We Can Wipe You Out Anytime

by Eric Martin

Glenn Greenwald makes a very good point about recent revelations that the President is claiming the authority to assassinate U.S. citizens that the President labels "terrorists." 

But even if you’re someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it’s worth remembering that if you advocate that power, it’s going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn’t there at least be some judicial approval required?  Do we really want the President to be able to make this decision unilaterally and without outside checks?  Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval?  Shouldn’t we be at least as concerned about the President’s being able to assassinate Americans without judicial oversight?  That seems much more Draconian to me.

It would be perverse in the extreme, but wouldn't it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it?  That would basically mean that courts would issue "assassination warrants" or "murder warrants" -- a repugnant idea given that they're tantamount to imposing the death sentence without a trial -- but isn't that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself?  And if the Fifth Amendment's explicit guarantee -- that one shall not be deprived of life without due process -- does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit?

Well, since you put it that way, maybe Presidential assassination of U.S. citizens by fiat isn't such a good idea. 

Via Spencer

Comments

[Ugh]

As I noted in the other thread, I'm sure Presidential assassination of U.S. citizens by fiat is just fine because Dennis Blair said that the US is "very careful[]" before they do that.

In fact they're "not careless about endangering American lives" and also get "specific permission," presumably from the President but the article didn't say that. Part of the criteria is whether "that American is a threat to other Americans." Which, of course, is a very specific criteria.

I'm sure this won't get out of hand to the point where the "terrorist" and "outside the United States" restrictions are dropped and we're dropping JDAMs from predators on drug dealers, gang leaders, and mafioso in, say, LA and NYC, because no one would view them as "a threat to other Americans."

[CharleyCarp]

Seems to me there's a art. III sec. 3 problem as well as an amd. V problem. No way this survives court scrutiny, if you can get to the merits.

Fear is the new courage.

[Ugh]

Thinking back on the underpants bomber, I guess there really is no problem, in theory, in interrogating the guy without Mirandizing him, if none of his statements or other information gained from such statements are used to convict him. The problem is, that's a big if. How can the accused be sure that that's the case? Suppose he tells them he trained at al Qaeda Camp X in Yemen, and later the US produces a videotape showing him undergoing training at Camp X that was obtained when US and Yemeni personnel raided the camp, but the US claims it obtained the tape without using any of the information obtained from him (through methods that must remain secret, of course).

Add in the fact that at least one Bush Administration official (David Addington, I believe) specifically advocated obtaining evidence against suspected terrorists in violation of their constitutional rights and using it anyway, without telling the suspect or the court about it. I'd be willing to be that was in fact done during the Bush Administration and it wouldn't surprise me if it has been (or will be) done during Obama's. Too many national security jihadists in the executive branch for it to be flushed out of the system completely.

But this idea of a "Americans Targeted for Assassination" list is just fncking nuts. I mean, jeebus, people got upset when Nixon had an enemies list.

[elm]

CharleyCarp: If a case like this makes it to the Supreme Court, I expect them to dismiss it due to a lack of legal standing.

Since people with standing have — by definition — already been assassinated, it'll be very difficult for them to bring a case.

The DOJ lawyer who files that motion would be a perfect replacement for Justice Scalia when he retires/the devil collects on his debts.

[Turbulence]

Seems to me there's a art. III sec. 3 problem as well as an amd. V problem. No way this survives court scrutiny, if you can get to the merits.

I get that "the president can assassinate any citizen any time for any reason" theory is constitutionally bogus, but is there any chance that a court will ever rule that way? Given how much the courts defer to the executive in matters of internal security, I'm having trouble seeing a court strike it down. For that matter, who would even have standing to contest this? Is that limited to the family of someone assassinated by the government after the fact?

[Eric Martin]

I dunno Turbo, even this f-ed up Sup Ct beat back some of the Bush admin's claims re: denying habeas to terrorist suspects. I think this would stand a chance.

Since people with standing have — by definition — already been assassinated, it'll be very difficult for them to bring a case.

Would you still argue that a person doesn't have standing if they are on an a list of pre-approved assassination targets? If not, Anwar al-Awlaki is on it, and still alive.

[Carleton Wu]

Ive got a couple of arguments for the limitations against citizens and noncitizens being the same:
-foreign nationals are entitled to due process etc, so any Constitutional questions become similar to those treating citizens
-as with the issues with consular relations, any position we take on foreign rights can be mirrored by other countries. And I really want to have access to my consulate if Im arrested in a foreign country- even more than that, I don't want them shooting me in the head

[CharleyCarp]

Elm, the standing challenge would come at the district court. Hence my "if" clause.

[Eric Martin]

Those are some very good points CW. Wow. I've gotta think this through. Kudos.

[CharleyCarp]

Someone shot but not killed would have a claim (if anyone).

[Ugh]

And note this gem at the hearing in the WaTimes article Greenwald cites:

Mr. Blair responded that he would rather not discuss the details of this criteria in open session.

Not only is there a "Americans Targeted for Assassination" list, but the criteria for getting put on it is secret. Geez, if getting off the no-fly list is hard, think about how you go about getting off this one.

And this:

One American, Seattle-born jihadist Ruben Shumpert, was killed by a U.S. missile strike in Somalia. Shumpert was a known Islamist wanted by federal authorities on gun charges.

I didn't even know that. Where is the NRA when you need them? You can be blown-up if you're an "Islamist" wanted on gun-charges?

[Carleton Wu]

Given how much the courts defer to the executive in matters of internal security, I'm having trouble seeing a court strike it down. For that matter, who would even have standing to contest this? Is that limited to the family of someone assassinated by the government after the fact?

Presumably before the fact the intended victim isn't notified, so how can he protest? And even if we wanted to have some kind of notification as part of the 'assassination process', that's problematic bc the timing could easily expose sources.
So the only checks beforehand have to come from within the government itself.

Post-facto, Im thinking that the government will argue that the act took place in a 'war zone' or 'conflict zone', made so by the presence of AQ and their plotting of attacks against the US. Which pretty clearly ought to work in eg Afghanistan (if a US sniper kills a target who turns out to be a citizen in the course of military ops)- but from there, it's a grey area. Is Yemen a military operational area? Saudi Arabia? Italy? St.Louis?

I think that the fundamental problem is that we want eg the GOP Indiana Senatorial candidate to say that he's going for his guns if the GOP doesn't win in 2010 without being imprisoned without trial or assassinated. But we do want to disrupt AQ operations before they occur, using military force if necessary. And, to my mind, there isn't an easy line to draw between a Saudi who says he wants to attack America and a Hoosier who says he wants to attack America.

[Turbulence]

Would you still argue that a person doesn't have standing if they are on an a list of pre-approved assassination targets?

How do I prove that I'm on the list? How do I even find out if I'm on the list? Presumably, the contents of the list are classified...I don't see a FOIA request being very effective.

[Eric Martin]

How do I prove that I'm on the list? How do I even find out if I'm on the list?

Duck down? From Greenwald:

The current controversy has been triggered by the Obama administration's attempt to kill U.S. citizen Anwar al-Awlaki in Yemen. But al-Awlaki has not been accused (let alone convicted) of trying to attack Americans. Instead, he's accused of being a so-called "radical cleric" who supports Al Qaeda and now provides "encouragement" to others to engage in attacks -- a charge al-Awlaki's family vehemently denies (al-Awlaki himself is in hiding due to fear that his own Government will assassinate him).

[DavidG]

n00b question here, but it's not clear to me under what circumstances this assassination can be carried out. How is this materially different from, say, cops shooting a guy - an American citizen even! - dead who's waving a gun around threatening people? Does this apply also to citizens who pose no imminent threat?

[elm]

Eric, Charley, and Turbulence: You are all, of course, correct. A person on the list, a person wounded but not killed, and the estate of a victim should have standing to file a case.

Still, it's not hard to imagine Justice Scalia denying standing to a person on the list, followed by a successful killing, followed by Scalia dismissing the case on the basis that the Plaintiff has died.

[Eric Martin]

How is this materially different from, say, cops shooting a guy - an American citizen even! - dead who's waving a gun around threatening people?

With the cop, it's an imminent threat. A clear and present danger. Proportional and necessary self defense/defense of others. Whereas in the present example, it's not clear what criteria are sufficient to get your dome piece a date with a hellfire missile.

Does this apply also to citizens who pose no imminent threat?

That's the million dollar question. And the follow up is: who decides?

In your cop scenario, the cop could be prosecuted for murder if his decision was unreasonable. Can the POTUS? A general?

[Eric Martin]

elm: it's not hard to imagine Scalia doing any number of f-ed up things.

[hairshirthedonist]

Mr. Blair responded that he would rather not discuss the details of this criteria in open session.

When I first read this sentence, I read "open session" as "open season."

[Ugh]

Greenwald (quoted by Eric): The current controversy has been triggered by the Obama administration's attempt to kill U.S. citizen Anwar al-Awlaki in Yemen.

I should note that, at the time, according to this Dana Priest article al-Awlaki was not the "focus" of the strike, but nevertheless has since been put on the Death List (talk about your "Death Panels").

[Jacob Davies]

Is something preventing Anwar al-Awlaki from surrendering to US officials to explain his involvement with Umar Farouk Abdulmutallab and Nidal Malik Hasan? Of availing himself of the US court system, with the assistance of an attorney, to be judged by a jury of his peers?

Generally when a US citizen has been involved with one mass murderer and one attempted mass murderer, said citizen should expect to have to speak to US law enforcement about it. I don't think that is really about "fear". It isn't "fear" that makes me think that pursuing fugitives from justice accused of conspiracy to commit or attempt murder is a good idea; it's that I think tolerating murder and conspiracy to murder is antithetical to peaceful civil society.

Further, Greenwald goes on to cite a Supreme Court case involving a Ku Klux Klan rally:

"The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views."

However, in the first paragraph of that decision is this sentence:

"Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

al-Awlaki's involvement with one actual murderer and one attempted murderer would certainly seem like they fit those criteria pretty well. Greenwald neglects to mention this, though. Of course, al-Awlaki may be innocent of any crime. The way to determine that is through due process of law. Understandably, he might be intimidated by that prospect, but I haven't seen anything to indicate that it is not an option for him. The person deciding not to avail themselves of due process in this case is al-Awlaki himself; he is choosing to make himself a fugitive from justice. The rules for how the government may treat a fugitive from justice are quite different to those concerning how it may treat any other citizen, and provided that it continues to offer al-Awlaki the opportunity to surrender to US law enforcement, and given that he is quite reasonably suspected of conspiracy to commit mass murder, given that he appears likely to continue to do so, and given that he continues to choose to hide from justice in a foreign country, well, what exactly should the US do about it? Laugh it off?

[Ugh]

From the Priest article I link to above:

The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, "it doesn't really change anything from the standpoint of whether we can target them," a senior administration official said. "They are then part of the enemy."

Do we at least have to see their al Qaeda membership card first?

Both the CIA and the JSOC maintain lists of individuals, called "High Value Targets" and "High Value Individuals," whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi's name has now been added.

Hey there's more than one list! And they're not even consistent!

CIA: How many Americans are on your list, JSOC?

JSOC: Three, why, how many are on yours?

CIA: Four! Haha, my list is bigger than yours!

JSOC: [grumbles] Oh yeah?!? [scribbles] Well my list now has FIVE people! So there.

encore une fois

[Turbulence]

Ah, thanks Eric. So there is literally one person on Earth who (1) has standing and (2) knows that they have standing. Presumably, one the government murders this one guy, no one else on the list will have standing and knowledge as long as the government doesn't brag too specifically to the press about who is next on the hit list.

What I wonder is: what happens if I have the same name as someone on the list? In theory, I'm not in any danger, but in practice, I am. Right? Does that give me standing? What if my name is an alias?

Heck, let's say I'm on the list and I walk into FBI headquarters in DC. I can't be arrested because I haven't been charged with anything, but I've got Congressional testimony proving that the US government is trying to kill me. What does the FBI do? Kill me right then and there? Take me into protective custody because the FBI cares about the constitution? Turn me over to the military? Doesn't the FBI have some legal obligation to protect me?

[chmood]

Shocked and appalled. 'Obscene' & 'disgusting' come to mind, as well.

I cannot imagine under what legalistic jiggery-pokery this notion is being "justified". "Oversight" would not improve this craziness one bit.

I think impeachment would be entirely appropriate for any president who tried to arrogate such power to him/her/self.

[Katherine]

Indict him?

[Ugh]

Jacob Davies: The rules for how the government may treat a fugitive from justice are quite different to those concerning how it may treat any other citizen

Assuming that's true (and it seems right), I don't think you can be a "fugitive from justice" unless you've been indicated and charged with a crime and a warrant issued for your arrest. AFAICT, none of that applies to al-Awlaki for purposes of US law. Indeed, the Priest article says:

Intelligence officials say the New Mexico-born imam also has been linked to the Army psychiatrist who is accused of killing 12 soldiers and a civilian at Fort Hood, Tex., although his communications with Maj. Nidal M. Hasan were largely academic in nature. Authorities say that Aulaqi is the most important native, English-speaking al-Qaeda figure and that he was in contact with the Nigerian accused of attempting to bomb a U.S. airliner on Christmas Day.

"Academic communications" and "contact" gets you put on a Death List? Admittedly that's not a direct quote, but seems awful thin.

(the Priest article does say he is wanted on criminal charges in Yemen, but I'm not sure that's a sufficient standard to allow the US government of assassinate US citizens)

[Carleton Wu]

When we were talking on the other thread, I was thinking that we might need an amendment to deal with this properly. Something like: Congress passes (via supermajority) a list of enemy organizations. The President submits evidence to a special court of individual association with this group, and upon obtaining a guilty verdict proceeds with the assassination. Within some fixed time period (say, 3 years) the US must reveal its involvement and disclose the proceedings (redacted of course).

Revealing the names on the list has upside and downside. Downside, it may reveal sources. Upside, you give people the opportunity to surrender and defend themselves against the charges. But, as above, the 'charges' in this case aren't criminal per se. Unless we (reasonably) consider membership in AQ as de facto conspiracy to commit murder.

[Eric Martin]

Of course, al-Awlaki may be innocent of any crime. The way to determine that is through due process of law.

Right. And the whole assassination without trial kind of interferes with due process.

Understandably, he might be intimidated by that prospect, but I haven't seen anything to indicate that it is not an option for him.

If they kill him, it will certainly limit his options. There's no guarantee that they don't kill him even as he surfaces to turn himself in. After all, it's not like the law would stop US officials.

Also, what Ugh said: has he been indicted? Is there a warrant? If not, is he a fugitive? By what standard?

[Carleton Wu]

Is something preventing Anwar al-Awlaki from surrendering to US officials to explain his involvement with Umar Farouk Abdulmutallab and Nidal Malik Hasan? Of availing himself of the US court system, with the assistance of an attorney, to be judged by a jury of his peers?

It's not clear that even if this course of action appears reasonable to you, that his not carrying it out makes him subject to a death sentence. Certainly, we'd object to this standard used domestically.

The rules for how the government may treat a fugitive from justice are quite different to those concerning how it may treat any other citizen

But they don't involve assassination. Or they didn't. And, as pointed out, there are *huge* constitutional objections to this.

Also, Im much less convinced than you that he is likely provably guilty of a crime. The standard is pretty high for incitement, and we'd need audio or witnesses of his inciting statements, not just al-Awlaki's involvement with one actual murderer and one attempted murderer would certainly seem like they fit those criteria pretty well. Knowing or interacting with criminals is not a crime.

[Carleton Wu]

chmood- how do you recommend that we handle AQ?

[Jacob Davies]

An indictment would certainly be a good step. You'd think a grand jury could produce that even given the relatively thin evidence against him ("ham sandwich", etc).

I'm not exactly wholeheartedly endorsing this doctrine. I just wonder what the hell we're supposed to do about people who are reasonably suspected of conspiracy to murder who then refuse to surrender to justice. I fully appreciate that al-Awlaki might have entirely reasonable fears about obtaining a fair trial in the US, but I don't think there's a legal doctrine that says that you can run away from the police just because you're afraid you might not get a fair trial. Problems with the application of justice are handled through the justice system itself. It may not be perfect but it's the best on offer.

I do also think there's a certain, er, "exceptionalist" flavor to the argument that the United States is allowed to extrajudicially kill citizens of other countries outside its borders even without a declaration of war or a criminal indictment, but is not permitted to kill its own citizens. If anything, the case for the legality of killing its own citizens is probably stronger since they are actually subject to its jurisdiction. I appreciate that to Americans the idea that the US feels entitled to kill its own citizens is scarier than the idea that it feels entitled to kill citizens of other countries, but non-citizens might see it a little differently...

[jonnybutter]

It's stuff like this, which sort of flies under the general radar - civil liberties/DOJ things, Honduras - that reveal a very ugly side of Obama - things which go beyond even extreme political caution toward the realm of gratuitousness. I'm pretty sure I can't vote for him in 2012. That's not to say I will vote for the Republican - whoever that is is bound to be worse, probably much worse. But some things are across the line, and simply unforgivable - unrationalizable. Greenwald is absolutely right on this one. His 'absolutism' is warranted over the kind the O Administration is preferring.

In the extremely unlikely event that intelligence officials knew - positively and in advance - that a US citizen was about to cause mass murder, and Obama ordered their assassination, does anyone really believe that Obama would ever be either impeached or prosecuted for having done it? Of course the Moral Null Set (the current Republican party) would affect that if they could, but...really, could they? No. Obama would be a hero.

So, what would happen if O ordered the assasination of someone who later turned out to be either innocent or less guilty? Then...oh, I see now.

I can hear someone countering: 'If you're so concerned about the Rule of Law, why not make it legal for the president to do what you would want him to do in the given situation?'. I think the answer is obvious, but maybe there's a nice legal term of art that one of you attorneys (or ethicists, wink wink) could help me out with here?

This is not a conflict about political style or priorities or even ideology. This kind of thing is triagulation of the most cynical, destructive kind. I will continue to support the president vis a vis many issues, but I don't think I can ever vote for him again.

[Jacob Davies]

It's not clear that even if this course of action appears reasonable to you, that his not carrying it out makes him subject to a death sentence. Certainly, we'd object to this standard used domestically.

But what is reasonable in the United States and what is reasonable in the Yemeni desert are quite different. If it was practical to capture him in Yemen that would be very preferable.

the whole assassination without trial kind of interferes with due process

So does fleeing from US justice to the deserts of a Middle Eastern country when wanted for questioning in relation to several murder cases in the US.

There's no guarantee that they don't kill him even as he surfaces to turn himself in. After all, it's not like the law would stop US officials.

By this standard any fugitive is justified in continuing to avoid capture because of his fear that he will be killed during an attempt to surrender. Is there any actual evidence that if al-Awlaki called the US embassy in Yemen and offered to peacefully surrender at a given time and place, he would instead be killed? Any reason to think that the US would prefer killing him to talking to him? Anyone contemplating that sort of action would be very aware that it is obviously illegal to kill a US citizen voluntarily surrendering to US forces.

[Eric Martin]

I just wonder what the hell we're supposed to do about people who are reasonably suspected of conspiracy to murder who then refuse to surrender to justice.

Here's the thing. To the extent extrajudicial killings are ever used, they should be reserved for extreme cases, under very tight ROE.

I'm not sure that there is a reasonable basis to assume conspiracy to commit mass murder in the present case. And even then, is "reasonable basis" the right standard? I would argue, no, when you're talking about being the judge, jury and executioner. Further, there would need to be oversight either way.

[Turbulence]

So does fleeing from US justice to the deserts of a Middle Eastern country when wanted for questioning in relation to several murder cases in the US.

Leaving the country is not illegal. It might be if the government had indicted him, but since there were no charges or indictment, it is not a crime. I think you're not really getting this simple fact: as a matter of law, there is no difference between you and the gentleman in question.

By this standard any fugitive is justified in continuing to avoid capture because of his fear that he will be killed during an attempt to surrender.

Not true. All fugitives until now were not in danger of being killed while turning themselves in because we didn't used to brag about our secret presidential death list. And in any event, people don't become fugitives just because Jacob Davies says they are. Until this man is indicted or charged or convicted or something, he's not a fugitive.

Is there any actual evidence that if al-Awlaki called the US embassy in Yemen and offered to peacefully surrender at a given time and place, he would instead be killed?

You mean besides the presence of his name on a presidential assassination list? I mean, if the FBI discovered his name on a mob hit list, he'd have access to the witness protection program, so I'm not sure why he can't assume that he'll be killed by the US government at anytime, including during his surrender.

Any reason to think that the US would prefer killing him to talking to him? Anyone contemplating that sort of action would be very aware that it is obviously illegal to kill a US citizen voluntarily surrendering to US forces.

Um, given that it is illegal to have a secret presidential assassination list, I'm not sure why a reasonable person should believe that the government won't kill them when surrendering.

[Eric Martin]

So does fleeing from US justice to the deserts of a Middle Eastern country when wanted for questioning in relation to several murder cases in the US.

But did he flee? And even if yes, fleeing does not merit a death penalty without trial.

By this standard any fugitive is justified in continuing to avoid capture because of his fear that he will be killed during an attempt to surrender.

If the government had previously tried to assassinate said fugitive, and the government placed said fugitive on a Death List of pre-authorized assassinations, then yes, that fugitive would have cause to be wary of avoiding the government that has taken such a stance with respect to him/her. Luckily, we won't run into this problem too often given the still rare use of Death Lists. Fingers crossed.

Is there any actual evidence that if al-Awlaki called the US embassy in Yemen and offered to peacefully surrender at a given time and place, he would instead be killed?

I'm not sure how there could possibly be evidence of a hypothetical situation's denouement. There's incontrovertible evidence that he's on a death list. There's strong evidence that they tried to off him already. Absent an official statement of intention to kill him if and when he tries to surrender, it's hard to imagine what evidence there could be that they will do so. But his fear is legitimate and reasonable all things considered.

[Hogan]

If it was practical to capture him in Yemen that would be very preferable.

If we can find him for the purpose of assassination, why can't we find him for the purpose of detention?

[Sapient]

Not that I agree with the policy or am trying to defend it, but just to understand the legal implications, it seems from the Dana Priest article (although it's murky) that the U.S. forces aren't actually doing the killing. It doesn't change the morality, but might it not change the legality? Conspiracy, etc., I know; spirit vs. letter of the law, yes; but if Americans aren't on U.S. soil, and are killed by citizens of countries where they are, to what extent does the Constitution require U.S. protection of Americans abroad?

[Carleton Wu]

But what is reasonable in the United States and what is reasonable in the Yemeni desert are quite different.

I wasn't objecting on reasonability grounds, but on Constitutional ones. That is, if we can assassinate this guy because we think he might've advocated violence, why should we not be assassinating leaders of the militia movement or white supremacists?

the whole assassination without trial kind of interferes with due process

So does fleeing from US justice to the deserts of a Middle Eastern country when wanted for questioning in relation to several murder cases in the US.

Criminals are not compelled to comply with the justice system in order to obtain their Constitutional rights. You keep putting this back on the suspect- he can be assassinated or surrender himself to the US government to be tried (or killed, or tortured, who knows). But his rights are not dependent on his actions; that's why we call them "rights", not "privileges".

Anyone contemplating that sort of action would be very aware that it is obviously illegal to kill a US citizen voluntarily surrendering to US forces.

Or one hiding out in the desert, who hasn't even been indicted for anything. Or, even if he has been indicted, if he isn't resisting capture with deadly force or presenting an imminent threat to others.

[Carleton Wu]

johnnybutter- what do you suggest as a method for dealing with AQ targets?

[Eric Martin]

Sapient,

I think that's a bit of a fig leaf for domestic Yemeni consumption. Same article notes:

"As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said. "

[Carleton Wu]

Im trying to think of precedents from American history that would be similar. Pirates? Those Wild West "Wanted:Dead or Alive" posters? Organized crime? The situation is novel, but a number of the elements have been dealt with before.

[Carleton Wu]

Sapient- if anything, that's even scarier as a precedent. The US could wink-nudge the Israelis or some other friendly government, provide location etc, and watch a US citizen get murdered.
Or, worse, we could combine that with rendition. Pick up some troublesome journalist, send him to Egypt, the Egyptians shoot him and we wash our hands because we didn't pull the trigger. (Of course, we've done something similar already).

[Jacob Davies]

Criminals are not compelled to comply with the justice system in order to obtain their Constitutional rights.

In Scott v. Harris the Supreme Court held, 8 to 1, that the use of deadly force by the police was justified in attempting to apprehend someone fleeing from them who posed a threat to the public. So I don't think that statement is accurate.

I think the idea that an indictment or warrant would be a necessary precursor is pretty sound. I wasn't exactly endorsing the policy - nor was I concern trolling, I always argue in good faith - I was & am trying to figure out what a reasonable policy might be.

The fact that no indictment appears to have been issued makes me think that they're not operating under the kind of theory I proposed above anyway, so my argument might be a red herring. I'm not apologizing for offering it though. I am trying to understand the grounds for this kind of action and what the alternatives would be. I don't think letting him continue to do what he's been doing is a reasonable option.

The only other grounds I can think of would be treating him as some kind of enemy combatant, someone actively engaged in planning attacks against the United States, therefore someone who has "taken up arms" against the US. I don't think it's a very controversial idea that even a US citizen who took up arms against US forces can be killed on the battlefield without due process, so it's a question of how far one stretches "take up arms" and "the battlefield".

[Eric Martin]

JD,

FWIW, me too. I'm not 100% certain about what I would do were I in Obama's seat. I'm trying to talk it out, but it does frighten me because of the vague and seemingly lax standards being applied for US citizens. But then, I argue for stricter standards even for lousy furreners ;)

[Turbulence]

I don't think letting him continue to do what he's been doing is a reasonable option.

Why the frak not? We let people who murder others go free every day in this country. There are all sorts of cases where the police and prosecutor know with near certainty that an individual has murdered people and will murder more in the future but are not able to secure a conviction. Do you know what they do? They let him go. Why exactly can we not apply this logic to people that the government accuses of terrorism?

More to the point, if "letting him continue to do what he's been doing" isn't an option in this case, why is it an option in the many many cases where ordinary criminals got off on a technicality or were otherwise unsuccessfully prosecuted? What principled reason do you have for arguing that we shouldn't empower police departments to draw up lists of guilty people who should be shot in the head on sight despite the fact that they haven't been convicted of any crime?

[John Thullen]

On the other hand, this policy could be used to solve President Obama's filibuster problem in the U.S. Senate.

But seriously, given the number of elected Republicans around the country, let alone some of the folks who elected them, who equate "liberal" with "terrorist" in their public utterances, no President should have this perogative.

Under a Palin/Beck administration, with Limbaugh as head of the Justice Department, Gordon Liddy heading up the CIA, and some rancid backbencher in the House heading up Homeland Security, I'd be assassinated before I'd even had a chance to become one of the terrorists who would try to save the country.

[Carleton Wu]

In Scott v. Harris the Supreme Court held, 8 to 1, that the use of deadly force by the police was justified in attempting to apprehend someone fleeing from them who posed a threat to the public

An *imminent* threat. No one is disputing that law enforcement (and even private citizens iirc) can use deadly force to protect others from imminent harm.

The fact that no indictment appears to have been issued makes me think that they're not operating under the kind of theory I proposed above anyway, so my argument might be a red herring. I'm not apologizing for offering it though.

Not at all- Im interested in trying to figure out what a reasonable approach to this might look like, regardless of what the justifications or processes the administration wants to use.

I am trying to understand the grounds for this kind of action and what the alternatives would be. I don't think letting him continue to do what he's been doing is a reasonable option.

True, but I don't want the cure to be worse than the disease. The optimal outcome may not be reachable, so starting with the assumption that it is can lead us astray. That is (as Turb suggests), I can live with outcomes where the guilty go free, but not with outcomes that threaten the American system of justice or governance.

[Eric Martin]

Yeah, Turb makes a good point. I'm think of situations like Capone and other gangsters - where guilt is "known" with some certainty by the executive in charge, and yet trial and conviction is not an option (at least at the moment).

If one can assassinate a suspected terrorist without trial, why not a rapist, murderer, drug dealer or gangster?

[Jacob Davies]

Turbulence, I guess I'm making an argument that it's not a reasonable option from a mixed practical/political/legal standpoint. The US has good practical reasons to take terrorism more seriously than other crimes and to take extreme measures to prevent & punish it, politically speaking it's not reasonable to think that a US citizen who appears to be involved in recent terrorist attacks will be allowed to walk free, and legally speaking the cases you're talking about are ones where the person has (voluntarily or not) submitted to the mercies of the justice system and due process. If someone rejects the justice system altogether, I don't think it's reasonable to expect it to just ignore him.

[Jacob Davies]

(But, again, I think that the "fugitive from justice" argument is probably not the one in operation since there seems to be no indictment or warrant, so arguing about it might be futile. I'm fairly well-convinced that an indictment or warrant would be necessary, and even if I wasn't, my army of missile-toting robot planes is only 85% complete right now...)

[Eric Martin]

JD: An indictment changes a lot. Not necessarily equaling a death sentence, but at least it sets up a legal framework.

[Jacob Davies]

I can live with outcomes where the guilty go free, but not with outcomes that threaten the American system of justice or governance.

Me too. Personally speaking I think it's not that important to do something about al-Alwaki. But I'm not a politician, general, or law enforcement official, so what I think is worth pursuing isn't going to determine what actually happens.

On the other hand I don't think that there is actually a slippery slope here. This situation is so extreme and so distinct from other situations that I don't think any attempt to extend it would be made. (That is not true of things like wiretapping where extending it to domestic uses causes much less notice and uproar.)

I'm reminded of Ruby Ridge or Waco, where neither side in those confrontations took the best course of action for resolving it peacefully, and the consequence was that people got killed without benefit of due process. 2nd Amendment types warned that this was a slippery slope to similar kinds of actions becoming routine even in much less extreme situations. But that didn't really happen. And I don't think that it's possible that a doctrine used to excuse the extrajudicial killing of someone thought to be a terrorist who is hiding out in Yemen is going to be extended to far less extreme domestic situations.

Not saying there's nothing to be discussed here, just that I don't buy the slippery slope argument.

[Turbulence]

The US has good practical reasons to take terrorism more seriously than other crimes and to take extreme measures to prevent & punish it

Those reasons might be sufficient to justify harsh sentencing, but they cannot justify converting the constitution into toilet paper.

politically speaking it's not reasonable to think that a US citizen who appears to be involved in recent terrorist attacks will be allowed to walk free

This is a very vague statement. And I think the vagueness covers up a multitude of sins. Is it your contention that if Timothy McVeigh got off on a technicality, the President would order the FBI to put a bullet in his head as he left the courthouse? That the President would face tremendous political pressure to unlawfully execute him?

I'm trying really hard to interpret the standard you describe in a way that is not equivalent to "arab/muslim citizens have far fewer rights than white citizens" and I'm having trouble. Can you help me out?

If someone rejects the justice system altogether, I don't think it's reasonable to expect it to just ignore him.

I really really don't get why you keep talking about the fugitive aspect. The one person we know about is not a fugitive from justice. He's just not. There's no reason to believe that anyone else on the list has been informed by the US government that the government is interested in them.

[Jacob Davies]

I'm trying really hard to interpret the standard you describe in a way that is not equivalent to "arab/muslim citizens have far fewer rights than white citizens" and I'm having trouble. Can you help me out?

Apparently not, since I didn't mention anyone's race or religion in any comment on this thread. If you want to make up hypotheticals and then call me a racist on the basis of them, that's your problem.

[Turbulence]

If you want to make up hypotheticals and then call me a racist on the basis of them, that's your problem.

I'm sorry. I have assumed that you're not a racist; I was figuring that you were implying that the American public might behave in racist ways ways, which is something that I myself believe.

I tell you what...Why don't you pick a non-Arab, non-Muslim terrorist and apply your claims about the political impossibility of letting them go free and explain to me what would happen? Is that doable? Or can your claims only be applied to this one particular accused terrorist?

I don't think that it's possible that a doctrine used to excuse the extrajudicial killing of someone thought to be a terrorist who is hiding out in Yemen is going to be extended to far less extreme domestic situations.

If the constitution permits a secret presidential death list with zero judicial review, then what sort of executive tyranny does it actually forbid? I mean really, can you list some tyrannical acts by the president that would be considered unconstitutional under a legal doctrine in which secret presidential death list is A-OK?

More to the point, given the abject stupidity with which the US government has determined who is and who is not a deadly terrorist, why should anyone trust their ability to do so? Remember all the random guys in Afghanistan that we sent to Gitmo because they were the deadliest of the deadly? Remember Maher Arar? Not to put too fine a point on it, but lots of people that the US government swore up and down were deadly terrorists turned out to be anything but. Given that reality, this plan has a high probability of killing innocent people.

[Jacob Davies]

I'm sorry. I have assumed that you're not a racist

Thanks, and if you didn't mean it that way, I don't want to take it that way either.

I think if McVeigh had fled to the mountains in Mexico and Mexican authorities were completely, demonstrably unable to capture him you might see a similar political dynamic. I truly don't think it's about race or religion in this case.

I think the distinction is between someone who has been through the justice system (voluntarily or not) and may or may not be acquitted, and someone who refuses to cooperate with the justice system. From the discussion here it's clear that the fugitive doctrine does not apply completely in this case, but I'm still not convinced that al-Awlaki is not choosing not to surrender peacefully, even if the doctrine used to justify killing him is that he is an enemy combatant. Even combatants may surrender peacefully; I do not believe that if he tried to surrender, he would be killed, because that would clearly be illegal no matter what status he was held to be in.

If the constitution permits a secret presidential death list with zero judicial review

But if they're operating under an enemy combatant rule, the argument will be made that it is not extra-constitutional but rather within the remit of the President as head of the armed forces. In which case it certainly could not be extended to domestic use under posse comitatus anyway.

I totally agree that there is substantial risk of killing innocent people with any program like this. I'm just not sure what the suggested alternative is. Presumably if they thought they could capture someone like al-Awlaki alive, they would be trying to do so - I don't think they think killing him is preferable, only a poor second-best to capturing him.

[Carleton Wu]

I think if McVeigh had fled to the mountains in Mexico and Mexican authorities were completely, demonstrably unable to capture him you might see a similar political dynamic.

How about the members of violent pro-life groups? I don't think there is any public pressure to declare these groups enemies of the state and start killing their members. Yet they advocate violence, and that violence has occurred numerous times. Or the mafia- as much of a problem as organized crime has caused, I dont know that many would have accepted the extrajudical murder of mafia leaders.

[xanax]

Can anyone lure Hilzoy out of retirement for a quick comment? This thread all but begs for her wise perspective.

[Brien Jackson]

"Am I the only one who thinks "assassination" is kind of a loaded word here? I'm not exactly following this stuff to the letter, but as far as I can tell, no one's talking about snipers shooting guys through windows in Omaha, it seems more like they're talking about military strikes abroad. "

[Sebastian]

Wow, how did I miss this one? This is way out of bounds, and completely unconstitutional:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I suppose the administration could be arguing about the "time of war" exception? But if so it is crazy on a level that goes well beyond say the Patriot Act.

(And arguably "nor be deprived of life, liberty, or property, without due process of law" is a separate right which doesn't have the war exception but I'm not sure how that plays out.)

[Julian]

What is the difference between snipers shooting guys in Omaha and "military strikes abroad?"

"Military strikes abroad" = snipers shooting guys in Yemen? Is that the big difference?

Assassination? NIMBY!

For all we know, "military strike" will be a precision guided missile that accidentally kills a dozen civilians along with the terrorist.

[elm]

Sebastian: I don't even think the 'time of war' clause covers this. I'd read the entirety of except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger as a unit — viz. Grand Jury protections do not apply to members of the military during War or public danger.

The only legal cover I can imagine for this is 1) the difficulty of establishing legal standing or 2) the principle of unbounded executive power during wartime.

In any case, it's clearly unconstitutional. A Presidential decree can't possibly constitute due process, certainly not when the aim is to deprive that person of his life!

I hardly need mention that, in the eyes of the law, nothing distinguishes Anwar al-Awlaki from anyone in this thread (except that al-Awlaki is a U.S. Citizen, which isn't true of everybody in this thread).

[Jesurgislac]

Jacob: I totally agree that there is substantial risk of killing innocent people with any program like this. I'm just not sure what the suggested alternative is.

Would you consider it acceptable and reasonable if the government of India launched a missile strike to kill the Butcher of Bhopal? If not, why not?

Warren Anderson has been a fugitive from justice since 1992, for the culpable homicide of over 25,000 people. If it's OK for the President of the US to order the assassination of people claimed to be involved in terrorist strikes (or planning terrorist strikes) it is presumably A-OK for the government of India to launch a missile strike at Long Island to take out someone who is directly responsible for the deaths of far more people.

[Phil]

I'm reminded of Ruby Ridge or Waco, where neither side in those confrontations took the best course of action for resolving it peacefully, and the consequence was that people got killed without benefit of due process. 2nd Amendment types warned that this was a slippery slope to similar kinds of actions becoming routine even in much less extreme situations. But that didn't really happen

Not to get all wacko militia nutball up in here, but you might want to read Radley Balko more frequently.

[novakant]

Why the focus on US citizenship? Is it ok for the US president to order the assassination of foreign nationals? Not assuming anybody says it is, but have a suspicion that the latter will raise less eyebrows...

[Hartmut]

Goddddddaaammmmnnnnned Typepad. Another post went away. Fortunately I secured it by Ctrl-C
---
The Bhopal case might not be ideal here, since the killing of the people was not the intent. A far better example would be the fugitive terrorists that blew up that Cuban airliner, escaped from prison in South America and are now sheltered by the US in Florida. They did commit acts of terrorism, they were properly sentenced in a court of law, they absconded from justice and are protected by unaccountable parties that are even under suspicion of complicity in the above mentioned acts of terrorism.
The US would clearly not take it lightly or applaud, if the Castros would send agents to take care of those guys (even if it was just abduction to bring them to court in Cuba) or would drop some Daisy-Cutters or MOABs on Mimai to take them out.

[Turbulence]

The Bhopal case might not be ideal here, since the killing of the people was not the intent.

Intent is not strictly necessary in cases where people failed to take sufficient precautions. I think summary execution would be well justified. That is to say, if an indian government operative shot Anderson and was brought to trial and if I sat on the jury, I would not vote to convict.

A far better example would be the fugitive terrorists that blew up that Cuban airliner

Indeed.

The US would clearly not take it lightly or applaud, if the Castros would send agents to take care of those guys

I suspect that the cable news channels would present this as an act of war against the US. The Whitehouse would probably be more measured and "only" describe it as a horrific crime against universal norms of civilization.

[Eric Martin]

The US would clearly not take it lightly or applaud, if the Castros would send agents to take care of those guys

True. Although we didn't take action against Pinochet when his regime committed an act of terror on U.S. soil (in Washington D.C. no less) - which killed a U.S. citizen! - in the case of Orlando Letelier and Roni Moffitt.

But he sure worked miracles with the economy!

[jonnybutter]

Maybe I should be putting this comment on Eric's newer post, but I didn't want to just comment here and run.

Promulgating legal justifications for illegal/unconstitutional actions are indeed a slippery slope. Would John Walker Lindh have been taken into custody later in the Bush administration - after Gitmo, Abu G, etc.? If you ruin the trust people might have had in your commitment to the rule of law, you can't very well blame them for consequently not trusting your commitment to it (and turning themselves in, in this case, even if they haven't been indicted...).

The Bush Administration did enormous damage to, among (many) other things, the US's reputation as a place in which rule of law obtains. But the Obama administration seems determined - in this and other DOJ/intelligence instances - to evade its own responsibility. It's one thing to grapple with the economic mess Bush/Cheney left - I give them a lot of leeway on that. But in this other realm, 'Bush did it!' is sounding more like an excuse than a justification.

How much of this is about political and legal ass-covering and how much about 'keeping America safe'? I can't escape the conclusion that there is more of the former than is seemly, considering the stakes.

The 'smart' Poli. Sci. answer to this is that, of course, it's perfectly rational for any president to not want to relinquish any power voluntarily. I hate to sound corny, but I kind of admire how Washington (the president) acted irrationally...

[elm]

novakant: "Why the focus on US citizenship? Is it ok for the US president to order the assassination of foreign nationals?"

On the contrary! If a King President wishes to decree the death of one of his subjects> citizens then that is, essentially, an internal matter.

If a King head of state decrees the murder of subjects of other Kings foreign citizens, then he clearly oversteps his authority.

[Sapient]

Okay, again, just to be contrary: what if we are in a legitimate "war against al Qaida." If an American "puts on the uniform" of al Qaida, what about killing an American who is part of the enemy army? I'm sure that there were Americans who put on the Nazi uniform who were killed by the American military, and it didn't present a Constitutional problem.

The rules, obviously, get murky when our "war" is against something as vague as "terror" (an idea that fortunately Obama has abandoned) or even "al Qaida" (better than "terror" but still not solid). If al Qaida is an army of enemy soldiers and Americans are soldiers in that fight, I don't think killing them qualifies as assassination. The problem isn't just in the "killing Americans" idea; it's the "war against al Qaida" construct.

[Eric Martin]

I'm sure that there were Americans who put on the Nazi uniform who were killed by the American military, and it didn't present a Constitutional problem.

There were many.

If an American "puts on the uniform" of al Qaida, what about killing an American who is part of the enemy army?

Is there an uniform? If so, what does it look like?

The rules, obviously, get murky when our "war" is against something as vague as "terror" (an idea that fortunately Obama has abandoned) or even "al Qaida" (better than "terror" but still not solid). If al Qaida is an army of enemy soldiers and Americans are soldiers in that fight, I don't think killing them qualifies as assassination. The problem isn't just in the "killing Americans" idea; it's the "war against al Qaida" construct.

True, but also the "uniform" issue. Killing a NAZI in uniform by the military during a war is not the same as the US govt declaring someone to be al-Qaeda and, on the strength of its accusation alone, killing that person wherever he or she then-presently resides.

Point being: we've made, literally, thousands of mistakes in terms of identifying innocent people as al-Qaeda. The uniform is not so obvious.

[Jesurgislac]

The problem isn't just in the "killing Americans" idea; it's the "war against al Qaida" construct.

The problem is: Can you prove the person you intend to kill is in fact a member of al-Qaida, and could be be found guilty of terrorism in a court of law?

The answer, for the vast majority of people whom the US has identified as "guilty of belonging to al-Qaida" over the past nine years, is a resounding No.

And we know this, because the individuals so identified were, eventually, cleared and released - they were alive.

The "Taliban fighters"/"al-Qaida terrorists" who were rounded up and killed in Afghanistan, in December 2001 (the Dasht-i-Leili massacre) after the siege of Kunduz, cannot be cleared - they are buried in a mass grave eight years ago. Were all three thousand of them actually guilty? Were any of them guilty of anything but fighting in a war in their own country? Even after an investigative journalist films the gravesite and interviews the witnesses the lack of interest in the victims alleged to be enemies of the US is ... pretty much total.

Every objection that is made to capital punishment in a judicial system applies to extra-judicial assassination, only more so: with the added factor that if you send a missile to kill someone you're sure is a terrorist, you may kill the alleged terrorist, and you will also kill the innocent civilians who are standing next to him.

[Carleton Wu]

The problem isn't just in the "killing Americans" idea; it's the "war against al Qaida" construct.

I think both are problematic. That is, even when we were at war with Germany the government didn't have the right to pick someone up off of the street of Boston, accuse them of being a German agent, and remove them from the civilian justice system.
ex Parte Quirin is misunderstood on this point: the accused didn't contest that they were trained by Germany and brought to the US to commit wartime sabotage. Without that point, there is no civilian justice system except insofar as the Executive permits it- which is pretty clearly not what the founders had in mind.

[hairshirthedonist]

I'd like propose starting with this question and work back from it (if necessary, depending on the answer):

Would it be okay for the president to order a missile strike on the known hiding place of Osama Bin Laden with the intent of killing him?

[Jesurgislac]

Would it be okay for the president to order a missile strike on the known hiding place of Osama Bin Laden with the intent of killing him?

Would it be okay for President Mahmoud Ahmadinejad to order a missile strike on the known hiding place of George W. Bush with the intent of killing him?

Same question: same answer. Bush is a known criminal guilty of causing the deaths of over a million people - a lot more than Osama bin Laden. Would it be OK for the ruler of another country to have him killed - given that it can be assumed that the US will never surrender him for trial?

[hairshirthedonist]

Technically, Jes, you didn't answer the question. ;)

[Carleton Wu]

Would it be okay for the president to order a missile strike on the known hiding place of Osama Bin Laden with the intent of killing him?

I think Id accept that as a reasonable extra-Constitutional solution to a problem not handled well by the Constitution. But leaving this as the status quo invites abuse (just as the institutionalization of any overt violation of rules erodes respect for those rules).
One of the biggest differences between Osama and Joe Schmoe is that Osama has publicly acknowledged his complicity in the 9/11 attacks and his desire to conduct more attacks; this makes it very different IMO from a target who is merely suspected of being affiliated with AQ or involvement in some plot.

[Jesurgislac]

Technically, Jes, you didn't answer the question. ;)

No, it would not be okay.

[jonnybutter]

the institutionalization of any overt violation of rules erodes respect for those rules

Thanks Carlton Wu, for being succinct where I was long-winded. Agents of the US surely tortured before the Bush administration, but perverting the law to legalize torture isn't evidence of a respect for the law - rather the opposite. Ass-covering.

[Eric Martin]

Agree with JB and CW.

[Marty]

"Agree with JB and CW."

Actually, me too.

[Eric Martin]

Must be a special friday ;)

[Sebastian]

"Thanks Carlton Wu, for being succinct where I was long-winded. Agents of the US surely tortured before the Bush administration, but perverting the law to legalize torture isn't evidence of a respect for the law - rather the opposite. Ass-covering. "

I agree on the issue of torture, but I'm not sure I agree with "the institutionalization of any overt violation of rules erodes respect for those rules" as a general principle. Doctor assissted suicide comes to mind as a possible counter-example. Though come to think of it maybe it is a possible example instead. I'll have to think about it.

[hairshirthedonist]

Would anyone care to address Jes' question regarding Ahmadinejad ordering a missile strike on the known hiding place of George W. Bush with the intent of killing him? I don't know if I'm up to it.

That aside, I'm with Marty, Eric, JB and CW.

[fledermaus]

"This situation is so extreme and so distinct from other situations that I don't think any attempt to extend it would be made."

JD, this situation is not that extreme. Let's look again at the claims:

although his communications with Maj. Nidal M. Hasan were largely academic in nature. Authorities say that Aulaqi is the most important native, English-speaking al-Qaeda figure and that he was in contact with the Nigerian accused of attempting to bomb a U.S. airliner on Christmas Day.

The problem with hindsight and this stuff is the most ordinary things take on sinister meanings once you become a target. John McCain sagn a song on the campaign trail about mass murder and he is still an upstanding Senator and almost was president. Picture this you go to an outdoorsman's show. There you chat up a guy selling fishing lures. He mentions a cabin he has near your favorite lake that he rents out.

You go and have a wonderful time, catch a bunch of fish. Upon getting back you are taken away in an unmarked car to a federal holding facility. You will not know what you are accused of, and they won't be any hurry to tell you. They will then pour over whatever they can find in your bank records and other papers, communications (terrorist contacts)

All because the guy you rented the cabin from uses it for his nationalist militia or Weather Underground II or what have you. Once again, sitting in your cell, you will know nothing of this.

The problem here is that, regardless whether this particular guy is the threat they say, they do not need to determine if they made a mistake. It's embarassing all around.

[fledermaus]

also, the lack of evidence against someone far more often increased suspicion i.e. "This guy is really good at covering his tracks" rather than a re-evaluation of their initial position.

[Marty]

"also, the lack of evidence against someone far more often increased suspicion i.e. "This guy is really good at covering his tracks" rather than a re-evaluation of their initial position."

Not sure I believe this, or at least that there aren't any examples to cite one way or the other.

[fledermaus]

Conceded, that is probably overstatement on my part. But it is a very real reaction if no one forces them to separate what the think they know with what the evidence actually shows. Thus the whole court thing.

[John Thullen]

"Would it be O.K. for the President to order a missile strike on the known hiding place of Osama Bin Laden with the intent of killing him?"

On this particular news day, I would wait until Richard Shelby, Tom Tancredo, and any number of these individuals who mascarade as Republicans and Americans, but who share bin Laden's goal of destroying the U..S. Government, crowd into the tall one's cave to mull over their mutual strategies, and then launch away.

Kill as many enemy birds with one stone as possible.

Missiles are expensive.

[Jacob Davies]

My major problem with this discussion is that the anxiety expressed here is predicated on 1) the lawlessness of this particular action being that the targets are US citizens, and 2) the fear that this will be extended to domestic use in the US.

My comments yesterday were addressed to those concerns. I think there was an interesting discussion about whether the "fugitive from justice" doctrine could be held to apply, and I was convinced otherwise. In light of that I can only think that what is held to apply is the "enemy combatant" doctrine, and I think that the lawlessness of that is far less clear. There may not be a declared war against al Qaeda and they may not wear uniforms, but there was Congressional authorization for action against them, and al-Awlaki is reasonably believed to be involved with al Qaeda. Such a belief may or may not be accurate, but it's not unreasonable. As such the legal case for action against him seems far stronger than the legal case for killing non-citizen innocents in attempts at targeted killings in Afghanistan and Pakistan, for instance.

In any case what I find strange is the implied idea that US citizens possess a right not to be killed by the US government that non-citizens do not, or that it is even a hair more outrageous or offensive for the US to kill citizens than non-citizens. To the contrary. As a practical matter, US citizens already have far greater protection than non-citizens and are far less likely to be mistreated if they surrender to authorities, so as a practical matter they possess options to avoid being killed by Maverick missiles that non-citizens do not.

Secondly, the fear that this will be extended to the US doesn't seem credible, and again seems to come from an exceptionalist viewpoint, where there is something especially troubling about a child in Peoria getting a bomb down his chimney compared to a child in Pakistan. Posse comitatus prevents the military from conducting law enforcement operations inside the US, and the enemy combatant doctrine is far less likely to be upheld inside the US; and as a practical matter, Americans may be willing to tolerate people in other countries having their houses destroyed by missiles but they're probably not going to like the idea that it happens here. The concern that "it could happen here" is 180 degrees from where the real problem is.

[Marty]

"Kill as many enemy birds with one stone as possible.

Missiles are expensive."

I must decidely disagree. The stimulative effect of having to replace multiple missiles far outweighs the actual cost.

Therefore, if we could get Richard Shelby, Mary Landrieu, Ben Nelson, oh heck, its a long list we wouldn't necessarily agree on. So you pick one and I'll pick one, up to ten each to put in the cave. Then we should just make sure with a few missiles apiece.

[Darkling]

JD: There may not be a declared war against al Qaeda and they may not wear uniforms, but there was Congressional authorization for action against them, and al-Awlaki is reasonably believed to be involved with al Qaeda. Such a belief may or may not be accurate, but it's not unreasonable.

So ignoring for the moment the nationality of the person in question, is extra-judicial assassination justified? What is the level of evidence that should be required? Presumably, something stronger, much stronger than "reasonably believed".

Various comments in this thread have brought up the governments track record and it's not great, innocent detainees and people incorrectly placed on the no fly list just for starters. Even looking at criminal cases where all the wheels of the justice system have been turned, innocent people still go to prison and in some cases are executed.

Do you still want the Government taking irreversible steps where there is no chance of reprieve? How would you appeal?

For sure it's for the worst of the worst, but who gets to make that call?

[elm]

Jacob: I, for one, think that domestic use against only U.S. Citizens would be a whole lot less problematic. That gives people two reasonable defenses and also leaves 95% of the world alone. It wouldn't be great for me or most of my friends, but if that was the policy I'd set out to take myself out of the target groups immediately.

(There's lots of examples of Kings and dictators killing their own people for whatever reasons and in whatever quantities pleases them. The rest of the world normally doesn't intervene or pay any attention.)

"Reasonable belief" is a bit of an interesting legal standard to propose. Where do you think that would fall on the escalating scale of Probable Cause, Preponderance of Evidence, and Beyond a Reasonable Doubt?

(Also, Congress is specifically forbidden from legislating an individual's guilt. "Bills of attainder" being forbidden along with ex post facto laws and whatnot.)

Marty: I don't think anyone here will speak a kind word about Ben Nelson. I was a bit puzzled the other day to see von describe him as an ally of liberal/progressive groups.

[Jacob Davies]

Probable Cause, Preponderance of Evidence, and Beyond a Reasonable Doubt

None of which standards are ever held to apply to military actions against opponents outside the United States. In this case, the opponent group was designated by Congress.

As for the justification for "extra-judicial assassinations", I don't think it's a question you can ask in isolation. I don't think what the US is currently doing in Pakistan and Afghanistan is likely to be worthwhile, or is morally justifiable overall. But I think it's insufficient to just say that, given that it continues to happen anyway. There are greater and lesser evils. The United States is conducting a military campaign against al Qaeda whether I think it should or not.

The alternative to drone airstrikes is not doing nothing. It's a ground campaign, or area bombing. "Assassination" has taboo connotations, but as a military tactic it has a long history, and since it targets combatants, in my opinion it is no more or less legitimate than any other violent means. In some circumstances it may cause less death and destruction than the alternative. I wouldn't romanticize a ground campaign, which tends to slaughter civilians in droves, destroy infrastructure and property, and draw in numerous combatants on both sides to be killed or wounded. So I'm not convinced that the alternative to targeted airstrikes is any less bloody or more palatable. I can't say I'm entirely convinced to the contrary, either, but I'm convinced enough that I think that I think they may be the lesser of two evils in many cases. So yes, given that one way or another the United States is going to try to destroy these groups, I think targeted killings are not a less-moral or less-justified method than the alternative violent methods that would be used.

[Sapient]

For the record, I believe that al Qaeda should have bee treated as an international criminal conspiracy, and I'm uncomfortable with having treating them as an "enemy" against whom we're at "war."

That said, if we are treating them as enemies in war, I don't see how it's a problem to target an American who we suspect, and publically state we believe, is a part of al Qaeda. At a certain point, in war, it seems ridiculous for an American citizen to expect due process if s/he is living in a place where an enemy is launching hostile actions and is suspected (and publically accused) of participating in hostility against the United States, These days, no "enemy" seems to wear a uniform - hasn't happened in any war I can think of since Korea. To say that we can only engage in war against people who wear uniforms is ridiculous. If our enemies in WWII had decided that they could have more easily won by dressing in civilian clothing (hard to imagine, true) we should still have been able to fight against them, and still targeted Americans who we believed to be fighting with them. I don't find myself agreeing with Jacob Davies very often, but in this I think he's right.

The problem seems to be the fact that we're defining war as being unbounded by geography since there is no place where an American can find safe haven where due process rather than battleground prerogatives rule. If it's legitimate to have a war without geographical boundaries, then the rules need to change. (Perhaps adopting US civil war standards would be appropriate - where since we're not fighting against another country, we're in a global civil war?)

[elm]

"If our enemies in WWII had decided that they could have more easily won by dressing in civilian clothing (hard to imagine, true) we should still have been able to fight against them, and still targeted Americans who we believed to be fighting with them."

What of those who did not fight with them but offered religious guidance? Should they have been specially targeted?

[Katherine]

This piece is several years old, but relevant & worth reading.

[Slartibartfast]

In the event that you're the same Katherine who front-paged here at OW, my best wishes to you, and my hopes that you are doing well.