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View Diary: The Power to Assassinate a Citizen (228 comments)

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  •  That it isn't a court case... (13+ / 0-)

    ...is why it's unconstitutional.

    When a citizen commits treason, as we're alleging (isn't the claim that he's al-Qaeda the same as saying he's making war on the United States and adhering to her enemies?), then the Constitution lays out a specific process that must be followed.  And we're simply not following it.  Believe it or not, letting the government willfully ignore the grant of power that represents its sole source of authority is a problem for some of us, even when it ignores it in order to stick it to some jackass like al-Awlaki.

    "Speaking for me only." -Armando

    by JR on Wed Sep 29, 2010 at 09:47:53 PM PDT

    [ Parent ]

    •  We don't have civilian jurisdiction (2+ / 0-)
      Recommended by:
      citizen k, Deep Texan

      in Yemen.

      We have military jurisdiction.

      •  That Full Spectrum Dominance thingie? (4+ / 0-)

        Or the Bush Doctrine?  

        The Global War on Terror is a fabrication to justify imperialism.

        by BigAlinWashSt on Wed Sep 29, 2010 at 09:52:24 PM PDT

        [ Parent ]

      •  And we have trials in absentia, too. (5+ / 0-)

        "Speaking for me only." -Armando

        by JR on Wed Sep 29, 2010 at 09:57:14 PM PDT

        [ Parent ]

        •  we do not (2+ / 0-)
          Recommended by:
          JR, Deep Texan

          not for capitol crimes.

        •  Actually, no, we don't. (0+ / 0-)

          Correcting myself here--we don't try in absentia.  But--based on a very preliminary consideration of the question--I believe we could do so constitutionally, if Congress authorized it through statute.  The issue would be (I think) if the Confrontation Clause mandates that the defendant be confronted in person, or if it requires that he have the waivable right to appear and be confronted in person.  IANAL, and I really don't know much 6th Amendment law.

          "Speaking for me only." -Armando

          by JR on Thu Sep 30, 2010 at 01:16:09 AM PDT

          [ Parent ]

      •  What does that have to do (0+ / 0-)

        with his rights as a US citizen?

        The answer is: Nothing.

        •  US citizens do not have the right (3+ / 0-)
          Recommended by:
          SoCalSal, JTinDC, Deep Texan

          to levy war upon the United States.

          •  No, but when they do so... (0+ / 0-)

            ...they have the right to be tried for treason in accordance with the Constitution's express provisions.

            "Speaking for me only." -Armando

            by JR on Thu Sep 30, 2010 at 01:17:22 AM PDT

            [ Parent ]

            •  sorry but there is no legal/constitutional basis (3+ / 0-)
              Recommended by:
              SoCalSal, JTinDC, Deep Texan

              for your argument.

              US forces legally dispatched into battle are not constrained in any way by the citizenship of the opponents. Do you contend that two US missions, one against an AQ camp commanded by a dual US/Yemeni citizen and one against a camp commanded by a non-citizen must operate under different rules? If the dual citizen changes command post, do the rules for the two forces change?

              Of course, once someone is in custody, they may invoke their rights as citizens, although I doubt those would survive any proceedings at all.

              •  That is not my contention (0+ / 0-)

                Suppose we find out that al-Awlaki is camping in a pup tent by himself in the middle of nowhere, where he has no defensive positions or armed assistance.  Is your contention that we're allowed to kill him even if he could be captured, even if he's unarmed, even if he's undefended?

                "Speaking for me only." -Armando

                by JR on Thu Sep 30, 2010 at 01:59:50 AM PDT

                [ Parent ]

                •  wrong but not illegal (3+ / 0-)
                  Recommended by:
                  SoCalSal, JTinDC, Deep Texan

                  unless he is flying a white flag or otherwise indicating that he is surrendering.

                  The military is constrained in theory under rules of engagement (which we violate routinely), but if someone is actually in active military conflict with the USA, then they are protected only as far as the rules of war go.  

                  •  "Active military conflict" (0+ / 0-)

                    I think you've defined that term far, far too broadly if you're considering an unarmed, alone, undefended guy as "actively engaged in conflict."

                    But supposing you're correct on the law, and this is somehow a permissible act, should it be?  Should we be able to say, as I think you are arguing we are "this citizen may be legally killed in any context, so long as he isn't already in US custody"?

                    "Speaking for me only." -Armando

                    by JR on Thu Sep 30, 2010 at 02:08:25 AM PDT

                    [ Parent ]

                    •  it's not exactly simple (1+ / 0-)
                      Recommended by:
                      Deep Texan

                      but I can say for certain that armed, religious maniacs who are engaged in organizing terror attacks on the US are not engaged in the democratic process. There is a difference in kind between state action against someone who incites draft resistance and someone who attempts to e.g. blow up airplanes full of civilians. The purpose of the constitutional limits on the government are to assure the rights of democratic self-government and those rights do not extend to military campaigns to impose the rule of religious wackos.

                      To me, the key issue is the issue of designation of combatant and battlefield. The Bush administration claimed the right to define an unarmed US citizen walking through a domestic airport as a combatant and to designate domestic airports as battlefields. That's clearly an abuse. But is designating an AQ commander in tribal Yemen a combatant on a battlefield incorrect? I don't see it.

                      •  Again, traitors aren't engaged in the process... (0+ / 0-)

                        ...either, but they still receive explicit constitutional guarantees of trial and sentencing process.

                        Does it matter to you that the kill order, so far as I can tell, doesn't limit itself to "combatants on a battlefield," but seems to extend universally (or at least everywhere outside the US)?

                        "Speaking for me only." -Armando

                        by JR on Thu Sep 30, 2010 at 02:38:46 AM PDT

                        [ Parent ]

                        •  is that really the case? (1+ / 0-)
                          Recommended by:
                          Deep Texan

                          If the lawsuit had asked that the US be enjoined from killing Mr. Aulaqi off of the field of battle unless during the course of resisting arrest in ways that would normally permit use of lethal force, it would be a very different dispute and I think a more valid one. But they are asking for a much wider injunction.

                          As far as I know, nobody but the government knows what the actual US policy is.

                        •  just to make it specific (2+ / 0-)
                          Recommended by:
                          SoCalSal, Deep Texan

                          Would you argue that an order to send a missile into the commander's tent of an AQ military encampment in Yemen was wrong/illegal?

                          •  I wouldn't, no, depending on Yemen's position. (0+ / 0-)

                            But if that commander were a citizen of the US, and the order was instead to kill him however, wherever, whenever, then I would have a problem with it.  Much of your argument seems to rest on the idea of the context of war, that everywhere is a battlefield (or at least that Yemen counts as a battlefield).  My point is that this doesn't seem to be a contextual kill order, but a standing one that applies nearly everywhere.

                            I think our root disagreement is that you think the government has the war power to declare a single citizen a legitimate target for military operations, so long as that citizen is "making war" on the United States.  I think that when a citizen "makes war" on the US, he's committing the crime of treason, and unless he's in a context where capture, detention and trial would be impossible, such as an armed encampment or firefight on a battlefield, killing him violates the Constitution.  But I can't define "battlefield" as "everywhere in the world where an enemy might be" since that would make a circular justification for military action, and I can't accept that someone might be summarily executed for treason without first being tried and convicted, or indeed without evidence being presented at all.

                            And even accepting your arguments in this particular case, I think we're then left with a very dangerous level of Presidential discretion in future cases.  If, on secret evidence with no trial (I don't think we've even charged him with anything yet), the President can declare a citizen of the United States to be a military target, then we've placed a huge amount of power into the hands of a single person, to a degree that I think undermines the purposes of the Framers (a case I lay out in Section I of the diary).

                            "Speaking for me only." -Armando

                            by JR on Thu Sep 30, 2010 at 10:52:12 AM PDT

                            [ Parent ]

                •  If that turns out to be the case (1+ / 0-)
                  Recommended by:
                  Deep Texan

                  we would capture him, and the argument would be moot.

          •  The citizen in question (1+ / 0-)
            Recommended by:
            truong son traveler

            Has not been charged, nor indicted for ANY crime(s).

            As such the citizen retains all rights and the government is not allowed to abrogate them.

            •  the government is not obligated to abort military (3+ / 0-)
              Recommended by:
              SoCalSal, JTinDC, Deep Texan

              missions that are legally dispatched due to claims of citizenship by members of the opposing military force.

              There is zero constitutional basis for claiming any such limitation.

              You are confusing the rules governing prosecution of individuals in custody with rules governing the management of military actions.

              •  What does that have to do with ANYTHING (1+ / 0-)
                Recommended by:
                2020adam

                In this case the PRESIDENT has NAMED an individual person to be targeted for assassination.

                It has nothing to do with whether or not an American citizen is killed in fighting against American forces. UNLESS the entire purpose of the operation is to exterminate that one person.

                No, I am not confusing prosecution of individuals in custody.

                The 5th amendment very clearly states "No person shall be held to answer of a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury".

              •  And you're confusing a standing kill order... (1+ / 0-)
                Recommended by:
                2020adam

                ...with the incidental chance that he would be present at an operation.  We're not talking about stopping combat to ask for an enemy's driver's license: we're talking about a standing kill order issued against an American citizen.

                "Speaking for me only." -Armando

                by JR on Thu Sep 30, 2010 at 02:01:29 AM PDT

                [ Parent ]

                •  but that's the question under litigation (1+ / 0-)
                  Recommended by:
                  Deep Texan

                  the demand of the ACLU/Al-Aulwaki Sr. is that US forces be forbidden from killing Mr. Aulaqi (I'm trying a different spelling on each instance) except in self-defense or to stop an imminent threat that cannot be stopped in any other way.

                  Would it be legal for a US sniper in Yemen to kill him while he was in a military camp? I say "yes".

                  It's not as if the US were claiming the right to shoot him down on the street in Istanbul or Paris.

                  •  Isn't that exactly the right the US claims? (1+ / 0-)
                    Recommended by:
                    2020adam

                    If he's operating out of a cell in the Huitieme Arrondissement or a tent in Yemen, the legal theory you're advancing would seem to lead to the same result.

                    "Speaking for me only." -Armando

                    by JR on Thu Sep 30, 2010 at 02:11:34 AM PDT

                    [ Parent ]

                    •  I don't think so (1+ / 0-)
                      Recommended by:
                      Deep Texan

                      If he was in Paris, the US would be constrained by both US law and treaty.

                      Third, even if the plaintiff were to have standing, the particular relief he seeks—
                      declaratory and injunctive relief that lethal force not be used unless a threat was imminent and
                      no reasonable alternative existed—would require the resolution of clearly non-justiciable
                      political questions. In particular, plaintiff’s requested relief would put at issue the lawfulness of
                      the future use of force overseas that Executive officials might undertake at the direction of the
                      President against a foreign organization as to which the political branches have authorized the
                      use of all necessary and appropriate force. Specific decisions regarding the use of force
                      frequently must be made in the midst of crisis situations that can arise at any time, and that
                      involve the delicate balancing of short- and long-term security, foreign policy, and intelligence
                      equities. The Judiciary is simply not equipped to manage the President and his national security
                      advisors in their discharge of these most critical and sensitive executive functions and prescribe
                      ex ante whether, where, or in what circumstances such decisions would be lawful.

                  •  Wait, what? (0+ / 0-)

                    We're not at War with or in Yemen. Yemen is Turkey, minus any specific treaty issues. The United States Government is claiming exactly and precisely that very right. They claim the right to kill him wherever they find him in the world.

                    •  Apparently we are at war in Yemen (1+ / 0-)
                      Recommended by:
                      Deep Texan

                      The obvious difference is that Turkey has a functioning legal system.
                      That is, in Istanbul, the US has the option of sending civilian police to, in cooperation with Turkish police, detain and possibly extradite individuals. A military commander in an armed camp outside of the control of what passes for government in Yemen is not in the same situation. And the government of Yemen has apparently requested special forces assistance.

                      •  See, this is the problem though. (0+ / 0-)

                        We really aren't at War in Yemen. This is why I have so much trouble with so many of the contingent arguments about how constitutional all of these shenanigans are.

                        The President doesn't have the power to declare war. He just doesn't. I get that, as a country, we've accepted that Congress wets its pants when asked to take that much responsibility for our military conflicts, but that doesn't mean the Constitution meant something when it plainly didn't.

                        You can't kill a US citizen on the grounds that, nine years ago, the legislature told the President he could do whatever he wants for a decade or two.

                        If a citizen engages in a conspiracy to commit a crime, then makes himself very hard to get to, that doesn't mean the government can bomb his house. We can dress it up in legal niceties, but we're talking about killing a citizen who really is not on anything that any of us could consider a battlefield. The President can't just start bombing a country, then claim that his decision to bomb that country means any US citizens he finds inside, he gets to specifically target for killing.

                        •  We're at war w/ al-Qaeda. (2+ / 0-)
                          Recommended by:
                          SoCalSal, Deep Texan

                          That's what that AUMF 9 years ago did.  So, yes, the President can kill an al-Qaeda member based on what the legislature did 9 years ago.

                          Note also that we're not talking about someone in a criminal conspiracy, but a member of an organization with which we're at war.  These two things are different in kind, and each is treated differently under the law.

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