Bang Bang Shoot Shoot

[solarbird]

President Obama has ordered the assassination of Anwar al-Awlaki, an American citizen born in New Mexico. This is further than the Bush administration actually went, which had stopped - as far as we know - at arresting, torturing, and holding American citizens born on American soil indefinitely. Greenwald, as usual:

No due process is accorded. No charges or trials are necessary. No evidence is offered, nor any opportunity for him to deny these accusations (which he has done vehemently through his family). None of that.

Instead, in Barack Obama's America, the way guilt is determined for American citizens -- and a death penalty imposed -- is that the President, like the King he thinks he is, secretly decrees someone's guilt as a Terrorist. He then dispatches his aides to run to America's newspapers -- cowardly hiding behind the shield of anonymity which they're granted -- to proclaim that the Guilty One shall be killed on sight because the Leader has decreed him to be a Terrorist. It is simply asserted that Awlaki has converted from a cleric who expresses anti-American views and advocates attacks on American military targets (advocacy which happens to be Constitutionally protected) to Actual Terrorist "involved in plots." These newspapers then print this Executive Verdict with no questioning, no opposition, no investigation, no refutation as to its truth. And the punishment is thus decreed: this American citizen will now be murdered by the CIA because Barack Obama has ordered that it be done. What kind of person could possibly justify this or think that this is a legitimate government power?

This embracing of Bush-era radicalism in executive power became sadly predictable before the election, and was particularly obvious with then-Senator Obama's 180-degree turn in voting for both retroactive immunity for clear and indisputable lawbreaking in domestic warrantless spying by the US government and telecommunications companies on Americans, and the forward legalisation of this process. (Legal, at least, insofar as something so blatantly against the black letter law of the Constitution can be called legal.) This is crazy illegal too:

The full Hamdi Court held that at least some due process was required before Americans could be imprisoned as "enemy combatants." Yet now, Barack Obama is claiming the right not merely to imprison, but to assassinate far from any battlefield, American citizens with no due process of any kind.

...but that won't matter. There is no law.

Comments

[pentane.livejournal.com]

had stopped - as far as we know - at arresting, torturing, and holding American citizens born on American soil indefinitely.

I was going to reference Jose Padilla but they eventually tried him.

We shot German-Americans born in the US, didn't we?

[bruce9999999.livejournal.com]

Can't say I like to hear this, but I'd like to hear why it's different from WWII stuff.

Re: We shot German-Americans born in the US, didn't we?

[loopback.livejournal.com]

just a few things off the top of my head:

* the German-Americans Born In the US were in the uniform of an army of a specific nation.

* they were not targeted by name, they were engaged in a specific battle as part of the soldiery of the country they were fighting on behalf of.

* there was a declaration of war between the two nations, and the various conventions of Civilized Warfare (mostly) applied.

I mean, you do get the difference between "two armies shooting each other" and "the federal government deciding it has the power to say "kill this specific US citizen", right? I'm hard pressed to think of in what ways this is anything like ww2. at all.

Re: We shot German-Americans born in the US, didn't we?

[bruce9999999.livejournal.com]

>in the army of a specific nation.
Not America's fault al Qaida fights out of uniform.

>not targeted by name. Lord Haw-Haw? But they did give him a trial. I'd give you this one.

> a declaration of war between two nations-
Bin Laden has given us a chance to convert to Islam. On his side, he's done right by the formalities. For us, Bush and Obama have both formally stated, with the support of Congress some kind of declaration of intent. It's not a formal declaration of war against an enemy nation because Bin Laden et al are not a nation. A movement and an organization, but not a nation.

>the various conventions of Civilized Warfare (mostly) applied.
a couple land wars in Asia, the Holocaust, the Eastern Front, and quite some else are enclosed by that (mostly). And yet, this IS a less civilized conflict, less bound by rules either side recognizes, more vicious (in part) because the stakes are smaller.

I mean, you do get the similarities as well as the differences? Because if you can't you aren't likely to come up with a better option than Obama or Bush.

Re: We shot German-Americans born in the US, didn't we?

[loopback.livejournal.com]

solarbird already covered everything, but my short and less interesting rebuttal:

no, there really aren't any similarities between the two. Seriously. If you think there are, you're lying to yourself or to others.

Re: We shot German-Americans born in the US, didn't we?

[solarbird]

I've provided rather extensive commentary to the original commenter; if you're still interested in this topic, you might wish to look at it.

Re: We shot German-Americans born in the US, didn't we?

[solarbird]

Okay. Let's look at the two cases. I want to look at three parts separately.

First, let's look at evidence:

Anwar al-Awlaki (henceforth "This guy"): the administration declares him a terrorist; there is no evidence. Seriously, none. None is required, under this legal theory, so it doesn't matter whether there actually is any; if there is any, then it's secret, which is functionally identical to no evidence from a use-of-power standpoint. The executive declares him a terrorist. That's all that's needed and all that's provided. Done.

An American serving in the German army in World War II (henceforth "Bert"): In plain view and fact, we have a person - regardless of nationality, really - serving a nation-state with which we are in a state of declared war. The person involved is actively involved in clear hostilities, which is also in plain view and fact. The person is in uniform, identifying them as a combatant. He's probably deployed, which is to say, in a reasonably-well-defined battlefield, which is also clear and open evidence. The evidence is available and obvious.

These are very clearly different evidentiary situations. This Guy - or, really, any target designate - is not clearly involved in anything. He might be! But we don't know. He's not in a theatre of war, unless you accept the Bush administration theory - as Mr. Obama does - that the entire world is the theatre. (Before you say, "well, it is!" do you really want battlefield rules for everybody to be the new normal? Think about that real hard before you say yes.) The external evidence is not present; the presented evidence is non-existent, in contrast to Bert, the American fighting in the German army.

Now, let's look at state of action:

This Guy: Sitting in a house in Yemen somewhere, a country with whom the US is not at war. Maybe involved in something, but we don't know! There's no evidence for it (see above), so the evidence is that he hates the US and says so. He might become engaged in some way at some future date. We don't know.

Bert: Actively engaged in hostilities in an ongoing fashion. Probably deployed. (See above.) Even if in barracks, in a state of war, that's still considered an active hostile target, because deployment is quick and because he's ready to be deployed in a clear and obvious way.

One might compare This Guy to Little Bert or Old Bert - an American, pro-Nazi, male, age 15, or age 43. Outside the range of service, but could be made active. Could become active in short order, even. But we don't target those in general - in fact, he's called a noncombatant, and targeting him is a war crime.

I note as a side issue that I would have no problems with someone shooting the man while in the process of hostile action. That is an important state of action difference. But that's not clearly the case.

[Continued in next comment]

Re: We shot German-Americans born in the US, didn't we?

[solarbird]

Finally, let's look at intended disposition:

This Guy: Execution, at first and best opportunity, anywhere possible.

Bert: Until and unless tried for treason - particular emphasis on tried - he's treated like any other member of the German army. Let's dig in to that a bit: the goal of warring armies of these sorts is not "kill all the enemy." It's specifically not that. The goal is to force back enemy forces and capture military objectives. In fact, from a toll-of-battle standpoint, wounding is far preferable to killing, because it drains more resources from the opposing side than outright killing the soldier. Ideally, you want them badly wounded and taken away to medical care by the opposing side; that's the best outcome. Second best is capture; manpower is removed, hopefully in large numbers. You want surrender.

You can further see this to be the case in that if enemy soldiers are captured, we don't proceed to kill all of them. That would also be a war crime. Even Bert would not be summarily executed, as the American citizen Anwar al-Awlaki will be if they find him. Instead, Bert would be tried, in a court. And then probably executed for treason if the evidence supports it. (And it probably would.) And if that's what happens, so be it.

He'd get what is at least in theory a fair trial, which is the opposite of what's happening here.

You commented further down:

Not America's fault al Qaida fights out of uniform.

This is functionally identical to:

Not America's fault there's no evidence.

Is that really the position you want to take?

So, really, you have three differences, all of which are critical:

1. Evidence ("none" vs. "clear")
2. State of action ("apparently inactive" vs. "actively engaged in hostile action")
3. Disposition, or intent ("kill" vs. "force back")

If you want to make the argument that none of these matter, then there is, in fact, no reason whatsoever to oppose arbitrary power of execution by the executive. That's the argument the Bush administration made, and which the Obama administration is functionally taking; they're just saying that they'll do a better job of it. Given that this war is definitionally without either physically or temporal boundary - it is, in fact, the new normal - I think it is clear that there is very little way this does not lead to tyranny. These powers always corrupt; always.

Don't shoot Yammamoto! We owe him a trial!

[bruce9999999.livejournal.com]

Why didn't we give Yammamoto a fair trial? Because it was war. (When I think WWII, I think 'horrible total war', not 'Band of Brothers'. Hope that doesn't cause extra misunderstandings).

When I see Obama ordering an enemy's death, I assume it's an order to kill an enemy in war (declared, undeclared; tomato, tomato).
Or I'm wrong, and 'this guy' is sitting in a cell, completely harmless, available for the full machinery of justice to grind its mills as slow as it wants, but Obama's bloodlust kicked in.


Oh, and 'this is functionally equivalent to' the straw man of your choice? You're better than this, Solarbird. I said 'out of uniform' because I meant 'guys shooting guns, not wearing uniforms'. Assassins, under the laws of war. It is, of course, America's fault when we kill people without evidence.

And I'm with you on 'these powers always corrupt, always'. Years ago I read Dean Ing's 'watch out for those mosquitoes!' and my spine crawled.

Re: Don't shoot Yammamoto! We owe him a trial!

[solarbird]

Why didn't we give Yammamoto a fair trial? Because it was war.
...Isoroku Yamamoto? The architect of Pearl Harbour, shot down in the field of battle in 1943? Are you trying to insult me, or bait me? Because I presume you're not stupid, and I already gave you a reasonably literate 900 word reply (my pro rate is around $1.25/word, btw) breaking down the differences, as I see them, in reasonably simple terms, between the cases you laid out. And this case is even further out from your last strawman (which I called "Bert"), and, quite frankly, the complete lack of respect you show here for my efforts leads me to think you were simply asking in bad faith, and that I erred in my assessment of your question, mistaking it for genuine.

If you sincerely don't understand any difference between the two cases, then there is absolutely no reason for you to oppose the idea that a political leader should be able to order the assassination of anyone, anywhere, on their word - which is the legal theory being executed here. As you say, "I assume it's an order to kill an enemy in war (declared, undeclared; tomato, tomato)." The justice of the situation - not to mention the Constitutionality of the question - is clearly irrelevant to you. From what I am reading here, you appear to choose to trust an executive with this kind of unfettered, unrestricted power. "BUT WE'RE AT WARRRRRRRRRRRR!!!! (declared, undeclared; tomato, tomato)" is apparently all you need to hand over any right or power.

All I can say to that is that it was completely obvious to anyone who even offers a cursory glance at the proceedings under this theory for the last decade that this trust is not warranted, including the Iraq war itself. In that case in particular, it was patently obvious to anyone actually looking at the data that Iraq not only had no modern functional WMD programme, they could have no modern functional modern WMD programme. It was also patently obvious to anyone actually looking at the negotiations that there was no attempt whatsoever to allow the Hussain government avoid the war; the US was following the Austria-Hungarian plan against Serbia in 1914! The conditions the US government set were literally impossible to meet, and you can't tell me they weren't intentionally so, because the pattern was far too classic.

And yes, I fucking well said so to anyone who would listen at the time. I got absolutely nowhere with a lot of arguments at the time, and most of those people don't talk to me anymore, because I was right. I was right because math, unlike politicians, doesn't lie.

'this is functionally equivalent to' the straw man of your choice? You're better than this, Solarbird
It's all the response a snit like "Not America's fault al Qaida fights out of uniform." deserves.

[arjache.livejournal.com]

Something I got bogged down in thinking about when I read this earlier: Before the "enemy combatant" policy, how did the CIA ever even justify assassinating non-citizens outside of specific war contexts? Wouldn't that have been a violation of due process as interpreted at the time?

[solarbird]

This was something I followed for quite a while, actually. Things started getting a little, how do you say, problematic when the drug war led the Supreme Court to rule that US Constitutional protections didn't constrain agents of the government generally, but only in special regions, where the US government had ultimate sovereignty.

[l33tminion]

The thing is, I have a hard time getting more worked up because it's an American citizen. If blowing up someone in their house because we suspect they're a terrorist is morally unjustified or counterproductive, that applies whether they were born in the States or not. It seems certain to me that if we have this policy of blowing up suspected terrorists (in places where capture is impractical or impossible), we shouldn't hold back from the one we believe to be most dangerous because he happened to be born in America.

Personally, I think the policy of targeted assassinations is morally untenable and counterproductive. But I would have been really surprised if Obama changed that. For politicians, the real nightmare scenario is another terrorist attack in which it was later revealed that the US could have blown up one of the suspect years ago but didn't. "Due process" and "collateral damage" and "killing that guy and his family might motivate a whole bunch of other people to become terrorists" don't stand up against "weak on terror".

[solarbird]

All true. However, there is a significant legal difference - and always has been across all countries, this isn't unique to the US - and this is yet another significant line that is being crossed, as a result. These things matter.

[l33tminion]

Yeah. I think the fact that Obama specifically is going farther than Bush in this regard is a coincidence of timing, I'd expect McCain or Bush or Clinton or any US President or serious presidential contender for the past few decades to have done the same if placed in the same position. I don't think Bush held back from ordering assassinations of American citizens on legal/moral grounds, I just think he was never told "this guy is dangerous terrorist number one, he's an American citizen, and we can't easily capture him but might be in a position to kill him". Bush administration officials in response to this story were quick to say that the targeting of American citizens for assassination didn't happen, but they weren't so quick to say it wouldn't have or shouldn't. That is to say, I'm disappointed, but not surprised.

I'll be curious to see what the Supreme Court has to say if they get the chance to weigh in on it.

(Again? I saw references to Hamdi v. Rumsfeld (2004; that was about indefinite detention of a US citizen, not assassination, but right amendment and right clause) and Ex parte Quirin (1942; which had to do with the trial of saboteurs (including a US citizen) by military tribunal, so a different clause of the Fifth Amendment), though the latter appears to have been largely overturned (with regard to the "War on Terror") by Hamdan v. Rumsfeld (2006). Has the Supreme Court ruled on the policy of "targeted killings" specifically?)