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The President of the United States recently directed the execution of Anwar al-Awlaki. Mr. Al-Awlaki, an American citizen, had never been charged with a crime, let alone tried and convicted before an impartial judge or jury.  This idea that the executive can unilaterally determine the guilt of a citizen and impose sentence is, to put it mildly, a regression to not even the 19th century that Republicans seems to love, but to approximately the 13th century.

On the other hand,  Mr. Al-Awlaki, was an active, committed supporter of an organization that remained committed to harming America by killing Americans.  The United States government claims he was actively engaged in terrorism and he had put himself beyond the reach of the American judicial system.  If the United States is right and you believe Obama's action was illegal, what, if any, is the alternative course of action that would have been both legal and effective? Perhaps more importantly, what are the lines which limit the unilateral executive death warrant?

It is important to note that while there have been some attempts to minimize Al-Awlaki's citizenship by referring to him as American born, there aren't two classes of American citizens. Al-Awlaki was as much a citizen as you or I, Barack Obama or Rick Perry. Thus, whatever can be done to him can, under the same circumstances, be done to you.  (And, President Perry will have the same powers that President Obama does.)

Some have taken the view that Al-Awlaki was a traitor and that justifies his execution.  But the Constitution is unequivocal: you cannot be deemed a traitor except upon the statements of two witnesses in open court.  To put this another way, it is clear that absent a trial, to penalize Al-Awlaki for treason was unlawful.

It is not, however, necessary to call Al-Awlaki a traitor for his execution to be legitimate. Those who acquiesce in the execution may view the action in military terms:  Al-Awlaki was a legitimate target because he was actively engaged in combat operations against the United States, whether or not he was technically a traitor.  

Al-Awlaki is likened to an American citizen who was a German (or Confederate) soldier on a battlefield.  Clearly, such a person is a legitimate target.   In the case of  Al-Awlaki, one can argue that being in rural Yemen with known al-Qaeda supporters is equivalent to being on the battlefield and once someone is on that battlefield (absent, perhaps, exceptions, for medical personnel or journalists) he or she may be a legitimate target without regard to citizenship (or even if his citizenship is known to be American) and that there is no difference whether one is targeted individually or as a member of a class.

One implication of this analysis is that Al-Awlaki could have gone to another country and not been a legitimate target.  Another is that if you or I go to an area or country generally known to have a large number of active members of Al-Qaeda we are giving up a significant part of our rights as American citizens.

If this is the basis for enabling unilateral Presidential death warrants, determining what constitutes a battlefield is critically important. Parts of Yemen, Somalia and Afghanistan are clearly battlefields. Other places might also be battlefields.  Presumably, the President gets to make this determination, based on the AUMF passed in 2001 (or any subsequent similar authorization).  The degree to which this determination is constrained is unclear.  

Unfortunately, the Administration's justification for the execution differs from the above analysis in one critical respect. They argue that the basis for Al-Awlaki's execution was solely that he was involved in planning terrorist operations, without regard to his being located in Yemen.  Alternatively, one could view this as a claim that the entire world is a battlefield against terrorism.  The implication of this difference is that Al-Awlaki would have been a legitimate target anywhere in the world (except possibly in the United States).  This is a broader claim and potentially a more serious problem:  it is far more likely that an ordinary American will go abroad than it is that he or she will visit a country that is a battlefield.

The analogy offered here is that just as it was permissible to assassinate Admiral Yamamoto or a Confederate General, whether or not on an actual battlefield, it should be permissible to execute Al-Awlaki.  However, unlike the two examples, Al-Awlaki is not openly acting in a military role with respect to the enemy.  Of course, presence on a battlefield can substitute for openly acting in a military role and in Al-Awlaki's case it probably does; but that does not seem to be a constraint that the Administration believes is binding.

Absent the presence on the battlefield requirement, you have a situation where the President can unilaterally decide to execute anyone he or she believes is a person described in the AUMF or other Congressional authorization on evidence that cannot be contested before an impartial arbiter and might not stand up in court as long as that person has left the United States.  There are reasons why the Constitution exists:  Presidents and government officials can act in bad faith and they get things wrong.   That is why we require trials and evidence and impartial judges and juries.  

Even if, as I believe, President Obama (and his subordinates) acted in good faith; and even if they were not mistaken in determining that Al-Awlaki was an operational terrorist, allowing executive death warrants anywhere in the world, other than the United States, sets a very dangerous precedent that we may all have cause to regret.

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Comment Preferences

  •  I'd agree with you if this were the old U.S. (1+ / 0-)
    Recommended by:
    Leftcenterlibertarian

    but it's not anymore. It's been replaced by a new U.S. where not enough people care anymore and that old stuff is irrelevant.

    And, in my opinion, it's fairly easy to pinpoint where, in the last two administrations, the new way of looking at the law came into being.

    Geneva Conventions = quaint

    Look forward and not backward

    "Things are never so bad they can't get worse" - Dallasdoc

    by Shahryar on Tue Oct 04, 2011 at 02:48:01 PM PDT

  •  Al Awaki was considered (3+ / 0-)
    Recommended by:
    thestructureguy, second gen, VClib

    part of command and control even if his only function was as a propagandist and recruiter. He chose to move to a foreign country to work with al Qaeda. Nobody forced him to do it.

    The rules of war and the conventions on armed conflict deem it permissible to take out command and control members no matter where they are or their citizenship. He could have been sleeping in his bed in Yemen.

    As to the broader claim about the battlefield and this is the unfortunate part of the whole War on Terror construct and the AUMF. There is no set battlefield.

    Republicans 2012 . . . Keeping millions out of work to put one man out of a job.

    by jsfox on Tue Oct 04, 2011 at 02:49:48 PM PDT

  •  good diary. (1+ / 0-)
    Recommended by:
    Leftcenterlibertarian

    I have a question, by the way not being an American.

    ... as long as that person has left the United States ...
    ... allowing executive death warrants anywhere in the world, other than the United States, ...

    what is this distinction? how does the argument go that it may be allowable to have such an assassination outside the border but not inside the border?

    Another question. According to the military analysis, and even accepting the Yamamoto standard. If it is a military conflict, then the opposing force has the same rights as the own force. The Japanese then would have had rights to assassinate Nimitz if they had had the opportunity. So that means, al quaeda then has "the rights" to assassinate and kill the American president, who is after all the Commander in Chief. al quaeda could then not be condemned for murder, unless it be for excessive "collateral damage" killing of civilians.

    what´s the counter to that, from the proponents of the military likening?

    •  As long as that person has left the United States (2+ / 0-)
      Recommended by:
      marsanges, VClib

      because courts are unlikely to tolerate the argument that killing should be allowed where arrest is possible or acquiesce to the idea of the United States as a war zone.  

      With regard to your second question, the simple answer is that non-state actors are not legitimate combatants.

      •  thank you. (0+ / 0-)

        I am not really surprised by both answers but am really interested to hear how people think.

        Ad (1), difference by region:

        unlikely to tolerate the argument that killing should be allowed where arrest is possible

        that excludes not just the US but a very large part of the world. Even Egypt for example. And I am pretty confident that Israel would be no more pleased if the US assassinates anyone (American or not) within its borders than the UK was pleased when Russia killed that dissident that was living in London.

        If the "inaccessibility allows outright killing" is the standard, then logically, this boils down to a kind of judicial battlefield argument. We cant get at him to try him, so we can kill him from orbit if need be. That is a very restricted claim, because in truth, by far the most parts of the world really are accessible to police work.

        Ad 2, military conflict:

        I am not well versed in laws of warfare, but I do remember that the rules of land warfare specifically do not require combatants to be "state" actors. We have far too many civil and guerilla wars for any such restriction to be possible. Read up on the laws again - I seem to recall that a legal combatant had to be recognizable (i. e. no hiding in the civilian population) but by no means be a "state actor". I may be wrong in this - would like to hear a serious argument on that.  But I faintly recall that the reason to generically call terrorists unlawful was not that they were nonstate, but that they were unrecognizable. So by definition, a defender could not know against who to defend and therefore could not avoid indiscriminate response (which is and remains restricted even in warfare).

        I also recall, from the discussions about terrorism in the 1970s, that states refused to apply the military analogy to terrorists, precisely because this would have allowed the terrorists legal freedom to do things as the Cole bombing (no civilians involved there). They insisted on treating terrorists as criminals - citizens breaking the law - and accepted having to treat them according to criminal laws, so as to avoid giving the terrorists any "rights" to violence, which is the case if armed conflict is invoked.

        What has changed compared to then?

  •  Thank you (1+ / 0-)
    Recommended by:
    Justanothernyer

    For a balanced exploration of this troubling topic.  There certainly are no clear answers.

    I find the battlefield argument troubling, because the battlefield appears to be Earth.

    I would certainly be more comfortable if there were a mechanism to try the guy in absentia... I believe I heard that his father tried to get an injunction or something and was found without standing... very troubling.

    I would like to unwind the unilateral powers we have abdicated to the executive... I'm an Obama supporter, but worry when he (or a potential President Perry) have this kind of power unchecked.

  •  here are some considerations on the topic (0+ / 0-)

    http://www.juancole.com/...
    http://www.lawyersgunsmoneyblog.com/...

    It seems on Kos there are 2 extreme POVs and they will never be able to be reconciled as there is a complete lack of ability to even agree on basic definitions

  •  If we actually have any evidence (0+ / 0-)

    of his guilt, he should have been charged and tried right here in the U.S.  If convicted, then we could worry about how to detain or execute him.  Instead, they didn't even bother to pay lip service to the Constitution, and now they refuse to reveal the evidence that they claim to have.  

    There are many adjectives to describe those types of actions.  American is not one of them.

    "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

    by jlynne on Tue Oct 04, 2011 at 06:31:48 PM PDT

  •  When I think about (0+ / 0-)

    all the Americans killed due to the negligence or direct actions of our government, Al Awlaki falls close to the bottom of the list. I'm just not that worried about it.

    Part of me knows that I should worry about it, because of the broader implications, but I'm naively believing that the government would not assassinate an American who did not represent a genuine threat and who was not committing treason, for which there was ample evidence provided by Al Awlaki himself.

    Also, he could have turned himself in and received the fair trial to which he was entitled.

    The only difference between his summary execution and cases where an alleged criminal is killed during a standoff with police is that the danger Al Awlaki represented to his fellow Americans did not appear to be imminent.

    We Won't Let Republicans Replace Medicare with GOP Vouchercare!

    by CatM on Tue Oct 04, 2011 at 07:40:20 PM PDT

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