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

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  •  Except for one thing: (0+ / 0-)

    When a noncitizen is believed to be making war on the United States, he's simply an enemy and is due very few protections.

    When a citizen is accused of making war on the US, he's being accused of treason, which is a constitutionally defined crime with specific due process requirements.

    "Speaking for me only." -Armando

    by JR on Thu Sep 30, 2010 at 10:55:16 AM PDT

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    •  No. US citizens fought in the German WW2 army. (0+ / 0-)

      We did not charge them with treason.  We tried, and tried very, very hard, to kill them.  Without trial or attempts to capture them first.

      Further, even if you were correct, it would only mean they are both enemy soldiers AND subject to charges of treason.  But the latter does not cancel the former. If it did, Lincoln could never have waged the Civil War.

      The fundemental problem with the diariest's argument is that they are trying to shoehorn a true political question into a legal process.  Bush v. Gore should have taught us that that can not end well (and would not, do you really think SCOTUS would overrule the CommanderinCheif on a question of war tactics? Do you really think SCOTUS wants to either become the Cheif Executive or irrelevant?)

      •  Foreign state armies in declared wars... (0+ / 0-)

        ...are simply a different context.  As is a state of rebellion and insurrection (though, really, much of what Lincoln did during the Civil War was unconstitutional, but the exigencies of the times excused the excess in a way that the modern situation, I think, doesn't come close to.  The Confederate insurrection was an existential threat to the US.  This interview with Daniel Farber touches on some of the constitutional issues raised during the Civil War).

        In WWII, we followed the laws of war.  If we were going to treat al-Awlaki in accordance with the Geneva Conventions, this would be a different discussion.  But the decision made early in the Bush administration to treat al Qaeda as neither enemy forces nor criminal conspirators--either option would have been constitutionally sound--has led to the assumption of a Presidential power to effectively declare war against a citizen, which I think is shaky terrain at best.

        "Speaking for me only." -Armando

        by JR on Thu Sep 30, 2010 at 01:24:23 PM PDT

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        •  US hasn't 'declared war against a citizen', he is (0+ / 0-)

          a member of a group that has declared war on the US - and repeated carried out acts of war (and mass casualty acts at that) in furtherance thereof.

          Further, simply saying 'its different' does not make it so.  What is the inherent difference between the "group that was Nazi Germany and the 'group' that is A-Q?  It is fixed boundaries?  Then we can not make war on pirates? See, Barbary.
          Is it uniforms? That's just silly.

          The bottom line is you are trying to draw a distinction between members of an enemy that is at declared war with us: putative citizen vs. non-citizen.  But there is simply no basis in the Law of War or philosophy (or theology) of Just War to distinguish the 2 simply on that basis.  

          Now, if there was some other basis in addition to putative citizenship, e.g., he was not in a nation where 1) A-Q is planning and launching attacks from in that war, and 2) the possibility of a police capture is non-existant, you might have a better argument.

          BTW, you might want to deal with the major I made rather than just picking nits: this issue is truly  susceptible only to political resolution.

          •  I don't dispute your major point. (0+ / 0-)

            In fact, I deliberately avoided mentioning that the solution to the problem is court challenges, because I agree that this is a political question, one best resolved by electing Presidents who believe in limited executive power and encouraging Congress to reassert itself in matters of war powers.

            Fundamentally, we disagree about what naming a citizen as a military enemy means.  I believe in another thread you said you thought that the 9/18/01 AUMF was "ridiculously overbroad" (I think that was you, though it may have been someone else).  I believe it was both ridiculously and unconstitutionally overbroad, in that it delegated to the President the core legislative function of declaring who our war powers might be used against (what I consider to be the key component of the power to "declare war" and the key distinction between "declaring war" and "making war").

            The bottom line, as I see it, is that you're trying to draw a line that allows a President the power to unilaterally declare that a citizen may be targeted by the military.  I've already made it perfectly clear that I see this as different than confronting a citizen on the battlefield, or during a state of insurrection or rebellion.  What has happened is that the person himself has been declared the battlefield--anywhere he might be is a battle zone, and any force may be used against him.  As I said in the diary, even if we accept the idea that this is constitutional (which I do not), we have to recognize that this places an incredible amount of power and discretion in the hands of the Executive Branch, and in my view undermines the purpose of separation of powers.

            "Speaking for me only." -Armando

            by JR on Fri Oct 01, 2010 at 12:34:37 PM PDT

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          •  Actually, you're entire theory rests on uniforms. (0+ / 0-)

            When the whole idea of establishing the "unlawful combatant" designation came about, thus allowing us to skirt international law and avoid applying the Geneva Conventions at our prison camps for detainees ("detainees," not "prisoners of war," you'll note), the fact that they fight as non-state actors and without the uniform of any nation was a key component of the argument that the international laws of war were inapplicable.

            As to the Barbary Pirates, there's an explicit constitutional provision dealing with pirates, which actually suggests that they should be treated separately from general war powers.  But if you look at the historical record, Jefferson and Congress referred to the "Barbary States" and considered this an action against a foreign state that had declared war.  The authorization for using force in that conflict began "WHEREAS the regency of Tripoli, on the coast of Barbary, has commenced a predatory warfare against the United States," and the targets were named as "all vessels, goods and effects, belonging to the Bey of Tripoli, or to his subjects."

            All I'm asking here is that you consider the implications of what you propound.  Try asking "what could President Palin do?" and I think it will help show what my underlying concern is.

            "Speaking for me only." -Armando

            by JR on Fri Oct 01, 2010 at 01:02:40 PM PDT

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          •  Lastly, where the Court has spoken... (0+ / 0-)

            ...on the difference between citizen-enemies and noncitizen-enemies, it disagrees with what you claim the law is.  In Hamdi v. Rumsfeld it was held that the Executive Branch doesn't have the broad degree of power to detain citizens as it does non-citizens.  Further, it held that

            "An assertion that one resided in a country in which combat operations are taking place is not a concession that one was 'captured in a zone of active combat operations in a foreign theater of war,' 316 F. 3d, at 459 (emphasis added), and certainly is not a concession that one was 'part of or supporting forces hostile to the United States or coalition partners' and 'engaged in an armed conflict against the United States.'"

            Simply saying "Yemen is a nation where A-Q is planning and launching attacks" is insufficient to strip him of all rights of citizenship.  If he were to be captured in Yemen and brought to the US, his citizenship would undeniably be relevant.  To say that his membership in al Qaeda strips him of all rights of citizenship is simply incorrect, just as it was incorrect to say that Hamdi's purported membership in the Taliban stripped him of his.

            "Speaking for me only." -Armando

            by JR on Fri Oct 01, 2010 at 01:15:32 PM PDT

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            •  This, like that in 2d para of ur 1st is irrelevan (0+ / 0-)

              t: They deal with how one treats persons in custody.  He is not.

              This also answers the 'battlefield' question.  You do not need to say the 'whole world' is a battle field to recognize that Yemen is currently in fact engaged in a hot war against A-q allied forces.  Ie., there is a war going on there, in which A-q is present and supporting one side (if not itself a combatant, tho I suspect the latter is true too).

              The extant hot war is critical IMO, as it makes the normal channels for dealing with this person - i.e., capture by policing operations (though conducted perhaps by military forces) impracticable.

              Your Barbary pirate analysis actually raises an interesting pt: The Bey harbored the pirates, benefited from them and refused to stop them, much as Taliban-Afghanistan did. Thus, it justifies the war against Afghanistan when 9/11 was actually done by A-q.  Yet, the war was not with the geography of that country but with the regime, the Taliban, much as European WW2 was against the Nazi's not the German countryside (or really even populace).  That regime, unlike the Nazis, was not defeated, but fled and still exists and acts against us.  Consequently, we retain the power to continue to prosecute the war against them - and their ally/agent A-q - and this includes targeting their soldiers and political officers, even if they were recruited and/or joined post 9/11.

              The ultimate culprit is, not surprising to me, Bush's - as he allowed both Taliban and A-q to escape, thus denying us a clear end to the war.

              (Parenthetically, 'we' did not 'name' this man an emery.  He either is or is not an active member and supporter of A-q.  You do not deny that he is.  

              Also, piracy in Art. I Sec 8 is limited to "on the high seas" and Congressional power to "define and punish" same.  It was intended to address freebooters (-boaters)not justify invasion and war upon harboring States, as that would be under the war power.)

              •  It's relevant to the argument concerning... (0+ / 0-)

                ...whether war powers may be limited differently depending on the citizenship of the enemy, an assumption you discounted earlier.

                And, again, Hamdi roundly rejects the idea that a nation may be considered as a whole a battlefield if part of it is--in that case, the Court rejected the idea that even Afghanistan could be considered entirely a battlefield.  How you can say that what wouldn't apply to Afghanistan (where there is a clear mandate for the use of military force) would apply to Yemen (without a clear mandate) is, to say the least, confusing.  If there's fighting in New York, San Francisco isn't a de facto battlefield.  That much is pretty clear from Hamdi.

                Saying there's an extant hot war in a country like Yemen because A-Q might be there is like saying there's an extant hot war in the US every time we arrest a terror suspect here.  It just doesn't fly.  There are no combat troops on the ground, there's no occupation, there are no regular military operations...it turns the phrase "hot war" into something essentially meaningless.

                Lastly, re: the piracy argument: that seems beside the point, since Congress authorized action against the state that harbored the corsairs.

                "Speaking for me only." -Armando

                by JR on Fri Oct 01, 2010 at 05:00:49 PM PDT

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                •  There is a war extant in Yemen, just not with US (0+ / 0-)

                  troops (officially). (Note this is not simply a technical issue, but also impacts the practicality of restricting operations to police/capture.  The 'Blackhawk' down situation.)

                  As for Hamdi, the whole pt was habeas, which requires the claimant already be in custody, because they are challenging their continued custody. Being in custody is the essential fact. Thus, it is simply inapplicable to this situation. It also demonstrates the difference in a court's ability to fashion and enforce a remedy: a court can order the US to release a habeas claimant, an altogether different thing.

                  •  This is a tangent, but... (0+ / 0-)

                    ...detaining a combatant is inherently related to war powers.  The Court placed a limit on those powers vis a vis a citizen.  I make no point beyond that.

                    "Speaking for me only." -Armando

                    by JR on Fri Oct 01, 2010 at 11:46:50 PM PDT

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