The context that these discussions often lack is that there are situations where it is considered acceptable for law enforcement to kill a suspect. An armed hostage taker being taken out by a sniper, for example. What is the rule that says that could be OK, but killing Anwar Awl Alaki is not?
Superficially, the rule seems like it would be based on whether capturing / arresting the person is not feasible, but doing nothing has a high probability of resulting in that person being involved in a violent crime (killing of hostages, participating in a terrorist act). Unfortunately, deciding if that is true for a given situation is of course a judgment call. But to simplify it down to "the government shouldn't kill people without a trial" overlooks some things that need to be considered. Could he have been feasibly arrested? What would have been the consequences of doing nothing?
We're not discussing the actual rules yet; the ACLU is asking to see the memo where the argument was supposedly written.
If and when the memo is produced, we can discuss its content; until it is, we should simply ask for it.
The whole concept of "secret legal memos" is the most preposterous thing I can think of. Secret orders may be a necessary evil; but secret legal justifications? What could that even mean??
> Secret orders may be a necessary evil; but secret legal justifications? What could that even mean??
The argument is that by disclosing the legal justification you give information to the targets. For example, if the argument for allowing a drone killing required an explicit threat to commit a violent crime by the target, targets could know what to keep their mouths shut about in order to avoid qualifying. It's a weak argument. But hey, maybe they can keep that argument secret too and then no one will be able to challenge it.
That argument is beyond weak. It sounds to me like it's saying "don't tell someone what the law is so that they'll be more likely to break that law, allowing you to kill them."
If there's a law that's punishable by death, it better be publicly known.
That argument sounds rather dark, as the same thing which illuminates the criminals -- guess what -- also illuminates the people. And journalists, lawyers, and associations that digest information for the people.
So now the overwhelming majority of the world goes dark on the law because a minority of uniquely dangerous criminals are lawyer-like Westboro Baptists with bombs.
If terrorists wish to confine their behaviors to the technicalities of western law because they would rather get arrested than shot, that is actually a highly desirable outcome. We should seek to capture all criminals alive and decently, and gather what data they have to attack other networked crime. Seriously, law-conscious Westboro Baptist terrorists would be a positive development.
This is no different from a criminal learning about the circumstances in which a cop might shoot them, and thus opting to drop their gun in certain situations. The criminal is being more legally conscious as part of their strategy.
While wrongdoers who play legal strategy can be a frustrating nuisance, but the alternative is secret legal memos, which I find more frightening.
Perhaps the legal justification needs to be abstracted from specific cases. Only if a specific case fulfills the justification can that justification be used in secret prior to full execution of that move which then requires full disclosure in post mortem of the event. A non-indefinite yet reasonable time limit should be another requirement that forces either rescinding the justification and/or requiring full disclosure.
This way a justification can be made without details being made public that would alert a sensitive target. It is also necessary to make sure that a potential authorized kill could not be held open indefinitely and the details released publicly in a timely manner.
There's an very important distinction between killing someone to prevent imminent bodily harm and putting someone on a kill list and sending the drone out to get them. It's the distinctly non-imminent premeditation that makes the difference.
There's an equally important one between executing someone in your custody and assassinating someone high up the chain of command in a paramilitary force in hostile territory.
His citizenship is neither here not there for me. If it's acceptable to target foreign al-Qaeda leaders in overseas theaters (which I believe it is, in many cases), then it's equally acceptable to do the same to an American who chooses to take up such a position.
Yes, that's a great point. But the nuances of that distinction are not covered well in the argument of this article. Which was kinda my point, that boiling this down to "the government shouldn't kill people without a trial" misses a lot of nuances that need to be taken into account.
In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
It's frustrating that, after reading all the other comments here and at the NY Times website, it seems like at least half of the people disagreeing with this article are doing so because they didn't read that passage.
I read it, and read that passage. And I don't believe those two sentences adequately cover the issue.
Perhaps this discussion is tainted by the submission title: "Show us the legal case for executing a United States citizen without a trial." The hostage taker hypothetical is an example that goes against that. That person would be a citizen, not in a battlefield, guaranteed the right to a trial, executed by the government, without a trial. The article does not do a good job of distinguishing that example from Awl Alaki. Meaning I think the central argument isn't all that good, and needs to be more specific / nuanced.
The quoted passage is inaccurate. Citizens are guaranteed due process, on or off the battlefield. In situations involving the deprivation of life, that almost always means a trial. But a trial is not an inviolate requirement. What level of process "is due" is a context-sensitive question.
The loophole in the 5th amendment to the U.S. Constitution is worse than that. It is wide enough to fly an entire fleet of drones through, in formation.
Firstly, there is no mention of citizenship. Secondly, the loophole covers any land force, sea force, or militia, and the service can be in any time of war (not necessarily currently engaged in battle) or any time of public danger. There is no mention of loyalty to the U.S. as enemy or ally.
Obviously, the intent of the loophole was to address the question "How can we possibly fight a war if 23 people have to hear evidence before every musket ball flies?" But thanks to poor bounds checking, the protection against arbitrary extrajudicial executions is severely weakened.
By a malicious reading of the amendment, I could argue that, by the tenets of Islam, every Muslim is a member of the militia, and that every member is called upon to wage war upon the unfaithful, heretics, and apostates. That is, they would all be "Militia, when in actual service in time of War or public danger." They don't even need to be at war against the U.S. The loophole does not specify.
It would seem that the source code for U.S. Government should be updated, and a patch released.
Unless you can find something which revokes a statement in the Treaty of Tripoli - and given 200+ years it might well have changed - you can't apply your malicious reading because the US has said it does not have hatred or ill-will regarding the tenets of Islam.
Specifically, the US Senate unanimously wrote that the US "has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen" (that being the older term for Muslims).
That nitpick aside, your statement is still true - the loophole would be to declare that, say, the tenants of the Wahhabi branch, or the Ahmadiyya branch, of Islam are not part of the true Muslim faith as meant in the Treaty of Tripoli.
There is no requirement that the U.S. be a party to the war, or that the targeted individual be enemy or ally. All that is required is that they be a potential combatant in any war or emergency.
The U.S. could target a South Korean soldier at a defense conference in the U.S. South Korea is still at war with North Korea, so that's a soldier, on the job, during a war. All the requirements are met. It does not matter one little bit whether the soldier is actually a danger to the U.S. or anyone associated with the U.S. It might cause a diplomatic ruckus, but the U.S. is allowed to do it by the 5th amendment.
I gave no such example. The person targeted under the loophole does not have to be an enemy.
The requirement is that they be in military or militia service during a war or public crisis. Any war. Any crisis. If you are shooting Martian invaders with a slingshot, you fall into the loophole. If you are an Indonesian soldier delivering drinking water to tsunami victims in Indonesia, you fall into the loophole. Get it?
I understand your distinction, and I stand corrected in my use of the term "enemy" when it doesn't apply, but my point still stands. There is a minor sliver of an exception to your loophole, because the US has declared that some things are not of themselves causes for "enmity", one of which is adherence to the Muslim faith.
If you say that being in the militia is a requirement of Islam (and a quick search of a Koran does not find that to be true), then it was equally true when the US signed that statement; and I have no doubt that some Muslim somewhere was involved in a public crisis even at the time it was being signed in the Senate.
But change one single iota of your premise away from specific treaty terms, or clarify that the US has the ability to declare someone to not actually be a Muslim, then you're golden.
You also need to be careful to not trounce over other treaties, like the UN Charter. That's not hard, if the last 50 years of US military interventions is any indication, but it's not so easy as only using the language of the loophole.
You're arguing about this as though the people exploiting loopholes in the law to kill people by executive order without so much as a single judicial hearing are going to honor treaties as well. Here's a hint for you. Research all the treaties the U.S. made with the native Indian tribes.
You are completely missing the point. This doesn't have anything to do with Muslims or Islam. It has everything to do with some psychos in the U.S. government ruining the rule of law for everybody in the entire world, because it has some tiny benefit just for them in the short term.
The 5th amendment basically says that the normal rules do not apply in a war or public safety threat. Therefore, if you, as an agent of the government, wish to operate outside the rules, you just create a war or public safety threat. That's what we call a perverse incentive.
Yeah, but the minimum 34 maintainers (2/3s of the states) have been arguing about the colour of the bike shed since the time of mainstream horse drawn carriages. Little known fact: the most recent pull request accepted into the Repo was submitted in Sept 1789.
"Battlefield" is a rather vague concept nowdays. What is the battlefield for a terrorist? Is a terrorist driving to deliver a bomb on a battlefield? What about one dialing a cellphone to explode the bomb he placed in a restaurant? What about one organizing this and recruiting people to commit such acts - is he on the battlefield or not? What if you can only locate this terrorist while he's driving to a meeting with his accomplices, but once he's done the only way you see him is by the next explosion on a crowded market? Is such person on a battlefield or not, and if so, when exactly he is on and off the battlefield?
Can you target an enemy general who spent last 30 years never holding a weapon in combat but planning and executing hundreds of military operations?
I could be wrong but I'd tend to believe it is because they are a clear threat and not because one has poor choice in friends or makes suspicious trips to unusual destinations.
"The National Security Agency is using complex analysis of electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes – an unreliable tactic that results in the deaths of innocent or unidentified people."
Its the same issue as the 'no-fly' list, you don't know if you are on it, so you can't provide a defense for yourself. There is no way to challenge you name on the list (short of years of trials). The recent case of the woman proved that they can mess these things up and get them wrong, so imagine them getting it wrong due to a similar name or misunderstanding and you end up on a kill list. So the worry is that a kill list becomes like a no fly list, you don't know you're on it until you hear a drone's missile coming at you.
> I could be wrong but I'd tend to believe it is because they are a clear threat and not because one has poor choice in friends or makes suspicious trips to unusual destinations.
I'd love to be able to trust the governments ability to decide who and what is a 'clear threat', it'd make a lot of things a lot easier. But unfortunately history - including fairly recent US history - is chuck full of evidence to the contrary.
Not to mention the difference between "clear threat to the country" and "clear threat to the government".
To the extent that there is a difference, I'm much more concerned about the former, but worry that the government may (naturally) be more concerned about the latter.
A recent Radiolab episode, "60 Words", investigates exactly this question, among other things. There is a kill list, and decisions about who is or is not on that list are made by non-elected officials. Worse still, the Congressional oversight committee whose job is ostensibly to oversee this sort of thing apparently did not even know about the existence of the list until 2013, at which point the list had probably existed for around a dozen years.
One question: why do we have a judicial system and public laws and all that at all? Could the same kind of people that can be relied upon to only put people on those kill lists that are a clear threat not also take care of determining all other punishments and stuff? I fail to see what all of that complexity is needed for in other cases when it's apparently unnecessary for putting people on kill lists!?
Well, in the case we're discussing, saying mean things about America and Obama on YouTube was the guys major claim to fame. There may have been credible intelligence that he was going to start putting al-Qaeda associated .gifs on Tumblr but of course something that sensitive is still Top Secret.
This is important: I don't even think that the administration ever claimed that that Al-Awlaki has had any known direct connection to a terrorist attack. He was targeted because he publicly advocated and supported them. His speech was enough for a death sentence for him and his 16 year old son, two Americans.
And the government doesn't feel like it's obligated to make a public case for what they've done.
How would knowing that the rule is "We kill those who are a clear threat to others" help the enemy?
I am pretty sure that they are already operating under the assumption that, because they want to kill others, America wants to kill them. If that is indeed our legal justification for killing them, publicizing it would not modify their behaviour in any way.
This isn't about getting the list of people targeted for killing. This is about getting the legal justification for the killings at all. If the justification is as you suspect it is, then there is no value in hiding it. That they are fiercely protecting the justification itself strongly suggests that you are wrong.
I am pretty sure everyone is aware of that particular rule.
But the devil is in the details. How does the US define 'clear threat', exactly, I think would be useful for an enemy to know and possibly exploitable.
And I don't think the US is hiding the overall justification which is "These are people who wish to use violence to act against the United States and its citizens to push their own political agenda. In short; terrorists."
I mean, these are not people who are running for Mayor in their particular part of the world and we don't like their policy decisions. They are doing things like running training camps where they teach others how to make IEDs.
> "But the devil is in the details. How does the US define 'clear threat', exactly, I think would be useful for an enemy to know and possibly exploitable."
Rest assured that anyone who could be considered a terrorist knows that, if they surface on the US's radar, they will be targeted. They take it for granted that they are targeted, because that is the safe assumption to make.
> "And I don't think the US is hiding the overall justification which is..."
I am not interested in the "PR justification", which is indeed "Turrusts!" I am interested in the legal justification. The only thing that they want us to know of that is that it is secret.
If it were nothing out of the ordinary, it would not be so secret.
(Also, normally I try to avoid doing this, but since you are being so persistent in using strong wording in your comments, I feel that I don't have any choice: These are not people running training camps or making IEDs; these are people accused of doing those things. The difference is important, because it is the reason we are having this discussion. It is particularly important because it is suspected that their legal justification extends beyond people who have actually allegedly done anything, and in fact also covers "people who have communicated with those who have allegedly done things" or "any 'military-aged' male in the family of anyone who has allegedly done things")
The legal justification is that we are at war and these people have been deemed combatants in that war.
If these people are not terrorists, what would the US have to gain by killing them?
I am all for oversight and checks and balances. We need to be sure that we are killing actual threats. But I also understand that, as a practical consideration, it might be counterproductive to make the oversight public.
We don't have the luxury of doing full investigations and putting people on trial. It sounds nice, but it is impossible.
For the record: I think it is unfair that you charge me with "Using strong language" and in the same breath deride my position as merely parroting PR "Turrist" propaganda. Cheap shot.
If all those jews were not terrorists, what did Germany have to gain by killing them?
Not that the question is bad, it's just that it's not rhetorical at all, you might want to try to actually answer it. And while you are at it, you might also want to read up on how most of the things that were done to jews (and some other minorities) in the third reich were also legal, at least according to german law at the time.
(edit: and mind you, they also had ways to justify those laws, it's not like they just made the "be evil law", of course it was all about protecting the home country or race or whatever, if you wait for an abuser of power to declare themselves an abuser, you'll generally wait until after all the bad stuff has happened ...)
The legal justification is that we are at war and these people have been deemed combatants in that war.
Who exactly are we at "war" with? On what Constitutional basis was this "war" declared? Under what conditions will hostilities cease? On the enemy's side, who has the authority to sue for peace or sign surrender documents? What laws of war under the UN, Geneva Convention, and/or various treaties apply to this one?
You don't get to do anything you want, and kill anyone you want, just by declaring a "war" on an abstract noun.
> Please show me where the U.S. has officially declared war on these countries it continues to blow up civilians in e.g. Yemen.
The US declared an open-ended war against those people and organizations that the President determines were involved in the 9/11 attacks, and al-Qaeda is one of those organizations. While one might argue (as many have) that the an open-ended declaration of war was a bad idea, or (as others have) that "al-Qaeda", given its nature, is more of an ideological alignment than an actual organization, the power to declare war has never been Constitutionally limited to declarations with nation-states as the target of the war declared.
> There was no declaration of war, there was an authorization for the use of military force. Two very different things.
No, they aren't different Constitutionally at all. The AUMF is an exercise of the Constitutional power to declare war, which does not require any particular language to be used in exercising it, just as the Constitutional power to levy a tax depends only on whether the effect is a tax, not whether the Congressional action imposing the liability calls it a tax.
(It's possible that statutory provisions passed by Congress under its other powers may be conditioned on the specific language in a declaration, such that there may be different effects of something like the 9/11 or Iraq AUMF and something that explicitly uses language like "declares war", but that's a distinction caused by the exercise of other Congressional powers, not a Constitutional distinction that makes the former something other than an declaration of war from a Constitutional perspective.)
How exactly do you know that the AUMF-2001 invoked Congress' power to declare war rather than Congress' power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."?
> How exactly do you know that the AUMF-2001 invoked Congress' power to declare war
Because its the only Constitutional power of Congress which could support it.
> rather than Congress' power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."?
The necessary and proper clause isn't an independent alternative to other Constitutional powers, there still has to be a base Constitutional power to which the function is necessary and proper.
The base power needn't be a Congressional power given the section I highlighted. It could be an Article II power, such as the CinC power.
You've also overlooked the possibility that the AUMF is simply unconstitutional.
In any event, to end this sub thread, at least for my part, whether we are at war or not still doesn't answer the question because declaring war is not a carte blanche to ignore the rest of the constitution (see Hamdi v Rumsfeld). It in no way comports with war traditionally understood to assassinate personel vaguely associated with the enemy involved in the production of propaganda thousands of miles from any active battlefield. Nor is such a killing 'necessary and appropriate' in the words of the AUMF.
> The base power needn't be a Congressional power given the section I highlighted.
That doesn't change the answer. There's no other Constitutional power to which there is even a colorable argument that the AUMF is "necessary and proper" such that it would be supported independently of Congress power to declare war.
> It could be an Article II power, such as the CinC power.
It's doubtful that any such power exists -- the designation of the President as Commander-in-Chief of the military in Article II is a limitation on Congress' Article I power to regulate the military (specifically, it prevents it from dividing the roles that the founders saw as having an executive character by creating a separate C-in-C of the military, which its Article I powers would otherwise permit). But its not a power of government -- the designation of the President as CinC doesn't give the government any power that doesn't come from some other provision of the Constitution, it simply limits the manner in which other Constitutional powers may be exercised (it distributes some powers to the President to the extent that they already exist within the federal government, but for them to exist within the federal government, they must be grounded elsewhere in the Constitution.)
> In any event, to end this sub thread, at least for my part, whether we are at war or not still doesn't answer the question because declaring war is not a carte blanche to ignore the rest of the constitution
The answer was offered to the question of when did we declare war on the targets of these actions, and was not intended to say anything more about the Constitutionality -- and, even more so, appropriateness even if Constitutional -- of the actions, which is, I think, a much harder question that can't be answered without a thorough application of principles to the changing factual circumstances of technological means and realities of modern warfare.
You're delusional. There is plenty of evidence even operators of drones don't always have evidence that the people they're killing are "terrorists", they just "feel" it.
Without disclosing the rules, it opens us to moral hazard. There is no incentive to feel accountable, and as we've learned lately, the government does not do well without accountability.
Please tell me the US government had the foresight to avoid choosing---as the name of a core algorithm employed by its covert services---a name shared by the fictional criminal organization for world domination in the Marvel Comics universe, which is itself opposed by that fiction's analog to America's covert services.
Someone in the chain of command is either deeply ignorant of Marvel Comics (completely understandable) or deeply, deeply cynical about the state of the world (completely concerning).
If the name was chosen deliberately, and not randomly by a computer, then it was probably chosen with the mythical beast in mind, not the comics. Hydras were snakes with many heads, and the problem with decentralized terrorist organizations has often been compared to the problem of killing a hydra; every time you cut off a head there seems to be another.
I'm not sure if there is an algorithm named Hydra; I guess GP is misremembering "Captain America: The Winter Soldier" a little bit (the right names would be Project Insight and/or Zola's Algorithm).
You are correct, in Marvel universe Hydra is the crypto-nazi org, not the algorithm. The algorithm was developed by a nazi scientist Zola, and Project Insight is the tool of its execution, namely flying carriers with tons of guns (it's pretty hard to imagine more vulnerable technology for world domination but whatever, they crash spectacularly and that's pretty much the point :)
Does it matter how they got on a kill list or what the criteria is (in determining whether there's a difference between these two scenarios. Yes, it matters overall)? You're comparing killing an armed hostage taker and saving a person whose life is in imminent danger to bombing someone halfway across the world when we have no idea what they're doing or what they will be doing; all we know is what we think they have done and what we think they will do.
If there's a hostage taker pointing a gun at someone's face, I can see what we're trying to do: step in at the last minute and prevent someone who is already visibly committing a crime (brandishing a weapon, threat of lethal force) from killing a person. Some unarmed guy outdoors, though? From a mile away? Because a committee put him on a list? What was he about to do that we stopped?
The concern being that we don't know is what makes this matter such a grave concern. Something of this nature, if decided as legal, needs to be enshrined in law so there can be no question of its use, lest we find ourselves facing the death penalty for traffic tickets.
This is a guy who was actively involved in plots that did cause bodily harm, and continued to say he had no interest in being captured and would actively fight with violence any attempts to do so. If we have a case for using lethal force at all, I'd say this would be an appropriate instance.
Yes, and when we find out someone has murdered someone we send the police to apprehend them. Sometimes the interaction between the police and the suspect leads to the suspect being shot and an investigation takes place as to whether that was warranted.
I see no way in which the drones sent could be reasonably explained as attempting to apprehend or arrest the subject.
Has proof of that he was involved in any plots been publicly presented anywhere? Based on the public record it looks like he was killed for exercising his First Amendment rights, albiet in a repugnant fashion.
This would all be a moot point if there had been a trial held (even in absentia).
These guys are destroying the best parts of America because they're lazy, they're incompetent and/or they don't respect the Rule of Law. Any of these three reasons is sufficient not to allow anyone involved in these criminal acts to prosper, flourish, or succeed in any meaningful way in our country.
Then again, you could just go to YouTube and watch any of the many video lectures in which al-Awlaki lays out his ideas about jihad and so forth. Saying you only know what the government tells you about him just demonstrates a lack of interest in doing any research of your own.
Fair enough, I haven't done that. Still, the prosecution of capital crimes, even self-confessed ones, involves well-defined legal processes. Those processes don't, and shouldn't, include assassination in cold blood.
I don't think a trial is the be-all and end-all of due process where military conflict is concerned, but I see where you're coming from. We're unlikely to agree about this as I have a considerably more hawkish view on foreign policy matters than you do, I think.
True. What I keep coming back to is the staggering amount of blood and treasure we could have saved by treating 9/11 as a criminal act by a few deranged cultists, which is what it was, instead of a traditional casus belli. Our moral authority as a peace-loving nation would also be intact.
The "hostage taker" analogy is a terrible one. There is no situation in law enforcement where police are allowed to kill a suspect immediately on sight, regardless of circumstance. When Obama added Anwar al-Awlaki to his personal "kill list" (a decision he said was "an easy one"), it became open season on al-Awlaki.
For an example of why officers can't just shoot suspects on sight: in the Dorner manhunt, LAPD shot at a truck just because they thought it fit the description of Dorner's, and ended up shooting innocent people instead.
Which means that police actually does shoot on sight, despite whatever instructions say. And in most cases, no attempted murder charges follow if they shoot the innocent.
I really like this analogy, and I'm going to steal it. It really drives the point home.
I do have to be a pedant though and point out that "fatwa" just means "legal opinion" - in common parlance, we use it to mean "death sentence" because we think of people like Salman Rushdie (whom Khomeini sentenced to death under a fatwa in 1989).
If anything, this makes it worse - at least Khomeini had to provide some legal justification for his decision[0], whereas Obama has refused to do even that.
[0] A legal justification under Islamic law, which many would agree is itself arbitrary, but that's still marginally better than "trust me, it's legal, but I'm not going to tell you why".
I was aware of that, Shia canon law is a pretty fascinating system. If you can figure out a way to keep the pithy nature of the comparison while improving the accuracy, I'm all ears.
Eschewing the rather more obvious argument that the US military's policy of unannounced drone strikes in ostensibly neutral countries could prove counter-productive, we've got this rather absurd line of argument that someone who has to all intents and purposes publicly declared war on the US, is well beyond the reach of domestic law enforcement and actively encouraging militant attacks on the US military deserves due process and a civilian trial because he was born in America.
But he's happy to endorse his fathers' proposal to reward rather less surgical strikes by dubious third party bounty hunters without any more semblance of due process, provided the alleged terrorists aren't American.
It's not meant so much as an analogy, but an example that shows the rule of "the government shouldn't kill people without a trial" not really being a rule.
The key point is the trial. You can't hold a trial in a hostage situation. They could have held a trial for Anwar al-awlaki. Once decided by trial that he committed treason, military action could be justified.
The problem is how that trial would be conducted in absentia would have been a farce. The government would also be concerned about its classified evidence. Worse, if the trial led to acquittal, it would have legitimized his cause.
An acquittal is a scary prospect of bringing out other copycats. But more scary is executing someone without trial that would have been acquitted. But we'll never know. They should have held a trial.
Anwar al-Awlaki could have had a trial anytime he wanted. He simply had to go to the American Embassy and turn himself in. As things stood when he was killed, it was impossible to bring him back for a trial without an unacceptably high risks to the people in the armed forces who would have had to capture him. If you wanted some insight on the complexities of operating within Yemen, I suggest The Black Banners by Ali Soufan. The subject of the book is the events leading up to 9/11 and Soufan was one of the FBI's top agents and strong critic enhanced interrogation. He invested the USS Cole bombing in Yemen and he covers the difficulty of working in country quite well.
They would somehow have to serve papers telling him about the trial, and offer him safe passage to the trial. Then give him a reasonable deadline to show up. If he doesn't show, hand down a default judgement and proceed to sentencing...
Then you postpone the trial until they can be found. Trials in absentia are not allowed in the US and most of Europe. In countries where they are practiced, they're a source of international criticism.
For a comparison: In Germany a sniper or a law enforcement officer killing a suspect is not necessarily specifically allowed in the law (3 out of 16 states don't have any special regulation concerning this). The legal theory to still allow shooting a hostage taker is called "(Aussergesetzlicher) Notstand", the situation where to protect one person from harm you need to inflict harm to another person. This does not make the action itself legal, but the person goes unpunished. It's actually a legal concept that I prefer over permitting killings by law enforcement.
IANAL, but I don't think there is any particular law allowing the police to use deadly force -- they just have the same self-defense and defense-of-others exception to murder laws that everyone else has. Self defense doesn't apply to threats like Anwar al-Awlaki that aren't immediate, even if they're extreme and inevitable--I can't shoot a guy for preparing to blow up a bomb an hour from now.
It's not the government killing people, it's an individual cop, and if they do so unlawfully the criminal exposure is personal. (In practice, prosecutors are reluctant to actually go after cops in anything but an extreme case, but this isn't unique to police killings)
I don't like this line of thinking, because it blurs the very real distinction between military actions on foreign soil and police actions on American soil. Those two things are, in history and practice, utterly different.
Looking at the footage of cops in humvees patrolling the streets after the Boston marathon, life in DC eight years ago, and even as far back as actions in the nineties, I'm not sure that the distinction is as clearly delineated as any of us would prefer.
I find those activities troubling and I don't think it serves the purpose of ameliorating them to pull international terrorists under the umbrella of police and criminal enforcement. The protections available to ordinary criminal defendants has already become quite eroded and distorted by the necessity of accommodating enforcement against organized crime and drug kingpins within the same framework.
I think you have to be a little careful here, because while the distinction between military action and police action is a good one, the classification of valid responses to terrorism doesn't necessarily follow. Some effective responses to terrorism have been, essentially, police work. And, obviously, some very ineffective responsive responses to terrorism have been military.
What is in question here is not whether the state can in some circumstances kill, and if this was one of those circumstances (that question comes later).
The preliminary question is whether the state is allowed to assassinate citizens without trial outside wartime, and refuse to reveal why. That's the position of the Obama administration - you have no right to question their assassinations, you must simply accept that the government knows who, when, and how to kill. That's the question Rand Paul is asking in this essay (and a few others have asked before him), that's why he says 'show us the legal case', and talks about the rights of all American citizens to a trial by jury rather than 'this action was wrong'.
If you accept that the state has the power to kill without justification or investigation (before or after the fact), a lot of the other rights you are supposed to have as a citizen become meaningless. The rule of law (especially restricting the state) is vital to protect citizens without the resources to fight the state. That's why this first question is so important, whatever you think of Anwar Awl Alaki. The rule of law restricts the activities of the state and makes it less powerful and effective, that is as it should be, so you shouldn't argue that this makes our government less able to kill people quickly - that's the point.
Moving on to the question you address of whether it was actually legal or justified - typically killings outside the judicial process and outside of wartime are viewed as assassinations and very difficult to justify; I'm not aware of evidence that Anwar Awl Alaki was planning a particular attack or involved in one, and the killing of his son a few weeks later along with some other teenage friends is based on even more tenuous evidence and justification (if any). We didn't mean to kill him is not a reasonable excuse for a government agency outside of war, and to kill someone like a hostage taker a government agency would have to submit to an investigation afterward. Killing without trial or investigation means your government can assassinate citizens at will.
> What would have been the consequences of doing nothing?
I did not expect to see such arguments on HN. Its more commonly seen in bad B plots of TV shows where the malicious doctor explain that he is saving people by releasing a deadly plague, and the deadly consequences of doing nothing would kill many many more.
An sniper may take out an armed hostage taker because the hostage is in imminent danger, and the sniper reasonably believes that deadly force is the only possible way to protect someones life. Can you honestly say that about Anwar Awl Alaki?
And that's not even the worst case - at least here one of them was a dangerous criminal. But there are many cases of police fatally shooting mentally ill, disturbed people or just somebody that looked dangerous to the police officer at the wrong place in the wrong time.
So there's no question there is an ample precedent of killing US citizens without trial by US law enforcement, and even in situations where they reasonable could be subdued. The question can be only - can US do to the terrorists the same it does to a robber or a mentally disturbed person?
Well, from a philosophical perspective: a sniper acting to save a life is acting in an emergency, whereas (presumably) an assassination ordered by the President (welcome to 2014, kid, please check your optimism and youthful enthusiasm at the desk) isn't.
"In an emergency situation, men’s primary goal is to combat the disaster, escape the danger and restore normal conditions (to reach dry land, to put out the fire, etc.)."
My take on that: under metaphysically normal circumstances, a court process is entirely appropriate. If you're in the position of the sniper, though (armed, and in a position to take a shot to save an innocent life) it's entirely rational to take the shot, and hope like hell that you were right.
Could we not have captured Anwar Awl Alaki in some form? Could we not have had the Yemen government issue an arrest warrant and have him arrested? Could we not have tried him in absentia? Unfortunately I don't know the answer to all of these and I'm not sure it's possible to know the answer.
The cops are fundamentally the same asyou as a citizen. Deadly force is justified in response to a threat to human life either yours or another. The difference is that police have specific training and rules of engagement, and they insert themselves into situations.
I think the fundamental problem is the definition of imminent threat to human life and the fog of war. Unlike a situation where a person point a gun at a policeman, imminent threat in a geopolitical stance is hard to assess.
Issac Asimov explored many of these issues in the Robot novels. How do you judge whether an individual is an imminent threat to your country? Or humanity? The answers aren't necessarily black and white.
It's impossible to have a rational argument about this because the legal justification for executing a US citizen outside of a battle zone has not been published.
"Due process" is not legal jargon. The word "due" means aporopriate or warranted by the circumstances. What "process is due" when the person hides out in Yemen for a decade evading attempts to give him more substantial process? Maybe a trial is still required, but its not a slam dunk argument.
This is incidental to the main argument, but I think it's important enough to observe here:
Since that letter, I have learned more. The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.”
I joined the ACLU a couple years ago in part because I'd read a lot about the various illegal and immoral activities parts of the government has done and didn't see an obvious way for me, a somewhat normal, random guy, to do much about it. There's a lot of (justified) Internet outrage over the murder of Anwar al-Awlaki, widespread spying, and so forth. But without converting outrage to action, the outrage means very little.
Does my $50 do much on its own? Perhaps not. But it means something.
I once gave them a similar amount, probably 10 years ago. They have since spent at least that amount on postage and call center labor asking me for more money. This greatly discourages me from wanting to give more to them, even though I like what they do with their non-outreach funding (however small that may be)
Well, that sounds unlikely given that [their Charity Navigator information](http://www.charitynavigator.org/index.cfm?bay=search.summary...). Perhaps you over-estimate the cost of fundraising. 12 cents of each dollar are spent on fundraising, and 84 cents of each dollar are spent on their aims.
It is annoying that they keep calling you, though.
Those numbers are averages. Maybe they get a lot of larger donors or recurring donors. It's quite possible that they wasted his entire donation trying to convert him from a $50 donor into a $1000+ donor.
Possibly. But if so, they do that for a simple reason: "Upselling" past donors will in most situations have substantially higher conversion rates than obtaining new donors. It may not have been cost-effective in his specific case, but it's likely a cost-effective use of their resources on average.
I had the same experience. After I let my membership expire, I continued to receive solicitations from other organizations until I finally contacted the ACLU to ask that my personal information no longer be shared with other organizations.
Remarkably, and to their credit, the solicitations from the ACLU and other groups did cease. However, despite my strong personal support of the ACLU's legal and political stands, I am not willing to submit myself to that level of junk mail and information sharing again.
I made the error of giving Public Citizen a few bucks a few years ago. They since sold my name to dozens of other organizations. There was absolutely no chance to opt-out when I donated.
It's amazing how quickly an NGO can burn off its good will.
I put them on my list of people I dontate to sometime last year, but I had the same experience as you. They utterly hassle you to the point of harassment once your "membership" begins to expire.
A reminder email or letter, fine. Maybe even a courtesy phone call, I can see that.
I've received no less than 7 or 8 letters from them, two or three phone calls, and I'm not sure how many emails because Google helpfully began filing them away as spam.
At least NPR takes the hint. Once your membership lapses, you get a single email/letter from them.
My understanding that much of the legal work is donated so outreach seems like a reasonable expenditure, particularly if it increases revenues or brings in more donated legal work.
As the other poster I believe was trying to point out 'if it increases revenue' is the wrong way to justify spending money to make more money.
Since revenue is not profit, and most charities are non-profits anyway, more revenue does not necessarily equate to more money for betterment of the causes the charity serves.
As a complete hypothetical scenario examining two extremes which hopefully do not exist.
Charity B.A.D. could spend 100% of its revenue on seeking more donations and maintaining existing ones, leaving no resources for actually doing anything related to their cause, or distributing non monetary resources donated even. But they double revenue every year.
Charity P.O.R. Could spend 100% of its revenue, which are fixed at $10 a year, on advancing their cause.
My entire point is instead of saying 'increases revenues' you should say 'increases the money it budgets toward advancing its cause.'
If that's a real concern, then that should be even more reason to join or donate, as it would indicate the situation in the US is vastly worse than most assume.
In what way? (I mean, yeah, far right wing reactionaries might take exception to it, but they probably wouldn't like a lot of other things I say or do, anyway.)
What is remarkable is how the discussion is framed in the US. Why is it that killing a US citizen without trial terrible while deliberating whether killing a non citizen without trial is terrible not even part of the discussion?
Obama's assasination program throws away 800 years of progress of civilizing the world.
At least it is a start. Once the killing of US citizen without a trial is accepted as undesirable, then we will move on to attempting to have our compatriots reflect on the morality of killing foreigners. I do not see a problem with starting with a low hanging fruit to let our friends have a taste of some sort of morality before trying to convince them to climb the tree for more...
That said, even if we some day manage to summon political will to regulate the use of violence by our government more strongly, violence of the threat thereof is an essential part of relations between human polities - framing it as uncivilized will not change that.
> At least it is a start. Once the killing of US citizen without a trial is accepted as undesirable, then we will move on to attempting to have our compatriots reflect on the morality of killing foreigners
I was under the impression that killing US citizens without a trial had been considered pretty much unthinkable until a few years ago, when your president allowed it. I may be mistaken, as I'm not from the US and so not immersed in the culture on a daily basis.
If that's true, I would say that the current development is in the opposite direction of more restraint.
> I was under the impression that killing US citizens without a trial had been considered pretty much unthinkable until a few years ago
U.S. citizens were killed in the bombing of Hiroshima and Nagasaki, and it is believed that some of the ones that went to fight for the Nazis were also killed by American soldiers on the battlefield.
Exactly. Doing so in a deliberate, targeted manner was unthinkable. This is culturally related to the American axiom of never leaving anyone behind (fellow citizen, soldier, etc). Be it hero or traitor, we will go to extraordinary lengths to bring a citizen home for proper, lawful, respectful treatment.
The president who "allowed it" (how can I put this very tactfully) was likewise, as you put it, not so immersed in the culture on a daily basis (to wit, raised outside the US) - exemplified with Anwar Awl Alaki and Benghazi.
(Am trying to handle a hot topic delicately, pointing out differences.)
Any governments primary responsibility is to their citizens. Every government in the world has killed, but there is an even further burden of proof when you turn in against yourself.
It is the difference between supporting a mission (even one that many may disagree with), and simply being an organization that exists to continue itself.
Yep, it is kind of scary. It is as if non-Americans would not count as full humans. Human rights maybe apply, maybe not, depending on immediate political situation.
Same as with the NSA revelations: the NSA is spying on Americans? Horrifying! Now obviously we have to be able to spy on Johnny Foreigner, who knows what he will be up to, but our citizens?
It only shows how racist the American political and judicial system inherently is.
America is the only civilized country where the state sanctioned murder of foreign nationals is called an execution. Principles are principles and they extend to all human beings regardless of race or nationality.
Where did the US government provide proof that their targets were actively planning attacks on civilians?
They didn't. That is the issue.
Even a secret in-absentia trial with an appointed defender unable to communicate with the person they are defending would be better than the current system. It would still be a farce, but it would be vastly better.
The current system is state sanctioned murder. Nothing less.
That none of the people in the chain of command is on trial for murder says all we need to know about the callousness of the US government.
Could you kindly provide evidence of the threats are you referring to?
You are simply saying that the officials should be taken on trust alone?
An American citizen who open admits committing a crime gets more due process than a harmless child in some third world country. Do American military men ever have to produce evidence before killing children, as in www.youtube.com/watch?v=5rXPrfnU3G0?
Or because some analyst needed to prove he is fast worker and decided to check "terrorist" box in some internal software. Or because boss decided give bonuses for catch terrorists and someone wanted a new car. The system with no independent oversight will end up abused in millions of ways, most often by people not caring about doing it right.
Heck, even real world cops make tons of mistakes or arrest people just to fill arrested bodies quotas and they do have judges to check upon them, at least in theory.
Or, most dangerously, because that person is outspoken politically dangerous person, not a terrorists and not planning anything, but did actually met with some terrorist twice. Say, muslim active in politics just about to do something uncomfortable for administration.
I appreciate the views of folks who ask questions like "why is it legal to kill anyone without trial?" But I think these arguments overlook important considerations. Courts only have power to the extent that the political branches of government choose to abide by their pronouncements. When courts overreach, there is the possibility they will be ignored, and as a result such overreach poses a grave threat to the rule of law. It is for this reason that it's important not to confuse the two separate questions of: "is this bad?" and "is this illegal?"
In the U.S., the founders expressly rejected the idea that courts and judges might bind the hands of the President and Congress in matters of foreign policy and security. The judicial branch is, by design, a domestic institution. When acting abroad, the American President, advised by Congress, retains all the powers that are inherent in an independent sovereignty. And that includes killing outsiders who pose a security threat. Sovereign nations have always had that power, and I doubt there are any that would explicitly disclaim that power.
Clearly, though, the powers the President can project domestically are circumscribed by the Constitution and can be reviewed by the courts. The touchy part is figuring out how to draw the lines: where does the jurisdiction of the court end and the sovereign foreign-affairs authority of the President begin? It is very dangerous to draw the line in a place that overextends the courts' inherently domestic authority and jurisdiction.
I propose that it's better to kill a terrorist like Al Awalki by drone strike than to degrade the judicial system by trying him in abstentia. Trials in abstentia degenerate to farce, and are illegal under federal law (http://www.slate.com/articles/news_and_politics/explainer/20...) as well as under the laws governing the International Criminal Court. Nothing in the Constitution says that due process always requires a trial. Saying that Al Awalki has due process rights, and that those rights are satisfied in his peculiar circumstances by consideration of an executive tribunal, does less violence to the rule of law than trying him in abstentia.
I know the idea of international law is not popular in America, but please consider that the idea that non-Americans might also have rights (http://www.un.org/en/documents/udhr/), including the right not to be arbitrarily killed and the right to a trial.
Declaring that the US has the right to murder anyone at any time anywhere without trial or legal remedy is declaring war on the world.
Even if you believe in international law, that doesn't mean that U.S. courts are always the appropriate jurisdiction for contesting violations of such law. Nobody doubts federal law exists, but that doesn't mean that a state court in Kansas is the right forum for a violation of federal law that happened in Nebraska.
I don't see any reason to treat it any differently than any other unprovoked attack by one nation onto the soil of another, and take it to whatever U.N. bodies have oversight over such activities (Security Council?).
Well, that's one way you can slice it; but the UDHR and most legal traditions' understanding of human rights doesn't make that distinction in law, and I'm not sure how it's useful to this discussion here?
Then legally strip him of his citizenship -- such a thing certainly can be done in absentia.
I realize many comments, don't believe the distinction between citizens and non-citizens as particularly important, but I think it is the crux of the matter. As a citizen, before roads, a post office, police force, health care -- before all of those -- I demand that my government not murder me.
If we at all pretend to live in a free society, with government buy the consent of the governed, that right should be the most fundamental.
Awlaki was born in New Mexico. He is a natural-born citizen. No mechanism exists for his citizenship to be stripped, and creating such a mechanism would do more violence to the rule of law in the long run than killing him does now; such a mechanism would most assuredly be abused in the future, while the mechanism that enables his killing today (affiliation with an entity against which we've declared war, operating on foreign soil) is harder to abuse.
Isn't the death penalty legal and quite widely supported in America? Seems to me citizens have no problem with the government killing other citizens. The question is what paperwork needs to be filled out first.
The death penalty is supported by the majority of Americans, but not a huge majority. Gallup had it at 60% in 2012.
(Furthermore, there are of course many people who think that the death penalty is acceptable in principle but take exception with how it is currently carried out; possibly believing that our justice system is insufficiently just to use the death penalty.)
Wait until the first American political or military leader associated with an arguably illegal action abroad is taken out by drone. Then we can redo this thread and many will sing a different tune.
We can invoke ridiculous hypotheticals all day. "Wait until an American citizen plotting a bombing in a major U.S. city succeeds and kills thousands of people. Then people will sing a different tune!"
So your position is that drones will always be an exclusively US technology? Nobody is going to be capable of delivering a kill by a drone on US soil in the foreseeable future? Nobody is going to justify doing that on the basis of some US actions are terroristic or otherwise illegal? Seriously, we're going to monopolize the technology and moral high ground, never mind "forever" but for five years?
I don't see why anyone would "sing a different tune" in your hypothetical. Would it be contrary to the U.S. Constitution for Yemen to use a drone to strike within the U.S.? No. Could we legitimately take it as an act of war justifying a strike against Yemen? Sure. And I think it would be justifiable for Yemen to take any drone strikes on their soil as acts of war.
In this case, we have the approval of the government of Yemen. Does it violate a provision of their laws? Maybe. Were the shoe on the other foot, our government approving drone strikes by Yemen on U.S. soil would be illegal and treasonous. But that wouldn't be Yemen's problem...
Officially, our drone strikes are denied by the US government. I would expect others to follow the standard we have set. You are assuming the US won't find itself in a hall of mirrors, with several possible origins of drone strikes having "tried" one of our leaders in a perfectly legit "secret court" - another area where we are setting global standards. All of this is very shortsighted.
There is a false adultness about claiming that nations are in a "state of nature" and that we should take comfort in living in our exceptional leviathan's panopticon.
At the end of the day, nearly everyone will kill to protect their interests. At any given time we may cultivate a thicker or thinner veneer of civilization on top of this reality. I'm quite willing to concede that it may be better policy not to engage in these drone strikes, in the sense of avoiding avoidable violence. But if any country really feels its core interests threatened, they will use whatever technology they have at their disposal against us, and good will won't count for much. That's not the nature of human society. It was within the lifetime of people I know personally that Europeans, seemingly peaceful to us Americans, were killing each other by the tens of millions. What is that but a painful reminder of the state of nature that lies beneath a very thin veneer?
Frankly, I don't think that drone strikes are worth the collateral deaths and bad PR. But there is a difference between that and saying that we "can't" engage in them, because of Constitutional law or international law or moral law. Because I think such a position is totally inconsistent with the fundamentally violent nature of international relations.
A good way to wind up with Europe at war again is to lack the foresight and restraint to treat Middle Eastern terrorists as the relative nuisance they are instead of blowing our waning resources on reshaping the Middle East and building a domestic security state.
No it doesn't. It has jurisdiction over the rights of American civilians on American soil. Anything else is significantly more murky (e.g. Guantanamo Bay which is American soil but not under US civil jurisdiction).
If I understand the Wikipedia article correctly (and of course, if the article itself is correct) then the situation is actually the opposite: it's Cuban soil but under American jurisdiction.
As far as I can tell (and the whole situation is bizarre and confusing, so it's hard to be sure of anything), the prisoners there are under US civil jurisdiction, and the ongoing troubles they have with basic rights are due to the fact that they're "enemy combatants" than the fact that they're in Cuba. Being in another country seems to be more about making it in practice harder for US civil courts to exercise their jurisdiction, but not shut them out altogether. There have been quite a few relevant rulings by civil courts.
No, it is well-established that U.S. courts have jurisdiction over the rights of everyone on American soil. Guantanamo was contested because it's not clearly American soil (an American military base leased from Cuba).
The context is a discussion of Al Awalki, a US citizen not present on American soil. However, I'm happy to re-ask my question making that context more explicit:
Is the executive then to get free reign, unrestrained by the judiciary, to declare any given US citizen currently not on American soil the proper subject of an extrajudicial killing?
Our country has one of the best snatch-and-grab military outfits in the world. Go get this guy and try him. It will probably even cost less than sending a drone with a hellfire attached to it, and it's his right as a citizen to be tried before execution.
The argument that we should send special operations forces every time to go grab people is a common one, but it falls short in several respects.
The first is that most people do not realize how long and difficult the modern training pipeline is for SOF. Operators are extremely valuable and hard to come by and you do not want to risk them unnecessarily when you have other legal means of accomplishing the mission. For example, it takes 12 months to even qualify as a Navy SEAL, and then another 12-18 months of platoon training before a deployment. Only a tiny fraction of those who start the SEAL pipeline actually make it through due to the difficulty of the training. It is for this reason that the Navy offers $40,000 to anyone who can make it through the training (http://navyseals.com/files/ChallengeSEAL.pdf) and reenlistment bonuses for operators can approach $100,000. And never-mind the cost of the equipment used during the operation. How much do you think the stealth helicopter that got destroyed during the Osama Bin Laden raid cost?
The second is that there is some serious armchair quarterbacking going on. I think its crazy to assert what our armed forces should and shouldn't do without a full understanding of what you are asking of them. The complexities of planning a SOF operation that goes deep into a place like Yemen are quite involved. For more on this, I suggest the book The Black Banners by Ali Soufan. It possible (and even likely) that a capture operation for Anwar al-Awlaki was either impossible, or possible but likely to end in the death of al-Awlaki anyway.
But this is what they do. This is why we train them. This is why we pay them such (which is still paltry for the risks). Of course it's risky, and extremely dangerous. My argument is that every American citizen deserves the right of due process and trial before they are executed.
My point is that you and I have no idea whether a mission to capture al-Awlaki is "what they do or not". To know whether such a mission is possible or realistic requires knowledge that few people in the world actually have. Whether to deploy SOF or not is a command decision made on a case by case basis. We can't know sitting behind our computer terminals whether it was a realistic option or not. I assume it wasn't, otherwise why wouldn't they have tried to capture him? I imagine he would have been a very valuable source of intel.
There are a lot of people out there who seem to feel pretty strongly about sending our armed forces in harms way in this type of situation. I can't help but wonder if any of those people stand to lose anything if such an operation were to go poorly. It just boggles my mind that we would risk American lives and millions of dollars of training and equipment when we have other legal options that are less risky.
Then I think you have to let Anwar al-Awlaki go, plain and simple.
>when we have other legal options that are less risky.
What other legal options are you talking about? What they are doing is 100% illegal, it goes directly against the 5th amendment. Straight from the article:
"The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel."
I argue that the fact that they were able to track down and kill Bin Laden is prima facie evidence that we DO have that capability.
I believe that the question is not one of capability, but of resources. We could do it, but the cost to do it is deemed too high -- especially when the gov't feels that they can just send in a missile.
> It will probably even cost less than sending a drone with a hellfire attached
First of all, I think you under-estimate the financial cost of highly trained military personnel.
Secondly, there's a metric ton of political capital at stake when the special forces are called in. The US may be more de-sensitized to loss of life than pre-911, but it's still a Big Deal(tm). The decision to send in warm bodies is not taken lightly, in large part because failures can be catastrophic and quite public.
> there's a metric ton of political capital at stake
I'm not disagreeing but killing American citizens without due process goes 100% against the fabric of our Constitution. Every special forces member I have met has a fervent desire to support and uphold the document that makes this country great. If we have enough intelligence to target this person with a drone, in my opinion, we probably have enough to send in a team to grab him.
> The decision to send in warm bodies is not taken lightly, in large part because failures can be catastrophic and quite public.
I think this statement holds true for both a drone assassination and sending in US personnel to capture an enemy combatant. Neither should be taken lightly.
I'm not disagreeing with what should be the case, but the current reality is that the decision to use drones in lethal strikes is taken far more lightly than any equivalent measure using conventional or special forces.
Military here (POG, so there's no personal experience. I just know a little more than the average civilian).
Snatch-and-grab in other countries is one of the most hazardous operations that SF does. In fact, it's one of the few operations where all of our advantages go out the window. You're fighting on their turf for a target they know you're after. What's more is that you have to fight them on their terms, as you can't just go in and kill everyone. So, imagine Mike Tyson, except he has one hand tied behind his back and one hand with a Sockin' Bopper. Sure, he'll probably still beat a lot of people, but it's likely that the other guy is going to give him a black eye.
Because of this, there are only a few times when they're willing to do snatch and grab:
1. When the person is especially vulnerable and easy to get. They might be in recently captured terrain, for example. All of his friends have run away, and he's stuck in a hideout. SF can then get a lot of support from other elements - they'll get a company from a nearby battalion, motor transport, medevac if needed, etc. The operation then becomes very lopsided, which is exactly how you want a smash-and-grab operation to go. You'll often get 20-30 people, not counting support, on an operation that takes 5 people. This is how a lot of al-Qaeda leaders got captured in Iraq.
2. When the person is so high-profile that he needs to be nailed and they need 100% confirmation that the guy is captured or dead. See Osama bin Laden.
Not only that, putting boots on the ground to grab people in other countries is a really sticky situation politically. You think the fallout from a drone strike is bad? Take a look at the fallout from SF doing hostage rescue. [1] Now, imagine us doing it all the time. People would be infuriated in a way that they aren't with drones. I don't know why; after all, the drones are the faceless annihilators, while a snatch team is trying to do the right thing. But the idea of 30 Americans flying into a city to grab someone is much more unpalatable than a drone.
Basically, I don't have a problem with SF doing it every once in a while when it's really, really important, but I wouldn't want them having to do it all the time. Better to have a process in place to use drones, one that we can all look at and vote on to decide whether we want it or not. Of course, if we want to vote for it, we could also dramatically ramp up SF involvement as well.
> Our country has one of the best snatch-and-grab military outfits in the world. Go get this guy and try him. It will probably even cost less than sending a drone with a hellfire attached to it ....
Granting the premise of your first sentence, you might want to talk to some Navy SEAL veterans (or Army Delta Force, or Marine Corps Force Recon) about the degree of difficulty and expense.
Executing someone without a trial -- no oversight, no opportunity to defend one's self -- that does less harm to the rule of law than acting in accordance with the principles of due process as set forth in the Constitution?
The Constitution enshrines certain basic rights when it comes to criminal trials: the opportunity to confront your accusers, etc. All of these would have to be discarded to make a trial in abstentia happen. This creates the precedent: "if the person is bad enough, the Constitution doesn't require a 'real trial.'" This is a much more dangerous precedent to have on the books than "if you declare war on the U.S. and hide out in Yemen for a decade evading the reach of both American and Yemeni attempts to capture you, you might get killed by a drone."
It's better to just say that the criminal trial procedure doesn't apply in this case than to water it down to make it practical for this case. It's worse for Al Awalki, of course, but better for everyone else.
I am no lawyer, and so can't say anything about a legal opinion. But from a "my way of looking at it" perspective: someone who is actively trying to kill american citizens, and is, meanwhile, preventing himself from being tried by hiding in a foreign country should be stopped. Better for all involved if he's stopped without killing, but stopped either way.
I would draw the comparison to someone holding a hostage at gunpoint. You don't put that person on trial before final judgment comes down.
The whole point of trials is to establish that the person performed the crimes that they are alleged to have performed. You can't assume they're guilty and then declare that not holding a trial is OK.
Bob is actively trying to kill Americans and is avoiding trial by hiding in a foreign country. Joe is a peaceful guy who's falsely accused of trying to kill Americans, and lives in a foreign country for unrelated reasons. By what system do you propose we distinguish between Bob and Joe?
I would draw the comparison of someone holding a hostage at gunpoint, so cops go and kill an innocent guy in neighborhood that is pretty much unrelated with the person holding the first as hostage. I'd definitely want to setup a way to judge those incompetent cops.
> someone who is actively trying to kill american citizens
...better have a judgment from a jury, proved beyond a reasonable doubt, after considering the necessary evidence that satisfied any warrant requirements and related rules.
Failure to satisfy this due process - even when the target is a well-known criminal who has fled to another country - could be evidence of the murderer having violated their oath to office. It's certainly not a quality we should allow in our politicians, officers, or civil servants.
/yes, I realize that's not the antecedent for "someone" you intended
Wasn't there some kind of unpleasantness around the time of Abe Lincoln's presidency, resulting in the killing of several hundred thousand American citizens without trials?
It really irks me when this kind of discussion is focused on US citizenship, as if nobody else counts. Either the US government has a right to decide that somebody somewhere is so dangerous that he needs killin', and then go whack him, or it doesn't. I don't see how it's not OK on due process grounds, but only if the guy is a US citizen. Anyway, this kind of rule is likely to result in some kind of a circular arrangement, in which the US whacks undesirable French citizens and France whacks German citizens in return and then Germany reciprocates by killing US citizens, and hey - no rules are broken.
BTW, I can't say that I am against all government-ordered killings in principle. Governments conduct wars and military operations, sometimes with good reasons. And wars don't just result in killing people "on the battlefield", as Rand Paul says. Suppose that some terrorist group is preparing an attack somewhere - are you supposed to send special forces after them with a death sentence from some court in their pocket?
Sometimes you start with the clear case, then extend the conclusions to murkier cases. That citizens have certain enumerated rights makes violations of those rights easier to debate to a meaningful conclusion. It's not that "nobody else counts", it's that if citizens don't have those rights protected, others surely won't.
In the case of the "late unpleasantness", "war of Northern aggression", "war of secession", "civil war", whatever you label it: those targeted had declared themselves a separate country, wore uniforms thereof, and operated in clear cooperation for military ends. Be that deemed international war, insurrection, etc it was clearly under conditions where individual trials were infeasible, akin (at minimum) to police attempting to take down an armed gang violently resisting arrest: trials only work when the defendant is engages in docile participation in the judicial process.
And yes, if one is not operating under insignia (usually of a nation) in war, to wit a citizen acting treasonously out of uniform and out of organized conflict, largely independently, there is indeed the option of "trial in abstentia" and sending in special forces to extradite - with extreme prejudice if necessary.
> Either the US government has a right to decide that somebody somewhere is so dangerous that he needs killin', and then go whack him, or it doesn't.
Every nation has the sovereign right to kill people in other nations. It's a fundamental precept of sovereignty. However, nations also bind themselves to their own laws. In the U.S., the Constitution gives U.S. citizens certain rights even when they are not on U.S. soil. That is the only thing that would make it illegal for the U.S. to kill someone on foreign soil.
Thomas Hobbes wrote that, in the absence of organised societies/government to pass and enforce laws, people are in a "state of nature" where every person has a natural liberty to do anything they think necessary to preserve their own life (what he termed war of all against all).
Civil governments remove this "state of nature", curtailing liberties and creating rights - for example, giving you the right not to be murdered by while taking away your liberty to murder other people.
As there is no government of governments to pass or enforce international laws, nations are in a permanent state of nature. One nation bombing another over some land is like one wolf fighting another over some dead prey - they're just doing what they naturally do. It's not like the wolf-police are going to stop them.
Hobbes's Leviathan is essentially a work of fantasy fiction. It has little to no grounding in historical fact. His idea of a "state of nature" is an unsupported assertion.
("And here we have the plain difference between the state of nature and the state of war, which however some men have confounded, are as far distant, as a state of peace, good will, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction, are one from another. Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho' he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge.")
Read the whole chapter. While he disagrees with Hobbes, who felt that men without government were always in a state of war, he still allows that when there is a "declared design of force" and no "common superior on earth to appeal to for relief" that in such a situation a state of war exists and one is entitled to kill even a thief for taking one's coat.
See also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) ("It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens . . . .")
Enlightenment philosophy was quite thoroughly criticized by postmodernist thinkers like Foucault who showed that enlightenment was used as a tool and enabler of oppression. Your statements support that criticism.
Moreover, I am not convinced that quoting Locke, Hobbes and US judicial precedent provides enough proof that "every nation" has a "right" to "kill people in other countries". Enlightenment philosophy is not an ultimate argument, you know.
Personally, I think this viewpoint is morally bankrupt and no government employing this "right" should be supported by its citizens.
I find arguing about "right" and "wrong" in the abstract to be a boring exercise, because that just comes down to feelings and emotion. It's no fun to argue when there's no agreed-upon set of rules to argue within!
Here, I'm not arguing that my viewpoint is "right" or "wrong" or that Locke is "good" or "bad." I'm arguing that it's consistent with the philosophical underpinnings of the Anglo-American legal and political system. Like it or not, Enlightenment thinking and Lockean philosophy in particular are an important reference point when evaluating questions about America's political system.
I certainly would. And I would support bombing Iran in retaliation, and I would assert that those actions would not be reviewable by an American federal court.
Except that this way lies violent madness. Support bombing Iran? You're now on the Iranian kill list - and you're arguing that this is a reasonable way to run international relations?
Someone has to de-escalate. I know that's not a popular view in a country where the answer to gun violence is more guns, but it's the only way to peace in the long run.
> "I don't see how it's not OK on due process grounds, but only if the guy is a US citizen."
I agree with you that it's very strange and tribalistic to think that Americans have "more rights" than any other person. If we think that a US citizen should receive due process before being killed or imprisoned indefinitely (as in Guantanamo) without evidence, so should other people. Unfortunately, countries generally protect citizens and selectively ignore the rights of foreigners.
> "Suppose that some terrorist group is preparing an attack somewhere - are you supposed to send special forces after them with a death sentence from some court in their pocket?"
Here I think you're trying to use a rare occurrence, for which we already make exceptions, to argue against the rule. Posing an imminent threat changes the rules. If you are about to shoot someone or bomb a building, you don't get a trial.
It'd be nice to have some visibility into when and where it was determined that someone was an imminent threat and whether we check that they actually were, but this letter is more about how the administration justified the killing of citizens that were not, so far as we know, imminent threats. We don't know at this point whether the administration is stretching the meaning of "imminent," whether they had info they're not sharing with us, or if they just chose to execute someone who was on the wrong team.
The rights mentioned in the Constitution have been generally understood to apply to people in the US. Likewise, there was a time when rights did not apply to black people. It's certainly possible we could pass an amendment extending rights to all non-citizens, but it would have to be done in order for the distinction that irks you to be fixed. Probably the most realistic route for that to happen is that via the UN or other treaty talks, pressure is put on the President and Congress to pass such an amendment. But people who point to international law and then scoff at the US for breaking it really should focus their scorn on their own countries for shortcomings on foreign affairs politics with the US.
I agree that there should be no distinction between citizens and non-citizens. Targeted assassinations, no matter who they are of, are morally disgusting. Using drones to do the assassinations--which inevitably results in mistakes and "collateral damage" deaths of innocents--is even worse. We retroactively justify terrorists' behavior when we use the same methods (albeit with slightly different tools) against the people who happen to surround them.
Targeted assassinations are much less morally disgusting than sacrificing thousands of one's own soldiers and hundreds of thousands of foreigners - noncombatants and unwilling conscripts amongst them - in a declared war. The reason why political leaders generally argue assassination is less justifiable as foreign policy than conventional military intervention has nothing to do with morality and everything to do with them being more likely to be on the casualty list.
Do you have a copy of Abe's kill list? Because I'm pretty sure he didn't have a targeted kill list.
Re: your hypothetical. Yes, you send in special forces to stop them based on your intel. If they lay down their weapons, you capture them. If they fire on you, you kill them. Americans don't kill people just because we think they are planning on doing something bad.
There's a way to get rid of a president. It's called impeachment. Impeachment is a political trial for political crimes. Basically looking like an idiot. It's not a criminal trial.
Why is that important? Because we don't criminalize politicians doing their job. It's expected that the president do things which would never be acceptable if an average citizen does them: kidnapping spies, blowing up things here or there, sending warships in harm's way, and whatnot. We don't call these crimes because in point of fact somebody has to make decisions like this. It's part of the job.
(I'm not approving of any of this, simply trying to explain how the system works.)
So I agree with Mr. Paul's first sentence, with one change: "I BELIEVE that the systemic killing of American citizens without a trial is an extraordinary concept and deserves serious debate."
Or, in other words, killing any American overseas without a trial is wrong all the time, but I understand presidents do things that are extraordinary. One of the jobs of Congress is to provide a check on his power. (Congress has made a terrible mess of this oversight responsibility. Congress is ultimately at blame in all of this for giving a wink and nob when it was started.) What's, for lack of a better term, evil, is the creation of a system to automatically do things that bend the rules to this degree without the president having any skin in the game at all. He gets this crazy-broad power, and he's not risking his office when the decision is made to use it. That is insane. And I do not believe a debate has anything at all to do with it. It's wrong. It should stop. There's nothing more to be said.
If the president wants to go off on some bone-headed assassination adventure, he won't be the first one, Congress should debate and take action depending on the specifics. But if he wants to create a system whereby robots are used to assassinate citizens abroad on a regular basis without trial? There's no amount of debate in the world that's going to make that work.
That's not what is being discussed here. There is difference between a combat situation as part of warfare and targeted executions of induviduals outside of war.
Yes; although war has rules. It's not clear whether this is part of a war or not.
Is the United States at war with Yemen? No.
Are the Yemenis being bombed civilians or military? Well, they're not the military of any particular state. We're in a murky territory here now, where the US gets to unilaterally declare war on individuals and deem them "not civilians" so it's ok to bomb them.
This is not a war with a state. That would be much more clear cut.
We are clearly not at war with Yemen. Yemen, the state, is cooperating with US efforts in their country.
The US gets to unilaterally go to war with individuals (that are part of a larger movement that relies on extreme violence against non-combatant civilians to achieve its goals, it is important to remember) because they've unilaterally gone to war with the US.
Dear world: We can execute you all day long without regard, but we can of course not execute an American, because that would be horrible.
I hope I am no longer around when a different, tyrannical regime develops a technology that gives them an edge that negates all of our defenses and we are subject to random drone attacks on our neighbors, communities, cities.
Face it, we are an unprincipled, unjust tyranny. We are more like than not any other tyrannical regime that had legal protections in place for the approved group of people, while totally negating those rules for people that weren't part of the approved group. It's nothing more than present day, larger scale primitive tribal society. It's pathetic.
If we want extrajudicial executions, we need transparent and verifiable proof and capital punishment for abuses and even mistakes. The higher the stakes, the more costly the mistakes.
If everyone is so confident that there is nothing wrong with their actions, why are they not stepping forward demanding capital punishment for any transgressions.
> Show us the legal case for executing __a United States citizen__ without a trial.
It kind of says it is OK to kill non-citizen untermensch. I find this attitude very common and highly disturbing.
Russian army managed to takeover Crimea with only handful of deaths. If you count death toll, US army looks like bunch of happy-trigger-amateur-cowboys.
From the article: "I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment."
Why does the author not doubt it? I doubt it until I have seen evidence.
It is my understanding that Awlaki called for the murder of American civilians, but I do not believe that meets the legal standard of treason. The Obama administration has said that Awlaki was involved "operationally" in planning attacks on Americans, but the national security state has said all manner of speech constitutes operational involvement in terrorism, including Javed Iqbal's broadcast of Al Manar, a Hezbollah-controlled television channel, and the Humanitarian Law Project's attempts to teach peaceful conflict resolution strategies to a terrorist group.
He is actively pre-empting attempts to derail his primary point.
It's possible he also believes that Awlaki committed treason, but more importantly, by making that point without any kind of moderation, he's making it substantially harder to accuse him of wanting to be soft on those horrible, evil terrorists.
He's also implicitly making the argument for a trial stronger: If it is entirely certain that Awlaki committed treason, then surely the government has clear evidence that would have made a trial a formality?
"I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment"
And yet has anyone heard exactly what is was that he did? All I ever heard is that he put out propaganda about how America sucks. But I have never actually heard any of it.
His propaganda wasn't that America sucks, it was a call to take up arms against US targets. He exchanged emails with the Ft. Hood shooter, he advised the underwear bomber, he was not a good guy..
The problem is its not civil law, this under war law..as terrorists are considered not to have the same rights as combatants under the Geneva Convention..
Spies are under similar guidelines..sometimes they get trials sometimes they just get shot
I seriously wonder why the rest of the world tolerates the US drone program.
Sure, they probably Mostly get bad guys, but the implications and ramifications of being able to kill anyone in the world at any time by remote control at the whim of a select group of people are too large to ignore. The fact that some of them are US citizens is just legal icing on the cake.
It is asked very often but bears repeating one more time... Why is it that people feel the need to take up arms against the US? I don't think this is a namby pamby kumbaya question either but is directly relevant to our long term security.
> Is it not warfare to kill someone that is plotting on harming civilians as a primary means to advance their agenda?
I think you just defined a whole lot of law enforcement operations as warfare. I do not agree with that definition, nor do I suspect many would.
If the US had invaded Yemen and they were targeting specific people to help with their strategic objectives there, that would be a more fuzzy area, and the morality of that would depend on the situation of the invasion.
As it stands, the drones are executing people in countries the US is not at war with.
That said, where do you personally draw the line? Now, take that situation and imagine that instead of the US sending robots to kill muslim preachers, that some place like Iran or China had sent in robots to the US to kill a US citizen like Jim Bell (after all, he has advocated for assassination markets, so the same argument can be made that he is dangerous). Is the line in the same place in that situation?
>the drones are executing people in countries the US is not at war with.
Because we are not fighting a state. We are cooperating with these countries not fighting them. They don't have the resources (or the resources are unreliable) to treat these things as law enforcement problems.
And I'd personally draw the line at a clear and credible threat. If they demonstrate they have the will and have, or are actively trying to obtain, the means to attack.
For example, if someone speaks about killing people then amasses a bunch of explosives, it is time to act. If someone seems to be acting in a command capacity to people that have the means and will, as previously described, it is time to act.
On the other hand, if someone happens to be in contact with someone in that first group but does not seem to be aiding them (passing commands, gathering materials etc.) then that person should not be targeted.
If we could go to these countries and tell them "Listen, we have intelligence telling us that this person is training people and sending them into this country to kill people. Could you go grab them for questioning and maybe gather some evidence and put them on trial?" and if they would act on that, that'd be great. I'd be all for that. But that seems like wishful thinking more than anything.
If that someone is residing outside your territory, and if you act outside the law of the country that someone reside in (or have a formal declaration of war against that country), then it is definitely not warfare. The most fitting word I can think of that describes the action of killing the person would be 'terrorism'.
Seriously - sovereignty of other countries is a thing. Learn to respect that.
I hesitate to make historical comparisons because many are melodramatic, but I think it's fair to relate this time to another dark period in U.S. history.
The word "terrorist" has become so powerful that it supersedes judicial processes. In early 2002, federal agents harassed many of my friends who belonged to a mosque in the Northeast. Some were detained and abused by police officers. Sadly, this behavior has continued, further evolving into a vehicle for racism and religious prejudice. I recall a story on HN several months ago about a startup investor who was detained in an airport all day because he was Muslim.
If you don't like your neighbors because of their names, their traditions, the color of their skin or the smell of their food, you can simply call them terrorists. That word, even when it is devoid of concrete evidence, has the power to ruin someone's life. In this specific sense, our modern fear of "terrorists" reminds me of the power of the word "communist" during the 1950s, in the McCarthy era.
Eventually, most Americans saw McCarthy's so-called Red Scare for what it was: an excuse to act based on personal prejudices and political agendas.
Superficially, the rule seems like it would be based on whether capturing / arresting the person is not feasible, but doing nothing has a high probability of resulting in that person being involved in a violent crime (killing of hostages, participating in a terrorist act). Unfortunately, deciding if that is true for a given situation is of course a judgment call. But to simplify it down to "the government shouldn't kill people without a trial" overlooks some things that need to be considered. Could he have been feasibly arrested? What would have been the consequences of doing nothing?