.
Seriously, y’all are submitting a report which uses the words “linked to” as evidence in support of killing somebody?
Richard Aubrey does some handwaving to dismiss the difference between citizen and non-citizen, and simultaneously fails to recognize that “imminent threat” is a test applied across the legal system, particularly regarding the use of deadly force. I propose he will be a better fellow if he stops arguing with the voices in his head.
At a broader level, if there are people that need killing, like Awlaki, let’s kill them and recognize that the act is not legal. Pretending it is “just fine, trust me” does no service to the ideal of a government of laws. The trial-by-jury system is a check against executive power (corrupted now by sovereign immunity). It is parallel to civilian killing. It is illegal, but the law offers an affirmative defense, the prosecution can decline to press, and a jury can find no true bill or declare not guilty.
If the threat was that grave and that imminent, somebody should be willing to stand accountable.
I watched most of the Republican debate on “Commander in Chief Issues” last night before the rotten CBS video froze part way through and, again, Newt had what I consider, by far, to have been the best and most informed, detailed, and specific answers, whereas Cain put in a poor performance, he delivered a lot of hesitations and generalities, Cain talking a lot about bringing in experts to make up for his deficiencies, but never really answering the real question, of how he would be able to decide between the alternatives these experts might offer, if he himself was deficient in his knowledge–as his hesitations, and answers, and mistaken terminology demonstrated– of the issue or country or policy in question.
Yet again the format was ridiculous, with candidates given only a minute to respond to “gotcha” questions on very complex issues and, in particular CBS “moderator” Scott Pelley very disrespectfully cutting off candidates attempted responses, talking over candidates, and presiding over the whole affair with an extremely irritating, supercilious, and smug expression on his face, and quite openly reflected in his attitude. Main moderator Pelley and a subordinate one from National Journal, also often setting up questions with dubious assumptions built into them, and frequently and abruptly jumping from one policy area to another
What a mess, and deliberately designed to destroy the Republican field of candidates.
Foxmarks,
Thanks for the response. For the record, if one is at all familiar with my commentary on this blog, one knows that I very, very rarely descend into being a smartass, and then, it’s usually provoked by an absurdity or a troll.
I don’t reject your argument out of hand. As I noted above, this is a very serious issue and needs to be considered from all points of view, including the argument you posit. As much as I want the govt to have the power to protect me from a foreign enemy, I also don’t want to extend to the govt the power to gratuitously identify ME as a foreign enemy without serious justification.
As I noted above, it is my belief that war is an extralegal act, outside the realm of the normal jurisprudence of any govt, and so the discusssion almost always falls to where and how we draw the line. The problem is complicated in the nuclear age because, now, even a single individual with a dirty bomb has the power to kill well beyond the limited scope of his/her own person. The waters have become even more muddled and the decision, i believe, even more difficult.
I am not convicted that the law concerning treason applies here. Treason is joining to an enemy, who, while hostile, still is a legal combatant. Terrorists are not legal combatants: their activity is a war crime by definition. So they belong to the same category as pirates, who should be killed on sight and not be brought to court of justice. They have no more legal rights than rabid dogs.
Sergey,
I think the comparison of terrorists with pirates is most fitting.
T, I thank you, too. I know you’re one of the regulars here that makes this a wonderful place for thoughtful disagreement. (Thanks, Neo!)
I agree that modern terrorism parallels piracy. I’ve made that argument trying to help libertarians find justification for some of the stuff the U.S. has done.
But then, let’s call them pirates, or make that status explicit by some public process. And taking out pirate sanctuaries on foreign soil I think still requires a declaration of war. Technology now allows attack without putting boots on the ground. It seems the attack is what constitutes an act of war, not the method.
And, wary of taking this thread even further afield, I hold that war has no rules. It is extra-legal indeed, and thus there are no war crimes. But governments of law still have limited powers.
What would you do? Cut a great road through the law to get after the Devil? … And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man’s laws, not God’s, and if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety’s sake!
Foxmarks,
If you posit that “It seems the attack is what constitutes an act of war, not the method,” then does it not follow that Al Quaeda attacked us with the Cole Bombing as well as 9/11? If so, isn’t the U.S. within it’s right of self-defense to counterattack against Al Quaeda? Now, AQ is not a country, it has no geographic border. So, in you estimation would it be equitable for the U.S. to pursue this committed enemy wherever it can find it and for as long as it takes? If that leads to the territory of another sovereign state, does that not make that state complicit (aiding and abetting, an accessory before the fact of a new attack or after the fact of 9/11)?
Your supposition seems grounded on a formal declaration of war, but by recognizing the ACT itself as a declaration you seem to admit that Al Quaeda has declared war in the U.S. with 9/11 just as the Japanese did with the unprovoked attack on pearl Harbor. If so, our pursuit of Al Quaeda would seem to be justified and authorized under your premise. I suspect I’m missing something here?
Well, it looks like Cain has dropped significantly according to a CNN poll. The smearing has done its work and that’s a tragedy. Each tea party candidate’s day in the sun–Bachman, Perry, and Cain–was only that: a day. The loss of Cain is going to viewed as regrettable, if indeed, that is what occurs. Who knows? But if that is what occurs, I think we will later see what an opportunity Cain represented to present a new role model. Was he weak enough in foreign policy knowledge to be disqualified? No. His principles of defense through strength and his firm belief in stealth jihad are enough for me.
Newt is a great politician (maybe not so much as a human being including that overload of gratuitous references to his wife Calista.) I downloaded, for free, the first chapter to his book. It’s a great, simple explication of America’s challenge. I also took note of his expression of faith in Catholicism. I did some research about his past scandals and saw, that like the rest, he was a target of media and progressive savagery. His potential for election, however, combined with his early stumbles, made it appear he didn’t have even a ghost of a chance. But that was before each champion was slain.
Now that Gingrich can be a champion and be valued for those qualities which have been lacking in the others, his biggest challenge will be himself.
Foxmarks,
Further, rereading your earlier post, you write “. . .A formal declaration of war, as specified in the Constitution. I find no exception to that requirement just because the counterparty is small in number or proficient with guerilla tactics.”
Yet this seems to me at odds with your later statement that it is the attack that constitutes the act of war. Please clarify.
Now I can understand if one argues that first, one declares war then one attacks., I also understand that such a position can coexist with the idea that an unprovoked attack also constitutes an act of war. If the unprovoked attack is the catalyst, I would offer that a formal declaration of war by the victim is unnecessary. One does not need to announce that one is defending themselves to do so (just as the castle doctrine permits deadly force vs older self defense laws which require the victim to retreat if possible).
Foxmarks.
You haven’t answered the question about why Awlaki gets a break in the convoy in Yemen when the Yemeni terrorist at the other end of the convoy does not. What about his citizenship makes the difference?
It could be a kind of squeamishness about attacking somebody whose name and antecedents and even face we know, as opposed to some nameless snuffy. We found that in the Phoenix project. Some would have preferred to leave named cadre alone in order to have the impersonal battle which would kill many hundreds, just so long as we didn’t know them.
Is attacking somebody who is a terrorist but not a US citizen, if we know everything about him including his favorite toy, as a kid different from attacking the same guy if he happened to be a citizen?
We have numerous ways the government can execute you without trial. And only rightwingers object. See Ruby Ridge and Waco. See Fast&Furious ref Agent Terry. See botched SWAT raids which end up killing the uninvolved. See anybody standing up and accountable. Go ahead. See them. They’re all over the place. Start right in.
Try pulling something that looks like a gun on a cop at a traffic stop.
Awlaki’s death at least had the benefit of a supposed panel looking at his offenses. You switch, as convenient, from whether such a panel is legitimate, to whether the guy’s offenses were serious. Visualize transparency.
OBL never, as far as we know, laid a hand on anybody. Does he qualify for individualized death? Or should we have done as NATO did in Libya, bombed prodigiously and hoped desperately to kill him by accident?
So, what kind of a break does Awlaki get, there in the desert, because of his citizenship, that an equally bad actor who is not a citizen does not get?
Foxmarks, You are making the same mistake that many do in regards to what is called the Global War on Terror. (GWOT) The very purpose of terror as a tactic is to defeat our legalistic tendencies. Do you or anyone else doubt that war has been declared on the United States by a non-sovereign group whose major affinity is belief in a tribal religion that commands its adherents to conquer all non-believers? Al Qaida is merely one branch of this group that have been lumped together and called “Islamist terrorists.” Declaring war is a problem because there is no nation to declare war on. And we don’t want to declare war on Islam because:
1. Many of the adherents are not believers in the strictest, intolerant version of the religion.
2. We don’t want to go to war with 1.5 billion people who are spread throughout the Middle East and Asia if we don’t have to.
So, what do we have? Not a declaration of war but a Congressional authorization for the use of force against the Islamist terrorists wherever they are found. A messy thing that has no constitutional bona fides, but is necessary to defend ourselves against this enemy who observes no rules and knows we are apt to use our laws to restrict our efforts to defend ourselves.
Read John Yoo’s book, “WAR BY OTHER MEANS.” It sets out in detailed fashion the way the DOJ and Bush decided what rules they would follow and why against this unique new enemy. The guiding principle was the Geneva Convention’s definition of illegal combatants. The Islamist terrorists meet this definition. They are due no consideration of POW status and can be summarily executed on the battle field after a quick military review. (A field board of two officers would be sufficient.) Prisoners were taken for their intelligence value. However, transporting prisoners to U.S. soil would present a problem because they anticipated that ACLU types would immediately demand all due process for the prisoners. Thus, GITMO and military tribunals.
A precedent was set for executing treacherous U.S. citizens who have joined an enemy during WWII when Roosevelt authorized military tribunals and executions of some Americans who were attempted saboteurs for the Germans. Alwaki’s case was considered by the DOJ/CIA/DOD (the exact body is classified, I believe) and they placed his name on a list of high value targets because of his very visible anti-American, pro terrorist activities. Alwaki knew he was on the list. His father knew he was on the list. His father attempted to get his son’s name removed from the list. It was not a secret. I don’t know the exact procedure the governmment followed in deciding to place Alwaki on the list, but there was a procedure and there was notice. Alwaki might have asked to come back and clear his name, but he didn’t.
His death by drone delivered missile is just a ne unique teactic that inn some ways emulates the terrorist surprise bombing except that it is much more surgical. Some people may have a problem with it, but I don’t. Tit for tat and all that.
I am in total agreement with Newt and John Yoo on this issue. I liken this conflct/war to a boxing match where one fighter is following all the rules and the other fighter has no rules except to win. I do not want to lose because we were too wrapped up in following rules to defend ourselves properly.
JJ formerly,
Let me take issue with one point. You write that “. . . this enemy who observes no rules . . . .”
I suggest that Al Quaeda does have rules. Their rules are derived from Islamic scripture, however literally or perversely they interpret them. The point seems ot be not that they are lawless, but that they claim observacee of a parochial religious rule that supercedes (in there belief) any rules of a sovereign state.
JJ,
“I do not want to lose because we were too wrapped up in following rules to defend ourselves properly.”
I don’t disagree with that, but I think Foxmarks point (if I may speak on his/her behalf) is that if we give the govt leave to vaporize those citizens we don’t like at the moment, what will stop the govt from vaporizing us when the govt decides it doesn’t like us? Thus the emphasis on the rule of law.
As I noted above, much of this has to do with where and how the line is drawn and this new era od assymetrical warfare, coupled with a ubiquitous 24/7 news cycle has complicated the matter immensely.
JJ,
just noticed all the typos in the 3:33 post. I know I’m being obsessive here, but . . . apologies.
Y’all are equating Al-Q with the United States government. They’re not constrained by a Constitution. Our side is. Cutting down laws to get at the devil means the devil wins.
I agree they have declared war on the U.S. (an much of the Western world). They have done so both by declaration from leadership and by action.
We have not lived up to our own standards. Way up early in the thread, I recognize that sometimes the best choice is still wrong. Life is hard; get a helmet.
Citizenship is a bright line. I am convinced it is better to observe the line than dismiss it.
A quick google, in case I missed something, shows the legal authority for all this is Bush’s AUMF. When the lefties railed against Bush, I tried to argue with them that the AUMF was in fact a blank check and an open-ended authority. Bush did not overstep, he followed procedure and got the authorization.
But I disagreed with the blank check. I thought–and still hold–that was a mistake by Congress. So we are back to where I started. Gingrich was technically correct, but I say wrong on principle.
I see too many chained violations of limited government. Yes, there was a tortuous legal path that Newt referenced. I am not saying it is for-sure illegal, I am saying it is wrong.
I’m perhaps too much a textual Constitutionalist. The Bush-Obama-Gingrich strategy depends too much on the Constitution being open to revision or legislative side-stepping. I say the AUMF is unconstitutional, but acknowledge that is not the prevailing opinion.
Bush may have set out decent rules, but he and his successors are not bound by them. The check is still blank. It comes down to the executive’s whim on how to use blanket authority. I don’t trust any of ’em that much.
Richard offers a nice list of violations we have already come to tolerate. How many more will it take before any of you say “too much”?
Foxmarks:
Your history and law are both wrong. No president has ever felt the need to obtain a “Declaration of War” to go after rebels, pirates, or terrorists.
Washington did not obtain any such in putting down Shay’s Rebellion or the Whisky Rebellion. Jefferson (who, one would think, had a pretty good idea of what the Constitution meant) did not obtain one before dispatching the Navy and Marine Corps to deal with the Barbary Pirates. Nor was any sought or obtained before sending US military forces against John Brown, the Mormons, Pancho Villa, etc., etc., etc., ad infinitum.
The attack on Awlaki actually had more legal authority than any of those — it was clearly covered by the Authorization for the Use of Military Force. (BTW, I am not aware of any statute or court decision which describes in what form Congress may declare war, or whether they need to put “Declaration of War” at the top.)
The IV, V, and XIV amendments to the US Constitution simply do not apply to combatants, lawful, or, in this case, unlawful.
Nor does the question of citizenship enter into the question of what the US may do with people who take up arms against the US. It didn’t affect the outcome of In re Quirin, and it didn’t affect the fate of hundreds, perhaps thousands, of US citizens who fought in the German, Italian, and Japanese forces in World War II.
What we need is a condidate with the brains and knowlege of Newt, the perserverance, executive ability, and common sense of Cain, and the coolness under pressure and smoothness of Romney.
Vulcan mind-meld, anyone?
May be, not de jure, but de facto American jurisprudence is a direct continuation of English common law. And laws about piracy by British parlament are clear: no declaration of war is needed to attack pirate vessels or pirate bases. Thomas Jefferson himself sent frigates into Mediterranean for this matter without declarion of war to Barbary Pirates. Take this as precedent, if you wish. He only needed Congress approval for expenditures. A quote from Wiki:
“Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli “and also to cause to be done all such other acts of precaution or hostility as the state of war will justify.””
Foxmarks; So what break does a US citizen, operating as a terrorist in Yemen, organizing strikes against us, get that a non-citizen doing the same thing in the same place does not get? And why?
Are you sure it’s not just the idea of a named individual as opposed to unknown operators that gets your attention?
Those subject to capital punishment get a good deal more public sympathy than their victim (who?) because the victim, being dead and gone, is not made familiar to us.
Saunders & Sergey, see above where I endorse terrorism as modern piracy. Let’s call it that, then. And if we do so, there’s no need for the blank-check AUMF.
I stand corrected on attacking pirate bases. But I stand firm that I would still prefer a formal declaration. The Executive has been cutting corners for centuries. I prefer not to live by what the President “feels the need for”.
You add another list of suppressions to which I ask again, how many more will be too many for you?
Saunders, when you mention “rebels” you’re taunting me to bring up Lincoln. Another time…
Aubrey, you’re still arguing with the voices in your head. A citizen gets due process. Secret lists and secret justifications aren’t due process.
T@3:47pm: “JJ, just noticed all the typos in the 3:33 post. I know I’m being obsessive here, but . . . apologies.”
No apology required. I’m the worst about rushing comments into print without proper proofing. No one need ever apologize to me – I am King of the typos.
foxmarks@4:08pm “Bush may have set out decent rules, but he and his successors are not bound by them. The check is still blank. It comes down to the executive’s whim on how to use blanket authority. I don’t trust any of ’em that much.”
That is why we go through the (hopefully) rigorous steps of vetting the candidates. The President’s primary job is as C-in-C and Chief Law Enforcement Officer of the land. Any President must be trusted by the majority. That’s why we elected him/her. And we have a process for unseating the President if he/she violates our trust.
If the list of high value targets was secret or the administration was quick to claim responsibillty for the death of a citizen who could have been dealt with through police procedures, then I would join you in asking for more openness or calling for a change of policy.
That is another mistake many make in this conflict. Because we tried to treat the terror attacks as a police matter (no matter where in the world the attacks took place) before 9/11, some people are locked into thinking of this in those terms. However, because of Yoo and Bush, we are now committed to using police tactics inside CONUS and military tactics outside of CONUS.
“The constitution isn’t a suicide pact.” This phrase, often believed to be written by Thomas Jefferson, refers to the fact that there are, in fact, times when the C-in-C must act extra-constitutionally. The framers had no way of foreseeing the type of conflict we are engaged in today. To satisfy those who want a legal map to follow, possibly an amendment could be passed that deals with fourth generation warfare. Or, since it sems to satisfy your sensibilities, we could have an official declaration defining Islamic terrorism in all its forms as equivalent to piracy.
If we get too legalistic about national defense, every platoon will have to have a lawyer along to advise them on what is legal and what isn’t. I have talked to a couple of progressives who think that would be just a dandy idea. Meh!
Foxmarks. Considering the citizen is in arms against the US, why does he get a break his non-citizen comrade in arms does not? At what point does killing him absent a civil trial become legitimate. When he is actually firing at US troops?
What if he does as the Taliban are said to do in various restricted fire zones in Astan: Quit firing, drop the weapon and saunter off to another firing position, free from US action. Hell, they get that break without even being a citizen.
At some point, we get to kill him without a trial. Other than insisting that we can do that if he takes one more step–oops, two more, um. actually he hasn’t taken aim with that thing, so we wait until he takes up trigger slack, can you describe a situation where the US would be justified in killing him?
As for arresting him, recall that we try that from time to time. Sometimes it works, sometimes they make a movie, like Blackhawk Down.
Whoops! It wasn’t Thomas Jefferson who used the phrase about the constitution not being a suicide pact, it was Justice Robert H. Jackson.
From wiki:
“Although the phrase echoes statements made by Lincoln, and although versions of the sentiment have been advanced at various times in American history, the precise phrase ‘suicide pact’ was first used by Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago, a 1949 free speech case decided by the U.S. Supreme Court. The phrase also appears in the same context in Kennedy v. Mendoza-Martinez, a 1963 U.S. Supreme Court decision written by Justice Arthur Goldberg.”
Should have looked it up before I wrote.
At some point, we get to kill him without a trial.
Imminent threat. He gets the break because citizenship should confer some privilege.
You move your own goalposts (again?) by bringing up Taliban. Non-citizens, and active pirates get killed as much as we can. The battlefield ROE is stupid. Awlaki wasn’t in battle.
For all we know he was killed right after a revelation that would have him forswear Muhammed and become a U.S. asset.
J.J., refer to my several explanations that the act was legal, but wrong. If the Constitution was violated, somebody should stand accused. We would likely not prosecute, but we must not lose touch with the essential violation.
I would totally support attempting an Amendment adjusting War Powers. It would probably not turn out to be the Amendment I prefer, but that’s the correct way to extend government authority.
Foxmarks. Why does citizenship confer a privilege to a guy doing as Awlaki does?
I bring in the ROE for the Taliban because those are the rules for non-citizens. Under your view,
Awlaki gets even more slack. Hard to think of a way to kill him before the trigger breaks.
Imminent threat? Does a citizen in arms against the US get a different definition of imminent threat than a non-citizen? Why?
Lots of people have revelations. Problem is, if they don’t act on them, on account of having them too late because they’re dead, the revelation is meaningless. For all I know, he may just have concocted a fiendishly complicated and guaranteed way to get a Muslim serving in the US military to kill a dozen US soldiers. Or no, wait. Having done that, the guys being dead or crippled, he’s no longer a threat. We have to wait until…just exactly what? Is there a sub-requirement he has to be in the territorial US to qualify to be shot in the act?
This clown wrote his own death warrant. He had the opportunity at any time to turn himself in and get a trial.
He wasn’t in battle. Neither was Yamamoto. So?
I don’t see any support for your position that an American citizen in arms against the US–even if he’s only organizing–gets a break that non-citizens doing the same thing don’t get. All I see is an assertion.
“For all we know [Al Awlaki] was killed right after a revelation that would have him forswear Muhammed and become a U.S. asset.”
Too bad he didn’t have that revelation just a little bit sooner.
Aubrey, we’re both making assertions. We have a difference of opinion. I am less willing to believe and trust a government. From my end it sounds like you just want blood.
What’s the difference between someone who blogs about insurrection against an unjust government, perhaps linking to info about arms and tactics, and the guy we killed? Maybe you cannot see yourself and your pallys as potential targets. I am either more radical or less naive.
By your rules, what’s to stop this government from assassinating any of us?
foxmarks. If I were interested in the rev, I wouldn’t blog about it. Your, your parents’ or your grandparents’ tax dollars at work. Rev 101, which we learned in order to combat it.
If I were blogging about it, I’d expect to be watched or interrogated, which is why I wouldn’t blog about it.
Unless I were in another country and could count on not being watched or interrogated.
But this is changing the facts. Awlaki didn’t merely blog about it, as you know. He actively promoted it, organizing, encouraging, promoting, and in one way and another, had a part in several attacks against the US. Had he been a citizen of Yemen, he’d have been fair game, if I read you right. My question is why, where in the law and the constitution, does his being a US citizen swanning around the desert of Yemen, give him a break his ideological brother, identical twin in terms of actions, doesn’t get?
The reason the government doesn’t get to assassinate just any of us is that we are here and we can be tried in court.
“we can be tried in court”
“can be tried” ≠“will be tried” A little habeus pocus and it becomes a secret court, using secret evidence. Some comfort that is.
*They* get to decide if your blogging or phone conversation or travel is fomenting insurrection. You’re a regular on a site named Neo-neocon. You’re guilty by association (everybody knows those neocons are just looking for a reason to attack…).
We’ve gone around more than once that I see what the law claims it is. The law is corrupt.
I turn your question back on you. What is citizenship worth if we can be killed without due process? We all might as well be living in tents in Yemen.
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I’m feeling a bit guilty of over-commenting, but since you brought it up…
Gingrich was technically correct on this point. And the media slap is nice. But he is wrong on principal. There are Constitutional provisions about citizens making war against the U.S.A. No conviction of Treason was entered. Newt is making excuses for extra-Constitutional authority.
We all want to see Newt take down Barry, because y’all are (I’m guessing) of Newt’s heritage.
I would love, love to see Cain vs. Barry. In the subculture that Obama adopted and in which Cain lived, the senior preacher personality dominates. On topics of economics, culture and overcoming hardship, Cain would expose Obama as the thin reed he is. And that, shaking the assumptions of entitlement culture, mean more to me than scoring debate points with SWPLs.
Apprehending traitors/citizen enemy combatants is not a capture alive only proposition. The idea is to stop those persons in any manner possible and necessary. Wanted – Dead or Alive is not just an old tv series, it’s reality and the risk one takes to oppose by force of arms.
I am not an attorney, but it strikes me that there is a decided difference between treason (conspiring with the enemy) and actually bearing arms against one’s own country. If one renounced one’s own country to join with enemy forces that would clearly make a (former) citizen an enemy combatant. If one took up those arms and did NOT renounce citizenship for the purpose of gaming the system and accessing a citizen’s rights, would that really make a difference? Couldn’t the govt, by virtue of declaring a citizen an enemy comabtant essentially declare that citizen’s acces to rights null and void?
As to Cain and Newt v Obama. IMO Herman Cain could be a serious debate threat to Obama because he doesn’t play on Obama’s turf. Cain would argue from a perspective that Obama is not familiar with (facts on the ground and business experience) and thus, I think, limit Obama’s effectiveness to spout rhetorical points. Newt, on the other hand, actually bests Obama at Obama’s own game by piercing the sound-good rhetoric with devastating arguments.
I understand the idea, but the principle (and text) of the Constitution requires more process, in the open. I am asking that formal judgment of Treason be entered. Citizens are granted special protection. Some dude standing in Yemen is not an imminent threat.
And it is also not clear that the Executive has authority to enter foreign territory and kill anyone standing near the target. Was Awlaki’s citizen son also found guilty by secret trial?
Foxmarks,
Could you point me to the section of the constitutional text? I’d like to read it and form a more informed opinion.
Sadly, collateral damage happens in war so I don’t see the issue of someone standing near the target. Were the allies responsible for the innocent civilians killed in the fire-bombing of Dresden? Should those commanders have been brought to courts martial?
For a refreshing example of “piercing the sound-good rhetoric with devastating arguments” see Milton Friedman friendly defenestrate Phil Donahue.
http://www.youtube.com/watch?v=E1lWk4TCe4U
I think they would have to give TOTUS an upgrade to keep up with Newt.
One doesn’t have to be an attorney to have the right ideas that protect America. To require that, is an idea of the left, an idea sponsored when the people did not rise up as Marx predicted. The torch then was given to a “vanguard” who would carry the “proper” ideas. A vangard, now, in America, protected by a debased and debauched legal class.
Schmucks. Putzes. Bastards!
Control the head, control the body. The only people who want communism are those monsters who hate people and want to enslave them.
Does right and wrong come from “smart” people? Not hardly. Look at the personal lives of the very influential “smart” people who changed our culture. Paul Johnson’s book, “Intellectuals” details some of them.
Curtis,
My non-attorney comment above was not meant to imply that one needs to be an attorney, it was only meant as full disclosure that there might well be certain legal precedents and principles with which I was not familiar and which might be germane to the argument.
Also, thanks for the Milton Friedman link.
T, there is no war. Yemen is not Dresden. Law revolves on details and formalities. The Federal government has found that inconvenient. The only difference between me and Awlaki is the whim of the executive (and a beard).
I find killing citizens without public trial to be a grave wrong. I am not a neocon. But, too, I accept that virtue is making the best available choice. Sometimes the best choice may be a grave moral wrong. I do not envy the men who must decide. And I remain hyper-vigilant against convenience over morality.
Try this:
Good point, T, and points to the importance of “an informed citizenry.” It always does well to reach back to history. The problem with our recent legal history is that its foundation in progressive jurisprudence makes it untrustworthy.
When the nascent United States fought against England for their independence and they had to fight against family and neighbors who were citizens, did they consider it a crime to kill them?
There’s a reach too far to consider Awlaki a mere “whim.” That is hyperbole. Now, if the information on Awlaki was fabricated and he was innocent of the various crimes of which he was convicted, then we need to purge the people who did that.
Curtis, show me the evidence by which Awlaki was executed. Show me the evidence by which his son was simultaneously executed. It seems the requirement for your assent is only a sustained media campaign, without cross-examination and findings of fact.
There were no citizens of the United States until 1789. The citizens of the Several States did not all enjoy the protections of a Constitution designed to set tight limits on government authority. Treason is set out in the 5th Amendment because of the grave moral (and physical) danger of an executive killing for convenience.
Under the current system we can never know if any of the evidence against Awlaki was suspect. I heard he made a move on Sharon Bialek, too.
“After the attack, al-Awlaki posted commentary on his blog praising Hasan’s actions and calling him his student and brother,” said the senior U.S. official.
Faisal Shahzad, who pled guilty to the Times Square car bombing attempt in the spring of 2010, also told interrogators that he was “inspired by” al-Awlaki.
By JOHN YOO
The Yemeni-American cleric killed by a U.S. drone strike on Friday was linked to the attempted bombing of a Northwest Airlines flight over Detroit in 2009, the shooting spree at Fort Hood in Texas that killed 13 that same year, and the near-miss car bombing of Times Square in 2010.
Foxmarks,
Please believe me when I say that I’m not a trigger-happy citizen. i also recognize the danger if our govt has the ability to gratuitously declare once citizen an “enemy of the state.” Ultimately, they could then declare me an enemy for the most inobtrusive infraction.
I submit, however, that your argument is one-sided. You counter Curtis by saying there were no citizens until 1789. OK, then, explain the killing of US citizens in the civil war. This is why war is problematic; the death and destruction are only the most obvious problems. IMO war as an act exists extralegally, beyond the structures of a civilized society.
The argument that you and I consider seems to be about where to draw that line. You seem willing to permit Dresden but want to disallow Yemen. You say that Yemen is not Dresden. It’s not? Any innocent victims are just as dead.
Curtis.
Foxmarks had to ask, didn’t he? I expect he’ll ask for classified intel next. Goalposts and whatnot.
Here’s the question: Given that Awlaki is shown to have been in arms against the US, what does being an American citizen get him that the Yemeni terrorist at the other end of the convoy doesn’t have? And why?
That Awlaki was in the desert in Yemen and so not an imminent threat…what kind of nonsense is that? What does he have to do to be an imminent threat? I know. Whatever he does does not qualify. If he does just one more thing… Oops. I meant one more after that.
Hell, OBL was not in the US at any time. Nor a bunch of other folks who have been a problem for us.
Foxmarks wrote “There are Constitutional provisions about citizens making war against the U.S.A.”
I wrote “Could you point me to the section of the constitutional text? I’d like to read it and form a more informed opinion.”
I’m still waiting . . . .
I’m glad that Foxmarks did ask. It shows a mind disciplined to look for precedent and legal authority, which is very good. And the fact that his many other posts bear witness to a good and noble mind must create context.
We’re facing an exception to the general international rule which keeps peace. And terrorists violated it first, so, now, were in a place between war and criminality and if we don’t keep our heads, we might destroy our own system from within. Therefore, keeping a vigil on our freedoms and allowing for as much freedom as possible while we put on the robes of war, is the challenge so that, when it is over, we may joyfully assume civil society.
T, I figured you were already versed in the Awlaki situation and either being a smartass or asking a rhetorical question. Google Awlaki and 5th Amendment if you need to.
In the War of Northern Aggression (don’t get me started on Lincoln’s abuses of power), Confederate States by the act of secession made their people no longer citizens under the U.S.A. The CSA at least had the honesty to call it war via formal process.
The line I draw is quite simple: A formal declaration of war, as specified in the Constitution. I find no exception to that requirement just because the counterparty is small in number or proficient with guerilla tactics. There’s no clause about not needing a declaration if the President is only planning to use a sliver of the arsenal.
Absent a declaration of war, give me some process. Get an AUMF, like Bush did. Enter a judgment of Treason like the Constitution calls for. Or strip citizenship first, as proposed in the column I quoted.
The quotes Curtis put up as evidence of Awlaki’s guilt are mere speech, and have not been tested in any public tribunal. If making war against the United States can arise from as little as some inflammatory rhetoric that some crazies take the wrong way, then we all are targets.
Seriously, y’all are submitting a report which uses the words “linked to” as evidence in support of killing somebody?
Richard Aubrey does some handwaving to dismiss the difference between citizen and non-citizen, and simultaneously fails to recognize that “imminent threat” is a test applied across the legal system, particularly regarding the use of deadly force. I propose he will be a better fellow if he stops arguing with the voices in his head.
At a broader level, if there are people that need killing, like Awlaki, let’s kill them and recognize that the act is not legal. Pretending it is “just fine, trust me” does no service to the ideal of a government of laws. The trial-by-jury system is a check against executive power (corrupted now by sovereign immunity). It is parallel to civilian killing. It is illegal, but the law offers an affirmative defense, the prosecution can decline to press, and a jury can find no true bill or declare not guilty.
If the threat was that grave and that imminent, somebody should be willing to stand accountable.
I watched most of the Republican debate on “Commander in Chief Issues” last night before the rotten CBS video froze part way through and, again, Newt had what I consider, by far, to have been the best and most informed, detailed, and specific answers, whereas Cain put in a poor performance, he delivered a lot of hesitations and generalities, Cain talking a lot about bringing in experts to make up for his deficiencies, but never really answering the real question, of how he would be able to decide between the alternatives these experts might offer, if he himself was deficient in his knowledge–as his hesitations, and answers, and mistaken terminology demonstrated– of the issue or country or policy in question.
Yet again the format was ridiculous, with candidates given only a minute to respond to “gotcha” questions on very complex issues and, in particular CBS “moderator” Scott Pelley very disrespectfully cutting off candidates attempted responses, talking over candidates, and presiding over the whole affair with an extremely irritating, supercilious, and smug expression on his face, and quite openly reflected in his attitude. Main moderator Pelley and a subordinate one from National Journal, also often setting up questions with dubious assumptions built into them, and frequently and abruptly jumping from one policy area to another
It even turns out that before the debate someone at CBS inadvertently sent an internal memo to the Bachmann campaign, in which they talked about deliberately limiting the number of questions that would go to her (http://abcnews.go.com/blogs/politics/2011/11/gop-candidates-blast-cbs-news-for-disgraceful-bias-at-south-carolina-debate/).
What a mess, and deliberately designed to destroy the Republican field of candidates.
Foxmarks,
Thanks for the response. For the record, if one is at all familiar with my commentary on this blog, one knows that I very, very rarely descend into being a smartass, and then, it’s usually provoked by an absurdity or a troll.
I don’t reject your argument out of hand. As I noted above, this is a very serious issue and needs to be considered from all points of view, including the argument you posit. As much as I want the govt to have the power to protect me from a foreign enemy, I also don’t want to extend to the govt the power to gratuitously identify ME as a foreign enemy without serious justification.
As I noted above, it is my belief that war is an extralegal act, outside the realm of the normal jurisprudence of any govt, and so the discusssion almost always falls to where and how we draw the line. The problem is complicated in the nuclear age because, now, even a single individual with a dirty bomb has the power to kill well beyond the limited scope of his/her own person. The waters have become even more muddled and the decision, i believe, even more difficult.
I am not convicted that the law concerning treason applies here. Treason is joining to an enemy, who, while hostile, still is a legal combatant. Terrorists are not legal combatants: their activity is a war crime by definition. So they belong to the same category as pirates, who should be killed on sight and not be brought to court of justice. They have no more legal rights than rabid dogs.
Sergey,
I think the comparison of terrorists with pirates is most fitting.
T, I thank you, too. I know you’re one of the regulars here that makes this a wonderful place for thoughtful disagreement. (Thanks, Neo!)
I agree that modern terrorism parallels piracy. I’ve made that argument trying to help libertarians find justification for some of the stuff the U.S. has done.
But then, let’s call them pirates, or make that status explicit by some public process. And taking out pirate sanctuaries on foreign soil I think still requires a declaration of war. Technology now allows attack without putting boots on the ground. It seems the attack is what constitutes an act of war, not the method.
And, wary of taking this thread even further afield, I hold that war has no rules. It is extra-legal indeed, and thus there are no war crimes. But governments of law still have limited powers.
Foxmarks,
If you posit that “It seems the attack is what constitutes an act of war, not the method,” then does it not follow that Al Quaeda attacked us with the Cole Bombing as well as 9/11? If so, isn’t the U.S. within it’s right of self-defense to counterattack against Al Quaeda? Now, AQ is not a country, it has no geographic border. So, in you estimation would it be equitable for the U.S. to pursue this committed enemy wherever it can find it and for as long as it takes? If that leads to the territory of another sovereign state, does that not make that state complicit (aiding and abetting, an accessory before the fact of a new attack or after the fact of 9/11)?
Your supposition seems grounded on a formal declaration of war, but by recognizing the ACT itself as a declaration you seem to admit that Al Quaeda has declared war in the U.S. with 9/11 just as the Japanese did with the unprovoked attack on pearl Harbor. If so, our pursuit of Al Quaeda would seem to be justified and authorized under your premise. I suspect I’m missing something here?
Well, it looks like Cain has dropped significantly according to a CNN poll. The smearing has done its work and that’s a tragedy. Each tea party candidate’s day in the sun–Bachman, Perry, and Cain–was only that: a day. The loss of Cain is going to viewed as regrettable, if indeed, that is what occurs. Who knows? But if that is what occurs, I think we will later see what an opportunity Cain represented to present a new role model. Was he weak enough in foreign policy knowledge to be disqualified? No. His principles of defense through strength and his firm belief in stealth jihad are enough for me.
Newt is a great politician (maybe not so much as a human being including that overload of gratuitous references to his wife Calista.) I downloaded, for free, the first chapter to his book. It’s a great, simple explication of America’s challenge. I also took note of his expression of faith in Catholicism. I did some research about his past scandals and saw, that like the rest, he was a target of media and progressive savagery. His potential for election, however, combined with his early stumbles, made it appear he didn’t have even a ghost of a chance. But that was before each champion was slain.
Now that Gingrich can be a champion and be valued for those qualities which have been lacking in the others, his biggest challenge will be himself.
Foxmarks,
Further, rereading your earlier post, you write “. . .A formal declaration of war, as specified in the Constitution. I find no exception to that requirement just because the counterparty is small in number or proficient with guerilla tactics.”
Yet this seems to me at odds with your later statement that it is the attack that constitutes the act of war. Please clarify.
Now I can understand if one argues that first, one declares war then one attacks., I also understand that such a position can coexist with the idea that an unprovoked attack also constitutes an act of war. If the unprovoked attack is the catalyst, I would offer that a formal declaration of war by the victim is unnecessary. One does not need to announce that one is defending themselves to do so (just as the castle doctrine permits deadly force vs older self defense laws which require the victim to retreat if possible).
Foxmarks.
You haven’t answered the question about why Awlaki gets a break in the convoy in Yemen when the Yemeni terrorist at the other end of the convoy does not. What about his citizenship makes the difference?
It could be a kind of squeamishness about attacking somebody whose name and antecedents and even face we know, as opposed to some nameless snuffy. We found that in the Phoenix project. Some would have preferred to leave named cadre alone in order to have the impersonal battle which would kill many hundreds, just so long as we didn’t know them.
Is attacking somebody who is a terrorist but not a US citizen, if we know everything about him including his favorite toy, as a kid different from attacking the same guy if he happened to be a citizen?
We have numerous ways the government can execute you without trial. And only rightwingers object. See Ruby Ridge and Waco. See Fast&Furious ref Agent Terry. See botched SWAT raids which end up killing the uninvolved. See anybody standing up and accountable. Go ahead. See them. They’re all over the place. Start right in.
Try pulling something that looks like a gun on a cop at a traffic stop.
Awlaki’s death at least had the benefit of a supposed panel looking at his offenses. You switch, as convenient, from whether such a panel is legitimate, to whether the guy’s offenses were serious. Visualize transparency.
OBL never, as far as we know, laid a hand on anybody. Does he qualify for individualized death? Or should we have done as NATO did in Libya, bombed prodigiously and hoped desperately to kill him by accident?
So, what kind of a break does Awlaki get, there in the desert, because of his citizenship, that an equally bad actor who is not a citizen does not get?
Foxmarks, You are making the same mistake that many do in regards to what is called the Global War on Terror. (GWOT) The very purpose of terror as a tactic is to defeat our legalistic tendencies. Do you or anyone else doubt that war has been declared on the United States by a non-sovereign group whose major affinity is belief in a tribal religion that commands its adherents to conquer all non-believers? Al Qaida is merely one branch of this group that have been lumped together and called “Islamist terrorists.” Declaring war is a problem because there is no nation to declare war on. And we don’t want to declare war on Islam because:
1. Many of the adherents are not believers in the strictest, intolerant version of the religion.
2. We don’t want to go to war with 1.5 billion people who are spread throughout the Middle East and Asia if we don’t have to.
So, what do we have? Not a declaration of war but a Congressional authorization for the use of force against the Islamist terrorists wherever they are found. A messy thing that has no constitutional bona fides, but is necessary to defend ourselves against this enemy who observes no rules and knows we are apt to use our laws to restrict our efforts to defend ourselves.
Read John Yoo’s book, “WAR BY OTHER MEANS.” It sets out in detailed fashion the way the DOJ and Bush decided what rules they would follow and why against this unique new enemy. The guiding principle was the Geneva Convention’s definition of illegal combatants. The Islamist terrorists meet this definition. They are due no consideration of POW status and can be summarily executed on the battle field after a quick military review. (A field board of two officers would be sufficient.) Prisoners were taken for their intelligence value. However, transporting prisoners to U.S. soil would present a problem because they anticipated that ACLU types would immediately demand all due process for the prisoners. Thus, GITMO and military tribunals.
A precedent was set for executing treacherous U.S. citizens who have joined an enemy during WWII when Roosevelt authorized military tribunals and executions of some Americans who were attempted saboteurs for the Germans. Alwaki’s case was considered by the DOJ/CIA/DOD (the exact body is classified, I believe) and they placed his name on a list of high value targets because of his very visible anti-American, pro terrorist activities. Alwaki knew he was on the list. His father knew he was on the list. His father attempted to get his son’s name removed from the list. It was not a secret. I don’t know the exact procedure the governmment followed in deciding to place Alwaki on the list, but there was a procedure and there was notice. Alwaki might have asked to come back and clear his name, but he didn’t.
His death by drone delivered missile is just a ne unique teactic that inn some ways emulates the terrorist surprise bombing except that it is much more surgical. Some people may have a problem with it, but I don’t. Tit for tat and all that.
I am in total agreement with Newt and John Yoo on this issue. I liken this conflct/war to a boxing match where one fighter is following all the rules and the other fighter has no rules except to win. I do not want to lose because we were too wrapped up in following rules to defend ourselves properly.
JJ formerly,
Let me take issue with one point. You write that “. . . this enemy who observes no rules . . . .”
I suggest that Al Quaeda does have rules. Their rules are derived from Islamic scripture, however literally or perversely they interpret them. The point seems ot be not that they are lawless, but that they claim observacee of a parochial religious rule that supercedes (in there belief) any rules of a sovereign state.
JJ,
“I do not want to lose because we were too wrapped up in following rules to defend ourselves properly.”
I don’t disagree with that, but I think Foxmarks point (if I may speak on his/her behalf) is that if we give the govt leave to vaporize those citizens we don’t like at the moment, what will stop the govt from vaporizing us when the govt decides it doesn’t like us? Thus the emphasis on the rule of law.
As I noted above, much of this has to do with where and how the line is drawn and this new era od assymetrical warfare, coupled with a ubiquitous 24/7 news cycle has complicated the matter immensely.
JJ,
just noticed all the typos in the 3:33 post. I know I’m being obsessive here, but . . . apologies.
Y’all are equating Al-Q with the United States government. They’re not constrained by a Constitution. Our side is. Cutting down laws to get at the devil means the devil wins.
I agree they have declared war on the U.S. (an much of the Western world). They have done so both by declaration from leadership and by action.
We have not lived up to our own standards. Way up early in the thread, I recognize that sometimes the best choice is still wrong. Life is hard; get a helmet.
Citizenship is a bright line. I am convinced it is better to observe the line than dismiss it.
A quick google, in case I missed something, shows the legal authority for all this is Bush’s AUMF. When the lefties railed against Bush, I tried to argue with them that the AUMF was in fact a blank check and an open-ended authority. Bush did not overstep, he followed procedure and got the authorization.
But I disagreed with the blank check. I thought–and still hold–that was a mistake by Congress. So we are back to where I started. Gingrich was technically correct, but I say wrong on principle.
I see too many chained violations of limited government. Yes, there was a tortuous legal path that Newt referenced. I am not saying it is for-sure illegal, I am saying it is wrong.
I’m perhaps too much a textual Constitutionalist. The Bush-Obama-Gingrich strategy depends too much on the Constitution being open to revision or legislative side-stepping. I say the AUMF is unconstitutional, but acknowledge that is not the prevailing opinion.
Bush may have set out decent rules, but he and his successors are not bound by them. The check is still blank. It comes down to the executive’s whim on how to use blanket authority. I don’t trust any of ’em that much.
Richard offers a nice list of violations we have already come to tolerate. How many more will it take before any of you say “too much”?
Foxmarks:
Your history and law are both wrong. No president has ever felt the need to obtain a “Declaration of War” to go after rebels, pirates, or terrorists.
Washington did not obtain any such in putting down Shay’s Rebellion or the Whisky Rebellion. Jefferson (who, one would think, had a pretty good idea of what the Constitution meant) did not obtain one before dispatching the Navy and Marine Corps to deal with the Barbary Pirates. Nor was any sought or obtained before sending US military forces against John Brown, the Mormons, Pancho Villa, etc., etc., etc., ad infinitum.
The attack on Awlaki actually had more legal authority than any of those — it was clearly covered by the Authorization for the Use of Military Force. (BTW, I am not aware of any statute or court decision which describes in what form Congress may declare war, or whether they need to put “Declaration of War” at the top.)
The IV, V, and XIV amendments to the US Constitution simply do not apply to combatants, lawful, or, in this case, unlawful.
Nor does the question of citizenship enter into the question of what the US may do with people who take up arms against the US. It didn’t affect the outcome of In re Quirin, and it didn’t affect the fate of hundreds, perhaps thousands, of US citizens who fought in the German, Italian, and Japanese forces in World War II.
What we need is a condidate with the brains and knowlege of Newt, the perserverance, executive ability, and common sense of Cain, and the coolness under pressure and smoothness of Romney.
Vulcan mind-meld, anyone?
May be, not de jure, but de facto American jurisprudence is a direct continuation of English common law. And laws about piracy by British parlament are clear: no declaration of war is needed to attack pirate vessels or pirate bases. Thomas Jefferson himself sent frigates into Mediterranean for this matter without declarion of war to Barbary Pirates. Take this as precedent, if you wish. He only needed Congress approval for expenditures. A quote from Wiki:
“Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli “and also to cause to be done all such other acts of precaution or hostility as the state of war will justify.””
Foxmarks; So what break does a US citizen, operating as a terrorist in Yemen, organizing strikes against us, get that a non-citizen doing the same thing in the same place does not get? And why?
Are you sure it’s not just the idea of a named individual as opposed to unknown operators that gets your attention?
Those subject to capital punishment get a good deal more public sympathy than their victim (who?) because the victim, being dead and gone, is not made familiar to us.
Saunders & Sergey, see above where I endorse terrorism as modern piracy. Let’s call it that, then. And if we do so, there’s no need for the blank-check AUMF.
I stand corrected on attacking pirate bases. But I stand firm that I would still prefer a formal declaration. The Executive has been cutting corners for centuries. I prefer not to live by what the President “feels the need for”.
You add another list of suppressions to which I ask again, how many more will be too many for you?
Saunders, when you mention “rebels” you’re taunting me to bring up Lincoln. Another time…
Aubrey, you’re still arguing with the voices in your head. A citizen gets due process. Secret lists and secret justifications aren’t due process.
T@3:47pm: “JJ, just noticed all the typos in the 3:33 post. I know I’m being obsessive here, but . . . apologies.”
No apology required. I’m the worst about rushing comments into print without proper proofing. No one need ever apologize to me – I am King of the typos.
foxmarks@4:08pm “Bush may have set out decent rules, but he and his successors are not bound by them. The check is still blank. It comes down to the executive’s whim on how to use blanket authority. I don’t trust any of ’em that much.”
That is why we go through the (hopefully) rigorous steps of vetting the candidates. The President’s primary job is as C-in-C and Chief Law Enforcement Officer of the land. Any President must be trusted by the majority. That’s why we elected him/her. And we have a process for unseating the President if he/she violates our trust.
If the list of high value targets was secret or the administration was quick to claim responsibillty for the death of a citizen who could have been dealt with through police procedures, then I would join you in asking for more openness or calling for a change of policy.
That is another mistake many make in this conflict. Because we tried to treat the terror attacks as a police matter (no matter where in the world the attacks took place) before 9/11, some people are locked into thinking of this in those terms. However, because of Yoo and Bush, we are now committed to using police tactics inside CONUS and military tactics outside of CONUS.
“The constitution isn’t a suicide pact.” This phrase, often believed to be written by Thomas Jefferson, refers to the fact that there are, in fact, times when the C-in-C must act extra-constitutionally. The framers had no way of foreseeing the type of conflict we are engaged in today. To satisfy those who want a legal map to follow, possibly an amendment could be passed that deals with fourth generation warfare. Or, since it sems to satisfy your sensibilities, we could have an official declaration defining Islamic terrorism in all its forms as equivalent to piracy.
If we get too legalistic about national defense, every platoon will have to have a lawyer along to advise them on what is legal and what isn’t. I have talked to a couple of progressives who think that would be just a dandy idea. Meh!
Foxmarks. Considering the citizen is in arms against the US, why does he get a break his non-citizen comrade in arms does not? At what point does killing him absent a civil trial become legitimate. When he is actually firing at US troops?
What if he does as the Taliban are said to do in various restricted fire zones in Astan: Quit firing, drop the weapon and saunter off to another firing position, free from US action. Hell, they get that break without even being a citizen.
At some point, we get to kill him without a trial. Other than insisting that we can do that if he takes one more step–oops, two more, um. actually he hasn’t taken aim with that thing, so we wait until he takes up trigger slack, can you describe a situation where the US would be justified in killing him?
As for arresting him, recall that we try that from time to time. Sometimes it works, sometimes they make a movie, like Blackhawk Down.
Whoops! It wasn’t Thomas Jefferson who used the phrase about the constitution not being a suicide pact, it was Justice Robert H. Jackson.
From wiki:
“Although the phrase echoes statements made by Lincoln, and although versions of the sentiment have been advanced at various times in American history, the precise phrase ‘suicide pact’ was first used by Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago, a 1949 free speech case decided by the U.S. Supreme Court. The phrase also appears in the same context in Kennedy v. Mendoza-Martinez, a 1963 U.S. Supreme Court decision written by Justice Arthur Goldberg.”
Should have looked it up before I wrote.
At some point, we get to kill him without a trial.
Imminent threat. He gets the break because citizenship should confer some privilege.
You move your own goalposts (again?) by bringing up Taliban. Non-citizens, and active pirates get killed as much as we can. The battlefield ROE is stupid. Awlaki wasn’t in battle.
For all we know he was killed right after a revelation that would have him forswear Muhammed and become a U.S. asset.
J.J., refer to my several explanations that the act was legal, but wrong. If the Constitution was violated, somebody should stand accused. We would likely not prosecute, but we must not lose touch with the essential violation.
I would totally support attempting an Amendment adjusting War Powers. It would probably not turn out to be the Amendment I prefer, but that’s the correct way to extend government authority.
Foxmarks. Why does citizenship confer a privilege to a guy doing as Awlaki does?
I bring in the ROE for the Taliban because those are the rules for non-citizens. Under your view,
Awlaki gets even more slack. Hard to think of a way to kill him before the trigger breaks.
Imminent threat? Does a citizen in arms against the US get a different definition of imminent threat than a non-citizen? Why?
Lots of people have revelations. Problem is, if they don’t act on them, on account of having them too late because they’re dead, the revelation is meaningless. For all I know, he may just have concocted a fiendishly complicated and guaranteed way to get a Muslim serving in the US military to kill a dozen US soldiers. Or no, wait. Having done that, the guys being dead or crippled, he’s no longer a threat. We have to wait until…just exactly what? Is there a sub-requirement he has to be in the territorial US to qualify to be shot in the act?
This clown wrote his own death warrant. He had the opportunity at any time to turn himself in and get a trial.
He wasn’t in battle. Neither was Yamamoto. So?
I don’t see any support for your position that an American citizen in arms against the US–even if he’s only organizing–gets a break that non-citizens doing the same thing don’t get. All I see is an assertion.
“For all we know [Al Awlaki] was killed right after a revelation that would have him forswear Muhammed and become a U.S. asset.”
Too bad he didn’t have that revelation just a little bit sooner.
Aubrey, we’re both making assertions. We have a difference of opinion. I am less willing to believe and trust a government. From my end it sounds like you just want blood.
What’s the difference between someone who blogs about insurrection against an unjust government, perhaps linking to info about arms and tactics, and the guy we killed? Maybe you cannot see yourself and your pallys as potential targets. I am either more radical or less naive.
By your rules, what’s to stop this government from assassinating any of us?
foxmarks. If I were interested in the rev, I wouldn’t blog about it. Your, your parents’ or your grandparents’ tax dollars at work. Rev 101, which we learned in order to combat it.
If I were blogging about it, I’d expect to be watched or interrogated, which is why I wouldn’t blog about it.
Unless I were in another country and could count on not being watched or interrogated.
But this is changing the facts. Awlaki didn’t merely blog about it, as you know. He actively promoted it, organizing, encouraging, promoting, and in one way and another, had a part in several attacks against the US. Had he been a citizen of Yemen, he’d have been fair game, if I read you right. My question is why, where in the law and the constitution, does his being a US citizen swanning around the desert of Yemen, give him a break his ideological brother, identical twin in terms of actions, doesn’t get?
The reason the government doesn’t get to assassinate just any of us is that we are here and we can be tried in court.
“we can be tried in court”
“can be tried” ≠“will be tried” A little habeus pocus and it becomes a secret court, using secret evidence. Some comfort that is.
*They* get to decide if your blogging or phone conversation or travel is fomenting insurrection. You’re a regular on a site named Neo-neocon. You’re guilty by association (everybody knows those neocons are just looking for a reason to attack…).
We’ve gone around more than once that I see what the law claims it is. The law is corrupt.
I turn your question back on you. What is citizenship worth if we can be killed without due process? We all might as well be living in tents in Yemen.