Ug. This topic really depresses me. I cant believe that more people are not outraged.
What will said. It's kind of amazing to me that Josh Marshall has jumped on the assassination bandwagon. And that he makes the case so weakly, to wit.
Is it really possible that a US citizen can be operating abroad as a key leader of an international terrorist group, organizing and inspiring terrorist attacks within the US, and the US has no recourse other than to secure an arrest warrant and arrest him somewhere in the wilds of Yemen? That strikes me as preposterous.
I'm impressed with the way he adopts the rightwing trope that the requirement to "secure an arrest warrant" imposes some kind of outrageous burden on law enforcement. And how he conflates "organizing and inspiring" without offering any evidence about the "organizing" part.
Yes, you have to arrest these guys. Even bin Laden.
US has no recourse other than to secure an arrest warrant and arrest him somewhere in the wilds of Yemen?
Fuck yes. That's what the rule of law means, fuck-o. [Marshall, I mean]
One more little gem from Marshall:
The key in my mind is that al-Awlaki is or was essentially waging war against the United States from abroad.
Actually, no, he wasn't. He was accused of plotting crimes.
4: Yeah, this is probably pure ignorance on my part, because I don't follow these stories as closely as I should to have strong opinions about them. But is there a list somewhere of specific terrorist attacks he was linked to? Because without that, I have a real problem with doing anything at all to him for 'inspiring' terrorism.
If you have such convincing evidence that he is a terrorist, present it to a judge. If you dont, then you shouldnt be allowed to kill him.
Not sure what is so difficult about this concept.
I am a little surprised that the government did not bother to gin up a justification under the doctrine of double effect; there is daylight, after all, between the sort of "targeted killing" that Glenn Greenwald is agitating his Asperger's over and "we bombed that compound because _______; the secondary target happened to be there at the time."
7: I think they're deliberately not ginning up justifications to make the point that assassination is totally OK, not even wrong a little.
Marshall again:
I can't see the argument, either legally or logically.
At no point in his piece does Marshall attempt to make an argument regarding the law, but he concludes that it must be legal because, well, because.
7: I like how you seem to assume that Greenwald is entirely correct in his rendering of the facts and his interpretation of them, yet Greenwald is "agitating his Asperger's" in a way that could have been avoided if only the government had covered its tracks better.
Greenwald is such a nerd.
But I will admit that I genuinely do take comfort in the fact that the government did at least make some minimal effort to argue that it was trying to apprehend bin Laden.
The secondary argument doesn't work if the guy was the target, and they shot at his car while he was driving down the road. (Or hiding it it, having seen the drones coming while having a picnic lunch, or something.)
Isn't this horse already well out of the barn with
Qa'id Salim Talib Sinan al-Harith?
What's the difference between killing Aulaqi and shooting down Adm. Yamamoto?
re: 10.last
Really? I didn't see any justification made at all. They just shot him, no? Execution style.
11: Um, shooting down a plane carrying military personnel in a declared war between nations seems kind of easily distinguishable from killing a civilian accused of associating with and possibly organizing and inspiring terrorists. Am I missing something that makes this a hard question?
If you remember the early run-up to the Iraq War, then you won't be surprised that JMM has "reluctantly" signed on to extrajudicial killings of American citizens. This isn't his first performance of this dance. As for Greenwald, he's spot-on about this:
What's most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar ("No person shall be deprived of life without due process of law"), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What's most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government's new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government. Many will celebrate the strong, decisive, Tough President's ability to eradicate the life of Anwar al-Awlaki -- including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry's execution of scores of serial murderers and rapists: criminals who were at least given a trial and appeals and the other trappings of due process before being killed.
From an authoritarian perspective, that's the genius of America's political culture. It not only finds ways to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process). It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.
If wikipedia is to be believed, the Fifth Amendment doesn't apply abroad:
In 1999 a U.S. court found that the Fifth Amendment does not apply in the case of overseas torture of aliens. Jennifer Harbury, a U.S. national whose husband Efraín Bámaca Velásquez had been tortured and murdered by CIA officials in Guatemala, complained that these actions violated her husband's Fifth Amendment right not to be deprived of life or liberty without due process of law. On December 12, 2000 the Court of Appeals for the District Court of Columbia rejected this claim, citing a lack of jurisdiction, since the events were planned and controlled in the United States, but the actual torture and murder occurred in Guatemala, a location where the U.S. did not exercise "de-facto political control".[45]
Legally, I believe the distinction is that the Al Quaeda leadership are defined as enemy combatants, and can therefore be killed by the US (which, on this theory, is in a state of combat with the organization) without process. The extraterritoriality of the 5th Amendment doesn't enter into it. The secondary effect doctrine isn't necessary -- in fact, there are very good arguments that targeting your killing at combatants is required under international law. Carp's analogy to Admiral Yamamoto is a good one.
All that assumes that there's a defined enemy called "Al Quaeda" with which we are in an armed conflict, and I sometimes have my doubts about that. But you take that as true, and there are decent reasons for doing so, there's nothing per se illegal about targeted killing of organizational leaders of the armed force you're combatting.
I don't really like to celebrate the killing of anyone, and it might be the right political or moral choice to arrest people; I just don't think the argument that the killing violated the US constitution as a matter of law is a very good one.
You dont think you have to make some showing to someone that he is a member of some terrorist leadership?
Just bc the Governtment says he is, then he is??
16: You cant just throw "organizatonal leaders" without some basis. The Constitution is pretty clear that I am allowed to say I want the United States to be destroyed.
And of course there are questions about the extraterritoriality of the Fifth Amendment. But the broader point is that if you've got an enemy combatant (as otherwise properly defined by international law) you can kill him without violating the 5th Amendment. You might argue that any give Al Quaeda member is or isn't a combatant, but in the case of senior leadership that's a harder case to make.
re: 16.2
I don't buy it at all. Nor should anyone else. People were rightly up in arms when the British shot IRA members, for example. Arrest, try, convict. Anything else is bullshit.
Well, it's probably true that you can't just throw around the phrase "organizational leader.". But is there any dispute that this guy actually was a leader of Al Quaeda (maybe ther is and I've missed it).
19 -- maybe, but that's a different argument than "this violates the Fifth Amendment to the US Constitution."
12: LB alludes to this in the original post, referring to "the obviously not terribly strong assumption that we were trying to arrest him rather than kill him." There was an (admittedly weak) effort made to suggest that had he been, say, on the ground with his hands on his head when the Special Forces burst in, they would have taken him alive.
14: Yeah, I remember. I really thought he had learned something in the interim. I've never seen him argue in favor of the worldwide battlefied before.
I don't think "war" is a good idea. Legally, though, there's just no doubt at all that we are engaged in a war, and that war is against the group that engaged in the 9/11 attacks. I don't like it, but this is the legal reality. There's nothing wrong with contending that all 9 justices of the Supreme Court, the Congress, and the Executive are wrong about this.
re: 22
My understanding is that when he was shot he was unarmed, no?
Legally, though, there's just no doubt at all that we are engaged in a war
Did Congress declare a war?
20 -- I don't think he was a leader of AQAP. Lots of people who understand Yemen have been saying for months that the various leaks from anon officials way overblow his role in the organization. US officials were afraid of him, though, there's no doubt about that. And, I'm not going to say the fear was irrational. Aulaqi brought special skills to the table.
25 -- Close enough under the current state of the law.
the only Google result for "Qa'id Salim Talib Sinan al-Harith" is someone who died 1400 years ago. I'm stuck.
What exactly was this guy supposed to have done other than being a visible leader of Al Qaeda?
Apparently, helped organise things like the Fort Hood shootings. Note that as far as arresting him goes, not only was the US government unable to arrest him, so was the Yemeni government.
The crucial point seems to be his combatant status. The US government is perfectly entitled to shoot its own citizens, on its own territory, if they are combatants (legal or illegal) engaged in hostilities against the US. It did so en masse in the Civil War, to pick the most obvious example. Stonewall Jackson wasn't murdered, or illegally assassinated. Even if he hadn't been killed in battle - even if he had been killed by an airstrike while asleep (supposing Lincoln to have had an air force) - he would still have been legally killed.
The big question is: was Awlaki a combatant in the same way that Stonewall Jackson was?
is there any dispute that this guy actually was a leader of Al Quaeda
As far as I've been *shown* he was nothing more than a propagandist, but who really knows? Certainly not any of us. The Obama administration never charged him with a crime, and not only refuses to show any evidence of his involvement in criminal activity but won't even say what crimes they suspect him of committing.
I haven't finished with yesterday's CTC report on AQAP yet, but it's really good reading.
30 -- I agree with this -- but note that you don't have to show that a member of the enemy force has committed a crime.
Certainly not any of us.
I know all kinds of stuff that I haven't told you.
32:
But, you have to demonstrate that they are a member of the enemy force.
Well, you should have to show.
Legally, though, there's just no doubt at all that we are engaged in a war, and that war is against the group that engaged in the 9/11 attacks.
Really? I don't understand this. In what sense are we "at war" with al Qaeda, but we were not "at war" with the Weathermen or Black Panthers or various rightwing militias. Or can we kill any of them extra-judicially?
24: Yup. But not lying on the floor with his hands on his head. His threat status couldn't be determined sufficiently in real-time, they said. And no, I don't believe it either. But, as Flippanter suggests, I think it was nice that the government at least cared enough to pretend.
In what sense are we "at war" with al Qaeda, but we were not "at war" with the Weathermen or Black Panthers or various rightwing militias.
Congress never authorised the use of military force against the Weathermen?
32: I think, though, that we have accepted an incredibly broad definition of enemy force. Al Qaeda is more of an ideology than an organization. The notion that we can just off anybody associated with the name sounds to me like saying during the Vietnam War that we were justified in killing any Communist anywhere at any time.
I think the more interesting question is, under the same legal framework, who in the US would a uniformed member of Al Qa'ida be allowed to kill with legal impunity? Cheney? Biden? Prof. Yoo? Ann Coulter?
Is there a uniformed member of Al Qa'ida?
37 -- AQ has membership and an actual organization.
Stonewall Jackson wasn't murdered, or illegally assassinated. Even if he hadn't been killed in battle - even if he had been killed by an airstrike while asleep (supposing Lincoln to have had an air force) - he would still have been legally killed.
He was accidentally killed by Confederates, not by agents of the USG.
I've gotta say, I don't understand why people are upset about this. I'm against the "war on terror" and think we shouldn't be spending the time, money, and lives on an effort on something where the cons outweigh the pros. But when tallying up the pros and cons, killing actual members of al qaeda is on the positive side of the tally. I don't know much about this particular case, but presumably if you'd asked the guy (before we killed him, obviously) whether he was at war with the US he'd have said yes.
Just because you're opposed to a war we're in, doesn't suddenly make it not a war.
AQ has membership and an actual organization
Council on Foreign Relations, August 2011: "The international crackdown that followed the 9/11 attacks greatly cut into al-Qaeda's resources and many of al-Qaeda's former leaders were captured or killed, leading experts to question the relevance of al-Qaeda's central leadership. In these years, al-Qaeda transformed from what was once a hierarchical organization with a large operating budget into an ideological movement. Whereas al-Qaeda once trained its own operatives and deployed them to carry out attacks, it is just as likely to inspire individuals or small groups to carry out attacks, often with no operational support from the larger organization."
Al Qaeda exists like Earth First! exists.
Apparently, helped organise things like the Fort Hood shootings.
My understanding was that he exchanged some emails with the Fort Hood shooter some time before the shootings, but that it was more generally on the topic of radical Islam, and was a far cry from actually "organizing" anything. They didn't raise any red flags at the time with the FBI guys who were listening in on his email.
The shootings themselves were more the work of a loan nut, and the only reason they were called "terrorism" while, say, the Virginia Tech shootings were not, is because the shooter was a Scary Mooslem, and that Fox News decided Obama was a wimp for not treating it like terrorism, so naturally Obama capitulated.
37 violates the analogy ban, and illustrates why we have the analogy ban (which is that no one ever agrees that you've chosen the right analogy, in this case al qaeda is actually analogous to the Viet Cong (which is again an organization not a country) while all followers of wahabism are analogous to all communists.)
killing actual members of al qaeda is on the positive side of the tally.
Really? How many AQ leaders have we killed and has our method of killing them made us safer? Or has it turned more people against us?
My non-expert opinion is that it has turned more people against us.
43 makes some sense to me. I think it's reasonable to argue that although assassinating members of AQ would have been legal a few years ago, it shouldn't be now.
The shootings themselves were more the work of a loan nut
Fucking Fannie Mae.
The shootings themselves were more the work of a loan nut
He may be on loan from Real Madrid, but Al Qa'ida is paying his wages.
41: indeed, this is central to my point.
Damn. OK then, Leonidas Polk.
46: I don't object to the proposition that U.S. military action has turned many people in Central Asia/the Muslim world/those French schools with the cutesy nicknames against us, but I'd speculate that the reason is the substantial noncombatant casualties of U.S. action, rather than the odd dead leader/preacher.
I[m playing with the theory that we could have done this in a way that would be less provocative and controversial, but that would have defeated the purpose. Because maybe the purpose has more to do with keeping the White House safe from a Republican than keeping the U.S. safe from Al Qaeda.
Because maybe the purpose has more to do with keeping the White House safe from a Republican than keeping the U.S. safe from Al Qaeda.
Yes.
Yeah, this. I've seen literally nothing to prove, or even strongly suggest, he had any operational role whatsoever. There's plenty of "linked to" and "believed to be involved in", but in no story have I seen a single piece of evidence which points to him organising anything. There's plenty of evidence to suggest he's guilty of treason, but, you know, we try traitors, not assassinate them.
52 + 54 = No sane Democrat wants to spend an election year explaining how a treason case works and/or why treason charges got pled out.
I've seen literally nothing to prove, or even strongly suggest, he had any operational role whatsoever.
Right. And in the wake of our painstaking dismantling of Saddam Hussein's massive stockpile of chemical and biological weapons, I'd like a stronger case than "because the government says so and shut up hippies".
39 -- Not yet, so far as I know. But this doesn't exactly seem like an insurmountable problem. If they ever decided that killing specific Americans with legal impunity was a goal worth pursuing.
you have to demonstrate that they are a member of the enemy force
To whom? When? Yes, in your defense in a war crimes prosecution, you'd have to make a showing. Otherwise, we let the military pursue war, under the direction of the CinC, pursuant to the laws of war.
56 -- Yes, this. I'm not sure he wasn't effectively a chaplain, which means they can't kill him, no matter how effective he is in convincing people that God approves of the war effort.
Carp is a government apologist who doesnt care about civil liberties.
Absent the chaplain thing, which I don't think we'll see evidence one way or the other, this looks to me like a political question, more than a legal question. And on the politics, if the US is getting ready to declare victory and go home, that's not exactly the worst possible outcome.
[T]his looks to me like a political question, more than a legal question.
I am sympathetic to this, to an extent, but I worry that the executive can transform any question into a political one by firing enough guns at it (even discounting the power of the fait accompli in our political culture).
I'm not sure this constitutes any sort of new low for the US government, however.
So there are a bunch of people here who agree that killing guilty-ish people is unfortunate for a government (I believe this, that this killing along with many others are unfortunate). How freely would you voice this opinion in a conversation where politics had already come up?
Basically, I get the feeling from people around me that disapproval is very unpopular.
declare victory Leon Panetta said last week in an interview that Yemen is a serious threat. My preferred explanation is that claiming a threat justifies a big budget, so military-industrial logic will trump facts for the foreseeable future. The Gobi desert and dark side of the moon may have hostile intent, so defense dollars need spent.
I think it's probably true that Aulaqi was a serious threat, being a charismatic preacher. There's a news story today quoting a Yemeni tribal leader to the effect that Aulaqi tried to negotiate safe passage through the leader's territory. If true, that stretches the limits of a chaplain's role.
63.1 -- I don't have this problem.
Yemen is a serious threat, in the sense that it genuinely is a "breeding ground for terrorists" or whatever the current phrase is, in a way that Iraq never was. Yemen would have been a much more logical target in 2003, had that war ever had anything to do with terrorism.
So there are a bunch of people here who agree that killing guilty-ish people is unfortunate for a government (I believe this, that this killing along with many others are unfortunate). How freely would you voice this opinion in a conversation where politics had already come up?
Can you rephrase this? I'm not sure I understand what you're asking.
|| I haven't read Heller II yet, but am reminded that I like Judge Ginsburg even when he's wrong, and that GWB should never have gotten the ability to nominate the likes of Kavanaugh. |>
a news story today quoting a Yemeni tribal leader to the effect that Aulaqi tried to negotiate safe passage through the leader's territory
Maybe I'm misunderstanding your summation of the story, but in a country that is 95% lawless Wild West and crawling with armed militias, wouldn't this be pretty standard procedure?
The legal/logical problem I have generally with the argument that we're at war with Al Qaeda, which makes anyone we decide is an associate of Al Qaeda fair game, is that it completely abandons the civilian/military distinction that is actually rather important in a real war. When we were at war with Germany, that didn't make any German citizen, or any outspoken advocate of German military or ideological victory, a legal target of military force: legal targets were limited to their military, or non-military personnel directly supporting the military. (And then the doctrine of double effect makes killing pretty much anyone arguably okay, if you stretch it far enough, but I'm talking about legal primary targets.)
"Unlawful combatants" in a real war are people who are personally and demonstrably engaging in combat -- not people who are somehow associated at some remove with people who might be doing something bad.
The legal step in the Al Qaeda argument I find completely unpersuasive and repugnant is the jump from "We're at war with this loosely defined organization/ideology" to "Everyone we can plausibly claim is associated with the loosely defined organization is by virtue of that claim engaged in combat." If that didn't work for a civilian member of the Nazi party, it sounds like bullshit for an Al Qaeda member not specifically shown to have participated in specific crimes/acts of terrorism.
Certainly someone from AQAP has to make arrangements with tribal leaders. If it was this guy, he's playing more of an operational role, not merely acting as a preacher.
If it was this guy
That's a good question. Was it?
When we were at war with Germany, that didn't make any German citizen... a legal target of military force
Wasn't the view at the time that it did? Hence things like, you know, bombing every German city to rubble?
Negotiating safe passage doesn't seem on its face to be incompatible with a chaplain role. A link to the story might help me understand what we're discussing.
Further to 68: I realize that it's a lot harder to draw that combatant/non-combatant line for a diffuse, poorly defined organization like Al Qaeda. Which is a large part of why I think terrorism should be dealt with primarily through a law enforcement model.
68.last makes sense, and may very well be right in this specific case. Nonetheless, in a regular war the military makes these kinds of decisions on a regular basis without consulting with a judge and without capturing and trying the people involved. That doesn't necessarily mean they made the right call in this situation, but when you list the possible war crimes the US has committed in the past 10 years, I doubt this makes the top thousand.
72: To the extent that we were attempting to destroy military targets and missing, that's the doctrine of double effect. To the extent we were engaged in indiscriminate terror bombing, that was a war crime. An unpunished war crime, but a war crime.
68 -- It's not that there's no point to your argument, it's just that it's getting swamped by the hyperbole. We're not legally at war with an ideology, and no one contends we are. Nor is AQ exactly "loosely defined." Accept that it's an organization with hierarchy, bylaws, and a formal membership structure. No one is claiming that anyone who is a member of AQ is engaged in combat.
74 -- Was Adm. Yamamoto a combatant?
Nonetheless, in a regular war the military makes these kinds of decisions on a regular basis without consulting with a judge and without capturing and trying the people involved.
If this is a claim based on exigency, I have complete sympathy with it. "Look, there's someone who we have good reason to believe is a combatant, and there's no way to put our evidence in front of any other decisionmaker before he gets away. Can we kill him?" An argument from immediate military necessity I can buy.
But in the case of a planned, targeted assassination, it's bullshit. The fact that you can't practically get a warrant for the arrest of someone in civilian clothes sneaking around in the dark around your military installation -- you have to kill them, apprehend them, or let them go -- doesn't mean that you have no obligations where they're practically possible to comply with.
79: Let me check the uniform he was wearing. Yes.
Accept that it's an organization with hierarchy, bylaws, and a formal membership structure.
No.
No one is claiming that anyone who is a member of AQ is engaged in combat.
I disagree that no one is making that claim.
It seems like the upshot of your position, CC, is that the US military can do whatever it likes, to whomever it likes, unless challenged in a war-crimes trial? Not that I'm saying you believe they'd necessarily win in that trial, but until such point, no evidence, no due process, no nothing is needed? The US military is at war with a non-state actor, and as such, just does whatever?
I'm sympathetic to the argument that some AQ members are in de facto civilian roles while others are in de facto military roles, but isn't it AQ's responsibility to make that distinction clear? The IRS maintained a clear distinction between its military and civilian branches, and killing Gerry Adams would have been a war crime. But if AQ isn't going to maintain a clear distinction, then I don't think it's our responsibility to split hairs over whether someone is in a purely non-military role.
The US military is at war with a non-state actor, and as such, just does whatever?
Whether we approve or not, this is a useful explanation of the current situation.
re: 85
Sure, I know that's the situation. I think it's fucking bullshit, but I know that's the US government's basic legal claim. I'm just not sure whether CC is explicating that p.o.v., or defending it.
re: 84
FWIW, the legal position taken by everyone, including the US (iirc) at the time, was that when the British shot IRA active service members, that was still a crime.
The IRS maintained a clear distinction between its military and civilian branches....
Aren't there a number of books attacking this claim, w/r/t Gerry Adams specifically and the command structure generally?
81 -- Really?
82 -- OK, in a world with an internet "no one" is too broad. I didn't mean "no one;" I meant no one of consequence.
I don't understand why you want to make up an AQ that doesn't have serious and strict internal discipline.
83 -- As a US legal matter, this is about the size of it. I mean, there are some internal controls, and soldiers that violate the laws of war are subject to executive sanction (including criminal prosecution under the UCMJ or in civilian court, depending) but whether to bring a case is an executive decision. But the supervision of the executive's conduct of a war more of less has to come from Congress, and even then, under its specific powers (money, deciding who we're at war with, rules for armed forces, etc).
83: The military and their civilian bosses are responsible under their oaths to not commit war crimes, and the military has a bunch of its own lawyers part of whose responsibility is to check that we're complying with the law. However the amount of formal oversight that the ordinary legal system has over the prosecution of a war is very limited. This is a good reason not to start so many damn wars, but it's not in and of itself wrong.
86.last: I'm not disagreeing as a factual matter, but that sure seems screwy to me. Actual IRA active service members should be fair game as military targets. Of course, if you're at war with the IRA that means that IRA attacks on military targets are legal (even if they have double effects), which may be a practical mistake and treating them as law-breaking ordinary citizens breaking ordinary laws may be a better decision on the point of view of the government.
86.1 -- I think war with AQ was the wrong approach. I think we made a good argument in Gherebi about how the laws of war would treat civilians who fall into the hands of a belligerent force, and we lost.
81: How are you supposed to check the uniform of somebody in an airplane?
re: 87
I think it's commonly believed that at various points Adams was on the Army Council, yeah. Ditto for McGuinness, and others.
I don't know whether the UK was legally at war with the IRA.
For example, if we're going to say that we're at war with AQ, then we have to admit that attacking the pentagon is not in-and-of-itself a war crime. (I'm not expert enough on war crimes to know if the hijackers committed war crimes in the method that they used to attack the pentagon.)
I'm not sure if my thinking is exactly in accord with the Geneva Conventions, but I think the "war" exception ought to be as clear-cut and narrow as possible. Inductees of national forces only. If they could be plausibly be labeled a criminal organization, they must be treated as such.
Reason 1: the "war" exception to civil rights is immoral per se, justifiable only by necessity, and does not need extending.
Reason 2: the slippery slope is obvious, as we're sliding down it at this very moment. What if a Weathermen-style terrorist movement emerged, as in limiting itself to property damage? Would we be at war with them? Property damage is something combatants do too, right? If we allow the government to define war as anything threatening, based on its say-so, the Bill of Rights has lost its practical effect for anyone unpopular.
Reason 3: Practically, law enforcement tactics are much more effective than military tactics for terrorist and other irregular groups.
Reason 4: The Fourth Geneva Convention, as I recall, bans inhuman and degrading treatment for any combatant, no matter how unconventional or illegal their mode of combat. I suspect it also says somewhere that you can't kill them except in a battle situation.
Legally, though, there's just no doubt at all that we are engaged in a war, and that war is against the group that engaged in the 9/11 attacks.
Charley, this isn't obvious to me. If you're interested in outlining how the law treats war with non-state actors, or with people who choose to identify themselves with non-state actors, I'd be interested in reading it.
Under U.S. and interenational law, can Congress, as ajay suggests in 36, declare war on the Weathermen?
93: I was aware that McGuinness was a strange case (and I don't think it would have been a war crime to kill him, if Britain had declared war on the IRA), but Adams seems more analogous (self-banned) to a cabinet member in a state that we're at war at. Surely they're involved in some war related decisions, but the enemy has clearly declared that person to be civilian not military.
96.last is surely wrong. In a war you can bomb whatever army barracks or army transports you want whenever you want to.
88.1: I'm really not getting your point about Yamamoto. He was a military officer of a country at war with the US. The uniformed-member-of-the-military-during-time-of-war definition of a combatant is pretty much the core of the concept. You're making some kind of point about him, which might be a good one if I understood it, but it's whizzing right by me.
88.2: From the 2006 Military Commissions Act:
The term 'unlawful enemy combatant' means --
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces)
I read that as saying that a person who is part of al-Qaida or 'associated forces' is by virtue of that fact an unlawful enemy combatant. As of passage of the 2006 MCA, I think Congress was making the claim you say no one is making.
re: 98
Just to clarify, I don't think the British state had any right to kill either.
101: Surely barring exigent circumstances relating to arrest, right?
88
I don't understand why you want to make up an AQ that doesn't have serious and strict internal discipline.
43 looks relevant. Apparently while an AQ that is a group with "serious and strict internal discipline" may exist, the term AQ gets used to describe more than just things and people inside that group.
For example, if we're going to say that we're at war with AQ, then we have to admit that attacking the pentagon is not in-and-of-itself a war crime.
Similarly, even if the Fort Hood shooter was in league with Al Qaeda, it couldn't be considered terrorism Fort Hood itself is a legitimate military target.
100.2 -- I don't read that section of the MCA the same way you do. And the MCA isn't legally relevant to the question who can be shot with a drone; the definition of uec is only relevant to describe the jurisdiction of the commissions.
100.1 -- The claim about Aulaqi is that he was part of the leadership of a belligerent force. A force with which we are legally at war. I'm fine with drawing the distinction with Adm. Yamamoto based on conduct -- is the claim in my first sentence factually correct. If it is, though, are you saying that what clothing they wear makes a material difference in their legal status? Wearing a uniform privileges a person, yes. But that isn't what makes them a legal target in a war.
I don't understand why you want to make up an AQ that doesn't have serious and strict internal discipline.
I don't know why you want to make up one that does.
Of course, if you're at war with the IRA that means that IRA attacks on military targets are legal
One of the reasons, I suspect, that the UK didn't formally declare war on the IRA was precisely to prevent/discourage that sort of legitimisation. See also the whole Bobby Sands affair.
re: 102
You mean, say, if they were trying to arrest one of them and they opened fire with an Armalite? Yeah.
The Death on the Rock/Flavius case was a big deal here:
http://en.wikipedia.org/wiki/Death_on_the_Rock
http://en.wikipedia.org/wiki/Operation_Flavius
You'll note that the European Court of Human Rights (narrowly) disagreed with the UK inquest which found that the killings were justified.
I think it's fair to say that both the British government and the European Court of Human rights took a different view from the US position.
103 -- Right, but the claim is that Aulaqi was a member of the smaller organized group. Is the claim true? From public information, it looks like it might be. Hence, arguing about what the popular conception of AQ might be -- just like saying we're at war with a noun -- gets one off the track.
Wearing a uniform privileges a person, yes. But that isn't what makes them a legal target in a war.
I hadn't thought of it that way, but obviously right as far as I know from what watching WWII movies. Someone who should be in a uniform being caught out of that uniform is still a legal target. Perhaps even more so, depending.
97 -- PF, take a look at the link in 91.
The claim about Aulaqi is that he was part of the leadership of a belligerent force. A force with which we are legally at war.
Members of the civilian leadership of Japan who would not by virtue of that fact alone have been legitimate military targets despite being part of the leadership of a country with which we were at war. "Putting on a uniform", as a metaphor for legally becoming a member of the military, automatically makes you a legitimate military target. If you're a civilian, you have to be engaging in or directly supporting combat to be a legitimate military target.
I won't argue over whether Awlaki has been sufficiently demonstrated to have been an Al Qaeda leader. Without some demonstration that he had a direct role in terrorism, I don't see that that makes him a legitimate military target more than any civilian in the Japanese government during WW II.
The IRA maintained a clear distinction between its military and civilian branches, and killing Gerry Adams would have been a war crime.
No, it would have been a normal crime; there wasn't a state of war with the IRA. Hence all the prisoners complaining that they weren't being treated as POWs but as criminals.
There's an extra 'who' in that first sentence; I should learn not to rewrite in comment boxes.
106.2 -- If the UK was not legally at war, then obviously the legal framework would be completely different.
97 -- I don't think there's any constitutional constraint preventing Congress from creating a legal state of war with what it considers a domestic insurrection, and I don't think the courts we have today would review the question.
Our government has awesome, awful powers. These powers can never be allowed to fall into the wrong hands.
These powers can never be allowed to fall into the wrong hands.
Something about the grammatical structure of this sentence makes me want to cry.
I suppose it's the implicit future tense. Yes, that would be a terrible thing if it happened. We must all be vigilant.
112: Sorry, right, the British government (probably correctly) decided to treat the IRA like a criminal organization and not like a state that they were at war with. But I don't think it would have been morally wrong for them to declare war on the IRA, and I don't think the boundary between criminal organization and enemy state is a clear bright line. There are lots of situations where it's a practical decision about which box to put things in, and either decision is defensible morally and legally.
Hamas is a good example. I think it's more accurate to say that Israel is at war with the state-like entity Hamas, then that they are engaged in a law enforcement endeavor against a criminal organization. (Of course, Israel has certainly assassinated civilian Hamas leaders, which seems pretty clearly a war crime.)
If you're a civilian, you have to be engaging in or directly supporting combat to be a legitimate military target.
As I understand it, and I may not, a civilian directly engaging in or supporting combat doesn't even get the protections of being a legitimate miltary target.
111 -- We're approaching some comity, I think. The claim, actually, is that he was involved in operational planning. I don't know if it is true. It might be.
The other problem remains, however: there's no forum where these kinds of judgments get adjudicated before the fact. Other, I suppose, than the White House where the Executive listens to the various factual arguments, and decides whether he thinks the guy meets the test that his lawyer has described.
118: There are no protections of being a legitimate military target. Target means target -- the military's allowed to kill you without process.
118, 120: if you mean protections like POW status then, yes, correct, outside certain exceptions like the franc-tireur rule.
The claim, actually, is that he was involved in operational planning.
What I'm bitching about, and this may have been unclear, is that I haven't seen this claim made in any concrete way -- not that he planned act of terrorism X that occurred on date Y, or that he was part of the planning process for an act of terrorism that was prevented somehow. Concrete claims I've seen about what made him a target are all about the charismatic speeches. As I said in 5, I could very easily have missed something, but I'd really like to see at the absolute minimum some specific claims in in this regard. (At which point I'd still be unhappy, but for different reasons.)
Our government has awesome, awful powers. These powers can never be allowed to fall into the wrong hands.
Is this an argument for Obama taking whatever action necessary to prevent a Republican from taking office?
Is it allowed to be frustrated with all the different transliteration schemes that are apparently acceptable to all?
(At which point I'd still be unhappy, but for different reasons.)
There's probably easier ways to get new reasons for being unhappy.
118, 120, 121 -- Yeah, 120 was unnecessarily curt, I'm sure POW treatment is what Moby was thinking of. But it's not relevant for what triggers the military's ability to treat someone in civilian clothes as a target at all.
110 and 114: Thanks, Charley. That's pretty clear.
122 -- There's a specific claim that he played a role in the Xmas bombing. We'll see, maybe, as jury selection began today in the bomber's trial.
I don't understand why you keep talking about terrorism, as if that was legally relevant. We're at war with a group. A person who is part of the group can be a combatant or not. Not all combat is terrorism. AQAP is fighting with Ali Mohsen's soldiers in Abyan province. If Aulaqi played an operational role in this fighting, wouldn't that be legally sufficient to make him Yamamoto w/out a uniform?
Al Qaeda does not exist. If it did exist, there would be some kind of proof. At this point, the best the US has been able to come up with is some grainy video of an ex-CIA asset gloating about some crimes that other people committed.
I guess I can't muster a huge amount of outrage about this myself, given that it is and has always been pretty much standard operating procedure, and just as brazen. The MOVE bombing, Wounded Knee/Oglalla, Judi Bari & Darryl Cherney, Fred Hampton -- there's a long list of people who've been martyred by the US without a trial or anything. And of course, overseas, it's even more common.
Also, I know everyone here knows this, but Obama did say he was going to do this thing if he was elected. Made a pretty big point of it, in fact. Of course, he also said he was going to march in picket lines, so I suppose it's excusable to some extent not to have believed him about the prosecution of the War on Islam.
129: AQAP is fighting with Ali Mohsen's soldiers in Abyan province.
Is there any proof of this? I've no doubt that there is fighting in Abyan province, but saying it's definitely the work of a discrete group called "AQAP" is like saying that any asshole with a Stars & Bars T-shirt is officially acting on behalf of the Confederate States of America & President Jefferson Davis.
Al Qaeda does not exist. If it did exist, there would be some kind of proof.
By that standard, I don't think Delaware existed until 1958.
Maybe Saleh thinks it's real enough that, as part of his own campaign against Mohsen, he arranges the quick death of Aulaqi. To bring the US around to his side.
If the asshole and Pres. Davis both say it's so, would you still not believe it?
If Aulaqi played an operational role in this fighting, wouldn't that be legally sufficient to make him Yamamoto w/out a uniform?
I actually don't have a sense of how this works out, given that the fighting isn't something that we're a party to. And I'm not exactly sure what you mean by 'played an operational role' -- do you mean 'directly engaged in or supported combat in a manner that would make a civilian a legitimate military target in a conventional war'?
(The Xmas bomber claims that Aulaqi is still alive, so there's that.)
Everything I've seen about Awlaki and the underwear bomber uses words like inspired by and a follower of. Is there a claim that Awlaki was involved in planning the act?
Al Qaeda does not exist. If it did exist, there would be some kind of proof.
What kind of proof would do?
135 -- Yes, that's the claim. Evidence is not being presented, and there is no forum in which it can be compelled. Other than Congress.
Hamas is a good example. I think it's more accurate to say that Israel is at war with the state-like entity Hamas, then that they are engaged in a law enforcement endeavor against a criminal organization. (Of course, Israel has certainly assassinated civilian Hamas leaders, which seems pretty clearly a war crime.)
I think it's a pretty bad example. Whatever else it is, the Israel/Hamas conflict is fundamentally a territorial conflict, something it has in common with conventional wars as we used to know them. It is characterised (now) by hostilities between the governments of two separate territories (three if you include Hamas/Fatah conflict, though obviously Fatah has less control over the West Bank than Hamas does over Gaza). Hamas may not technically be a state actor, but it is acting like one in this context. The war may be being waged in terroristic manner on both sides, but it's a really weak analogy to the US/Al Qaeda conflict.
137 -- Prosecutors say Mr Abdulmutallab was directed by Awlaki - who was killed by missiles last week in Yemen - to carry out the attack on Northwest Airlines Flight 253 on Christmas Day in 2009.
http://www.bbc.co.uk/news/world-us-canada-15171939
139, 141: At which point a part of what's bothering me is that that kind of direct link to anything that could be described as combat was not treated in announcements of the assassination as necessary to justify it. The publicity around the assassination has made the assumption that "Al Qaeda leader" is a sufficient justification for assassination.
A further thing that's bothering me is that it is not my understanding that the law of war allows the killing of suspected unlawful combatants without process where military exigency does not require it; it's not the case that, e.g., it's permissible under the law of war that suspected spies and saboteurs can be shot out of hand where legal process is practical. They're not entitled to treatment as POWs, but in a conventional war they're entitled to some legal process.
123:Is this an argument for Obama taking whatever action necessary to prevent a Republican from taking office?
Yes.
This thread is like like like...the Senate going through the motions of properly authorizing Octavian to go after Antony.
You think worryin' this bone since 2002 is going to either protect you or absolve you?
There is no fucking Law.
I actually think is kind of bullshit that civilian leaders aren't considered military targets. How very convenient for the civilian leaders that came up with that rule.
Maybe if they were considered targets, they would be less likely to lead their countries into war to begin with.
142 -- I think you have to draw a distinction between soldiers/spies/whatever that are in custody or hors de combat, and those who are on the loose. Can you shoot a spy who is running away? Even if you are sure that he didn't learn anything of military value? I'd be surprised if you can't. I bet you can shoot a spy who is sneaking up, but still 100 yds away.
I think there's a real line-drawing problem for 'what does military exigency require'. But the fact that that's a real problem can't mean 'we have a hard time drawing the line, so everything is permitted.'
144 -- I don't think civilian leaders are exempt. But I've never actually looked at this question.
146 -- Not everything is permitted, but the law of war is pretty generous to the belligerents.
I don't now whether Aulaqi was a legally legitimate target. That he was a target he knew perfectly well, and he took no steps to contest the legality (as opposed to his father, who filed suit, only to have it rejected because, inter alia, the son, not the father had standing) under the law of war despite having access to a printing press.
but the law of war is pretty generous to the belligerents.
I think you mean the winners.
There has to be some poetry out there about decrepit priestesses prostrating themselves before irrelevant and forgotten idols as their city burns around them.
l'esprit des lois has flown, dudes.
What are you doing?
138: What kind of proof would do?
Whaddya got?
144: It may once have been, but by the Cold War it clearly wasn't. Everyone assumed that in a nuclear war, the Soviet Union would target the White House and, though I've never seen a US nuclear target list, I'd be amazed if the Kremlin wasn't on it.
I remember one nuclear exercise where the gossip was that the exercise President had been "killed" on the White House lawn because his handlers hadn't gotten him into the helicopter before the nuke hit the White House. (That was the exercise that I spent the last couple of days in The Rock. Late the last night, we were told the exercise was over and the players had all shaken hands. Someone asked what had become of us: "Our bodies are buried under a pile of radioactive rubble," said the Colonel.)
151: There's a de facto/de jure issue there. It's hard to picture a use of nuclear weapons against a city that wouldn't be a war crime as inflicting civilian casualties disproportionate to military benefit. Doesn't mean that wasn't the plan, but it would have been a war crime.
145: Traditionally, spies have been executed, not treated to POW status.
OT: Today is National Taco Day? We have a National Taco Day? First Rosh Hashanah and now this. Why doesn't anybody tell me anything?
153.2: It is also National Vodka Day. So, you know, you have your menu planned right there.
145: Traditionally, spies have been executed, not treated to POW status.
Traditionally, if captured, they were tried and then punished. Not being eligible for POW status makes you a criminal, not an outlaw without any legal status.
The sketchy line is what can you do to a spy/saboteur/unlawful combatant who you haven't captured. Shoot them down like a dog in the street, whether or not they're trying to surrender? Or is the line somewhere short of that?
152: I've always wondered how, MAD aside, the relevant powers in states like Pakistan might take that sort of argument into account while lovingly caressing their deterrent against foreign (i.e., Indian) invasion. Bombing an enemy city after an invasion smacks a little of reprisal, on top of the issue of disproportionate response. I suppose such arguments aren't often addressed in those states, but still.
And on the basis of what knowledge that they are an unlawful combatant?
Shoot them down like a dog in the street, whether or not they're trying to surrender?
Always, throughout history, this has been the bottom line in practice. If your intelligence says they're dangerous enough and you can't capture them, you kill them.
The question is, whether you make a virtue of that or whether you publicly regard it as a failure and a shortcoming by your side. Up until WWII governments had the grace to be secretive and ashamed about their dirty wars, it didn't mean they didn't fight them. The moral decline in the last half century has been that they now regard this kind of thing as virtuous in its own right.
153 -- I'm stamping my feet and yelling in your direction. LB is exactly right in 155, and the hordes of people who claim otherwise -- and the goddamn internet is full of them -- are wrong.
Shoot them down like a dog in the street, whether or not they're trying to surrender?
I'm not going to say that chris is wrong in 158, but there is a line here.
I'm not going to say that chris is wrong in 158, but there is a line here.
158 says if you can't capture, and if you think they're dangerous enough, you kill, which is reasonable. But there's a difficult question about 'can't' there -- what counts as 'can't' and what counts as 'didn't really make much of an effort, did you', is hard, and there's no real authority to adjudicate wrongful behavior on that axis.
Right. I read it too fast. Because I think we're cutting the corner quite a bit, especially given that we don't really want to take on any of the downsides of having this be a war. Like letting the prisoners go when it's over, or saying that a uniformed AQ guy can blow up pretty much any car in the Pentagon parking lot with legal impunity.
28 -- The Wick uses a kunya: http://en.wikipedia.org/wiki/Abu_Ali_al-Harithi
especially given that we don't really want to take on any of the downsides of having this be a war.
This. Ten thousand times this.
what counts as 'can't' and what counts as 'didn't really make much of an effort, did you', is hard, and there's no real authority to adjudicate wrongful behavior on that axis.
This is a problem which becomes increasingly acute as state authorities increasingly cease to regard black ops as something they feel they have to do rather than something they should be proud of. It is hard, because there's a huge subjective element and because you're venturing into ethics as well as politics. My personal preference, fwiw which is actual nothing, is to say that we have to push back against the acceptability of this sort of operation while at the same time maintaining a realistic attitude to judgements made on the ground. This is hard and involves having more than one idea in your head at the same time.
They never gave George Smiley a KBE and quite right too, he was a stone cold killer, but they may well have retired him as a nominal Major General or something to help his pension along, which was probably a good decision as well (sorry, saw TTSS the other day).
154: Better than the traditional Yom Kippur menu.
159: "Trial," w/r/t spies, has often been pretty thin beer.
165: There's a huge difference between some process and no process.
There's also a factor, which I think is wrongfully ignored by many people writing on these issues, that a lot of precedent on the subject is driven by exigencies that aren't generally applicable in the modern world. Shooting a spy after a ten-minute battlefield hearing where there wasn't any practical way to keep him in custody for a more formal trial is one thing if it's necessary. But that shouldn't be taken to mean that there's no obligation to give more process than that where it's practical, and under modern conditions, it's going to be practical for anyone in custody at all.
you're not exactly privy to the intelligence data ,are you LizzySnitch (a point lib-rall krimefighters forget daily). Maybe like try to seduce Hillary for the details
160: there's no real authority to adjudicate wrongful behavior on that axis
Except the ICC, which isn't really a "real" authority, I guess, since the US doesn't allow it to be.
Because it's totally true, that ICC gets no support from the US.
I'd assumed natilo meant the International Conference on Creationism.
Carp is totally right on all of this.
We'd like to point out that "alameida" is, strictly speaking, a fictional character or persona, and, in any case, a well-known unreliable narrator. Also, she's prone to risk-seeking behaviors.
I think we kind of know that already, alameida.
I worked on one of the last cases decided by the Interstate Commerce Commission.
177: yeah, I assumed so too, being charitable (?), but he thought it was news to me.
oh, you mean 176. well, leave it to the government to state the obvious.
No, I meant 175. We're on the same page. Roughly.
only very roughly, I think. though I fully endorse your neither selling the lake house nor evicting the cousin policy.
Very roughly. Thanks on the lake house thing, though. We'll see on that.
one is obliged both to hold onto treasured family waterfront property and stand up for cousins in these fallen times.