I vehemently disagree: You don't have to think that terrorists can be killed without judicial overview. I'm also willing to bet I'm not alone, and am curious about why you think the opposite.
I believe you have misinterpreted my objection. I do not object to the killing, I object to the killing without a non-executive legal authority looking over the case. Having a review process and strict bounds on the reasons for which he or she could/should be killed.
Let's say I (an American) am a self-proclaimed member of a terrorist or terrorist-affiliated organization (e.g. Al-Qaeda in the Islamic Maghreb). I produce bombmaking instructions for internet distribution, and repeatedly claim my intent to kill thousands of people. There is a request to have me killed should the opportunity arise, and I could not be otherwise captured. It is almost certain that a legal review process would come to the conclusion that I am indeed a reasonable threat, so on and so forth.
Let's say I (an American) am a self-proclaimed Prophet of the Great Gazoob, wielding a Pineapple and a Rubber Duck in mid-day traffic, and repeatedly claim my intent to kill thousands of people. There might be various grounds for legal action against me (state and municipal disturbance laws, maybe a few laws regarding making threats), but it would not include my death. A legal review process would hopefully not label me as being worthy of assassination should the opportunity arise.
Disclaimer: I realize I am dismissively using a caricature of a person of unsound mental state here. This is not meant to be an attack on such people, and is used for illustrative purposes.
There's a reasonable argument to be made that the AUMF in 2001 is too broad, but clearly, the intention is to declare the existence of a military conflict with Al Qaeda. The US has not, to my knowledge, declared war against Prophets of the Great Gazoob.
(The answer would be "the judicial branch", but funny how they're cut out of the equation.)
The unequal application of criterion for targeted assassination vs arrest-trial-conviction is what bothers me, from a constitutional standpoint.
Even disgustingly vile child molesters are afforded a trial. Why not try terrorists?
Doing so would be more in keeping with the ideals of the USA as opposed to the current "Empire Strikes Back" paradigm where the very foundations (right to trial, right to be secure in one's 'papers and effects,' innocent til proven guilty) of the USA are being sidestepped in the name of a "war on terror" which, in, and of, itself, is a form of terror.
Thus we have arrived at a point where the government regularly abrogates its mandate, and those who are against such acts may be labeled as "terrorists" whose demise is expedited by said policy.
It's an an answer to the question, how does one deal with an entity which does not subject itself to a set of groundrules one expects/operates in. In this case, you meet them half way (in vernacular terms, that's a good deal) for the offender (since their, AQ's, whole existence is predicated on vanquishing Kafirs).
The alternatives are you meet them in their terms adopting their groundrules for dealing with you (this is a strong position to work from), another is you deal with them as you deal with other entities with whom you have structured relationships (this is a weak position to work from) since they would not likely reciprocate.
A tax evader, you attempt to extradite, if you have agreements, if not, you try to get them when they make a mistake (fly into a place with a treaty). But when a nation is concerned with national security, there is less pussyfooting and more serious action, where possible. (i.e if AQ were based in China, the approach would require some rethinking or at least some negotiation with the host country.)
However, focusing on current technology, I think the scary part about these rules for airstrikes is:
- Suspected people can be killed without being told that they are wanted. This is made worse by the fact that the list of wanted people is not publicly available.
- Suspected people can be killed without being given the option of submitting to trial (no "stop or I'll shoot")
The above two items make airstrikes unpalatable for me. Thankfully they don't seem beyond remedy (perhaps version 2 of the drone shoots down a ball-and-chain + warrant before resorting to a missile), but in the mean time I find it very disturbing. If this was happening in America I would feel like America was over.
How about non-lethal chemical agents?
http://www.treasury.gov/ofac/downloads/t11sdn.pdf is a good proxy.
As for your other point, I'm no expert on the laws of war, but I don't believe one is required to abstain from acting against a legitimate enemy absent a reasonable possibility of taking them prisoner. This distinction is discussed in the white paper; it's against the laws of war to attack an enemy who you have taken into your confidence (eg agreed to meet under a flag of truce, or promised safe passage as one might to a plenipotentiary), but it's quite OK to ambush an enemy who is conducting their own operations against you.
As for the laws of war, I think they were created for situations where the opponents could be easily identified. (Opponents wearing a uniform for example).
Applying them to a situation where 'enemy' has a stochastic definition is a dubious thing. Of course it creates benefits, but it also creates a lot of problems. Killing people without due process, in the long run, creates an incredible amount of ill will. I think this, beyond rhetoric about justice, is the reason we have due process for criminal procedures -- the people who knew the innocent person you just killed get angry with you. Even if it was an accident. Note that this definition doesn't really effect two uniformed opponents on a battle field -- at least not in the same sense as "John was killed by a drone while driving to Texas for his vacation".
The other good argument for providing due process is that without due process you give a huge weapon to your enemy... as it becomes easier to frame someone, and as that framing becomes more deadly, it becomes easier to convert people to your cause through blackmail.
In summary: laws of war weren't handed down on a stone tablet, they codify a way of being that reduces the long term negative outcomes of war. When a new form of war is crated, you probably new new laws. The old ways of minimizing negative outcomes are probably obsolete.
I think you're assuming that due process and judicial process are the same thing, but I don't agree with this.
"We achieved our central goal … or have come very close to achieving our central goal, which is to de-capacitate al-Qaeda, to dismantle them, to make sure that they can’t attack us again." -Barack Obama (http://www.reuters.com/article/2013/01/12/us-obama-afghanist...)
Edit: My response made more sense before the parent edited their comment. Their original comment simply asked me to explain how mine was appropriate in the context of this discussion.
Interesting article about Japanese troops who were not aware of the surrender, or refused to recognize it: http://en.wikipedia.org/wiki/Japanese_holdout
So yes, I can see why such a response is necessary. I guess now the issue falls specifically on the wording of the issue. Terrorist can really mean anything and are we on a "slippery slope" where the President is being given power to assassinate any citizen he can label?
That wording is a bit of a recipe for endless war (as written a dozen years later).
In other words, consider soldiers on a battlefield. They do not need judicial approval to kill people they perceive to be enemies. However, they are not given a carte blanche to shoot anyone they wish, or use any means they wish. In cases of soldiers executing questionable judgement, there is a review after the fact.
Police officers are also given more leeway when it comes to killing people. I believe there is always some sort of review after the fact, but I don't think that investigation is the same as a court case (i.e. it may occur entirely within executive branch agencies.)
Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.
One difficulty comes with the definition of battlefield and war. If a battle makes it ok, what does that say about a war on terror, which appears to be perpetual?
> Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.
Another issue comes with the types of review. Whistleblowers are illegal and increasingly shut down. Declassification takes ages, and a Congressional review may never happen. When people talk about due process, they usually mean a process that will always happen, not one that is optional.
In any case, the threat of legal repercussions exists, and is likely enough to prevent US citizens from being assassinated arbitrarily.
Whoa whoa whoa, hold up there. Explain that bit to me.
These are very plainly executions.
As to why the memo was necessary, I see it as a memo limiting, not expanding executive power. The memo spells out when the Executive must treat an American member of a terrorist organization as a criminal, and not a military target.
Your reading of this memo is ludicrously generous.
Now yeah, everyone is saying that expecting people to arrest others in a military engagement is crazy... but what is happening here can hardly be called military engagements. These killings are not taking place in the heat of a firefight, they are meticulously planned with the sole objective of killing the target.
Any reasonable man outside a court of law would call these executions. Execution by missile, without a trial.
If not, then I would consider it an execution.
Did the sniper execute his target, or fire the first and only shot of a battle?
You could make the same argument about the use of snipers or bombers. As far back as the siege of Troy, there were arguments about whether the use of archery qualified as a legitimate form of combat since arrows could be shot from beyond the range of normal hand-to-hand combat.
There is no legal requirement that military engagement be limited to pitched battle or that combatants must meet in the field on equal terms. An interesting historical example (that I may have suggested you read up on before) is the ambush on Admiral Yamamamoto during WW2.
I am well aware of Yamamoto's killing. Allow me to refer you to the killing of Herberts Cukurs.
Of course, that's the way of all wars. Drone killings are alien to us and thus easy to fret about, but far worse things happen when you put troops on the ground. Scared teenagers have done far worse in good faith efforts to take down well-conceived targets than drones are likely ever to do.
You'd hope that people would take away the right lesson from this; not "US citizenship is a sacred talisman of safety in war zones", but that we shouldn't be declaring idiotic wars against enemies that almost by definition can't be "defeated".
Killings outside of what could reasonably be considered a warzone continues to concerns me, American or otherwise (though American particularly, if I am honest).
I'd like you to consider the possibility that some questions are not easily justiciable (that is, decidable by the judiciary), and this is why the Supreme Court sometimes declines to take up an issue on the grounds that it is a 'political question'; one for which there are no clear legal rules and the matter must ultimately be left to the approval of the citizenry via the electoral process.
I am well aware of Yamamoto's killing. Allow me to refer you to the killing of Herberts Cukurs.
But this exemplifies what's wrong with your argument. Cukurs was killed because of something he was judged to have don ein the past. There was no question of his attempting to continue his Holocaust-era activities. Al-Awlaki, by contrast, was actively fomenting war against the US by his own public statements.
We will someday answer for the evil we currently perpetuate in Afghanistan. If we are moral, we will be the ones holding ourselves to task for it. I doubt that we are of sufficient fiber.
I'm not saying that I agree with the reasoning in this particular document, just that I think it's reasonable to believe that modern terrorist groups are a new flavor of threat and may require new legal frameworks to address them.
Cells don't just "form" from thin air. There are people with ideas, people who coordinate, the hands behind the organization, the financiers. Kind of like a crime syndicate. There are foot soldiers, capos, consiglieri and bosses and boss of bosses.
I would say, you watch the organization, follow the trails of financing, ideas, commands, etc. While it's cell-based, like biological cells, they are conected to a larger organism, albeit they can act independently when necessary.
We certainly aren't treating them as Prisoners of War when they are captured.
Draw me a bright line. Or, hell, even a dim, wiggly one.
Did I miss anything?
There are no checks and balances here. The US intelligence apparatus has justified killing its own citizens without judicial or legislative oversight, at the sole discretion of the executive.
As uncomfortable as it may be to point out, that is fascism.
In other words, authoritative governments indiscriminately killing people, while not good, is not a defining measure of fascism. In more broad terms, "things that I think are evil" are not either.
ie, all men are mortal, but not all mortals are men.
words have meaning.
So how do you translate that to fighting Al Qaeda and other terrorist groups? Not so easy. But the obvious way is to treat them as enemy soldiers in a conventional war.
in a drone strike you kill a supposed enemy combatant who at the time of the strike may not be armed, or may not be involved in an armed conflict. For example, the alleged terrorist is driving in an SUV. In this case, the 1949 Geneva conventions might call this a crime (the US denies this AFAIK):
>Modern laws of war regarding conduct during war (jus in bello), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other distinctive signs visible at a distance, and the carrying of weapons openly. [1]
Of course, terrorists don't listen to these rules either, by not wearing any uniform, they don't have any.
It's something a lot of people rightfully disagree with.
1. Authorization for Use of Military Force, SJ Resolution 23 http://news.findlaw.com/hdocs/docs/terrorism/sjres23.enr.htm...
The framers were extraordinarily clear on this. You're exactly wrong.
Every time you think that some power must obviously be invested in the judicial system, remember to run the sanity check: nobody elects the judicial system. They're accountable to nobody. The framers did not want our country governed by philosopher kings.
I don't think this leg of the conversation has much to do with the issue at hand --- if there's one thing the Constitution is extraordinarily clear about, it's that the Executive commands the military, and DOJ's reasoning regarding drone strikes depends on their military nature --- but I'm in the middle of _Democracy and Distrust_ right now, and maybe it gets clearer later in the book but the impression I get is that "Due Process" is anything but clear and simple.
It's my view that the pursuit of military objectives is very much the province of the executive, and that the elimination of Anwar Al-Awlaki was an entirely legitimate military objective since Al-Awlaki was (at the least) involved in rallying supporters to his cause and exhorting them to kill Americans, and arguably directly involved in the planning and authorization of such operations, exactly the sort of threats the Executive branch is responsible for addressing.
The question here is: what process is due when an American leaves the country and takes up arms against the US. It's reasonable to say that they aren't entitled to full judicial process, but they are clearly entitled to something.
Of course, Privileges and Immunities is also a weird zombie clause.
I don't think that's clearly the case, although it certainly could be argued to be so.
I believe that if you're willing to let your government kill terrorists without a trial, there should not be exemptions based on where you were born. Americans should not be exempted.
Whether the government should or should not target these people is the real question.
If this is a war, then sure. But the enemy (terrorists) should be considered enemy combatants within an army - a militia. Then all the rules of warfare should apply.
What about (people labelled as) terrorists who happen to be American residents?