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How About Some Coverage of the Outrage? For That Matter, How About A Little Outrage?

[ 33 ] May 16, 2010 |

New York Times reporter Scott Shane “informed us” Friday of the “legal debate” over whether the US government has a right to target assassinate summarily execute its own citizens:

The notion that the government can, in effect, execute one of its own citizens far from a combat zone, with no judicial process and based on secret intelligence, makes some legal authorities deeply uneasy.

Some? Uneasy? Interestingly, Shane doesn’t bother to interview the “authorities” on human rights law and constitutional law who would be most “deeply uneasy” about these acts – experts at Human Rights Watch, the ACLU, or (say) New York University School of Law’s Project on Extrajudicial Executions. Instead he interviews – wait for it! – CIA lawyers and counter-terrorism officials, concluding with their last, fear-mongering words on the topic. And when describing the evidence to counter their positions, he treats such sources as The US Constitution as simply documents on one side of a debate:

Most significantly, he is an American, born in New Mexico, arguably protected by the Fifth Amendment’s guarantee not to be “deprived of life, liberty, or property, without due process of law.”

Arguably? When precisely is any US citizen not protected by the Fifth’ Amendment?

For someone covering a “legal debate,” Shane also seems terribly confused about international humanitarian law:

In a traditional war, anyone allied with the enemy, regardless of citizenship, is a legitimate target; German-Americans who fought with the Nazis in World War II were given no special treatment.

Here Shane confuses armed fighters engaged in hostilities alongside enemy forces (indeed lawful targets in conventional war) with civilians “allied” with the enemy. Since al-Awlaki’s role in the jihadist movement is primarily propagandist and inspirational, the closest WW2 analogy to al-Awlaki would be a US citizen who spoke out in favor of Nazi Germany during World War II or attempted to incite his or her countrymen to support the Nazi cause. Such individuals might be captured and detained or even tried for conspiracy or treason, but they’re not “combatants” in the legal sense and wouldn’t be “lawful targets” under the laws of war unless they were directly participating in hostilities.

It’s not just this one poorly researched article that misses the mark in fleshing out the parameters of the “debate” over whether a government can legally execute its citizens outside of a judicial process. Reactions to US plans to kill Anwar al-Awlaki without trial have paid much too little attention to the civil liberties implications of the policy. For example, Newsweek’s coverage last month focused on whether this will be an effective strategy or do more harm than good in combatting terror; BBC’s framed “the debate” in terms of the effects on stability in Yemen, rather than civil liberties at home. And as Julian Ku has noted way back in February, even the lefty blogs and commentators have been mostly silent on the constitutionality of summarily executing American citizens. Judging by the absence of attention to this issue on KO this past weekend, this pattern doesn’t seem to be changing.

Comments (33)

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  1. eb says:

    We are all Good Germans now, except American. I’d guess the reason you don’t see much outrage over the sheer unconstitutionality of arbitrary murder by state is because we’ve already been conditioned not to take such things seriously.

    For myself, I realized that I’m living in a lawless country after the Scalia court stole the 2000 election for Bush and the media, followed by the citizenry, just rolled over and saluted.

    That election provided a clear indication of who owned the place. And everything that’s happened since has just reinforced that signal, including the election of a president from the ostensible opposition party who, other than rhetorically, has opposed almost nothing his predecessor had done.

    So I’m not surprised the many decent people are subdued at this point. The situation just looks hopeless.

  2. DocAmazing says:

    So when someone nails a Goldman Sachs executive, can we call that a citizen’s arrest?

  3. Incontinentia Buttocks says:

    Broken record time: the key battle on this issue now is the Elena Kagan nomination. She might provide the fifth vote for this kind of abrogation of liberty and international law. We just don’t know. And until she can provide some assurance that she won’t, we should appose her confirmation and urge our Senators to vote “no.”

    The Bush years convinced me that things I thought could never be a part of our nation’s political life, such as open support for torture can, overnight, become not only acceptable, but practically required to enter the mainstream of elite political discussion.

    With apologies to Godwin, in 1932, nobody in Germany expected Auschwitz.

    A president claiming the unreviewable right to kill a U.S. citizen is the very essence of tyranny. Genocide is no more or less than the plural use of this “right.”

  4. TT says:

    I expect moral and legal insanity, as well as unrestrained anti-American joy in trashing the Constitution, from the party of Cheney, Addington, and Yoo. What I find utterly grotesque and contemptible is the Democrats’ cowardly, falling-all-over-themselves “me too” attitude in response to it.

    Coddling Wall Street from the get-go has been bad enough. But treating the Bill of Rights like so much toilet paper ranks as probably the single most compelling reason to vote against Obama in ’12. Except, of course, a President Pawlenty, a President Romney, or – in case we really are eternally damned – a President Palin, would be roughly a quadrillion times worse. I’m sure Obama’s counting on that sentiment to help put him over the top. Welcome to Rahmism.

  5. Bart says:

    Orwell called it; just a generation too soon.

  6. It would be helpful if people would stop substituting what they think the law is/should be for what the law actually is, especially in such broad terms.

  7. Also, the summary execution angle might make this the most inane thing I’ve read about this yet.

  8. BillCinSD says:

    what you don’t read your own posts Brien?

  9. Jeklythe says:

    How long will it be before an American citizen in Arizona is “summarily executed” for “terrorism” (as could be defined as part of the drug runners’ proactive violence along the border) as the result of being a suspected illegal immigrant?

    The difference in these fronts is only a matter of emphasis and rhetoric. With this precedent in place, what are the incentives for a GOP candidate/president to fire up the base by “protecting our border” in such ways?

    This may be the most slippery slope of all slippery slopes.

  10. Notorious P.A.T. says:

    Arguably? When precisely is any US citizen not protected by the Fifth’ Amendment?

    Hey, that’s American journalism–have to represent both sides. Do we have Constitutional rights? It’s not a reporter’s place to say. One side says A, the other says B. Print them both, a day’s work is done.

  11. JD Rhoades says:

    Let’s try a hypothetical. William Quantrill was a Confederate guerrilla operating against Unionists in Missouri. He killed hundreds, many of them civilians, and burned the town of Lawrence to the ground. The Union Army put out a “shoot to kill” order on Quantrill and all his men. He was killed from ambush by Union troops on June 6, 1865.

    War crime? Summary execution?

    He was an American citizen, although one who’d taken up arms against the US. He wasn’t in uniform. He wasn’t part of an organized army. He wasn’t on a battlefield. So, was he entitled to the protection of the Fifth amendment?

    Some people to whom I’ve put this hypothetical have argued that the difference is that Anwar al-Awlaki is a “only a propagandist.” But that argument then tacitly admits that if an American citizen does more than that, like Quantrill, then it IS okay to order his execution without trial. The question then becomes, not “can you order an American citizen killed without trial” but “under what circumstances.”

    So, again: shoot to kill order on notorious and brutal Confederate bushwhacker William Quantrill, resulting in his death.

    Crime?

    • Tom M says:

      No, active military engagement is hardly analogous to a presidential order to assassinate a terrorist. If Awlaki were killed in a battle, firefight or whatever type of engagement one could call it, he would then be similar to Quantrill.
      Had Quantrill been killed after his surrender, then you might have a point but he didn’t. Lee surrendered the Army of No. Va. in April but other units continued to fight until late June, 1865.

    • Anonymous says:

      C’mon the task of “whacking” Awlaki will likely be accomplished via Predator drone.
      He’ll be exiting a mosque or riding in a car or watching a video in his living room and suddenly KA-BOOM. He and whomever is within dozens of yards of him will become microscopic bits of bone, tissue and clothing.
      The drone operator is really just a high tech sniper of an American civilian who may or may not be a criminal as there has been no attempt at judicial procedure.
      Pretty sickening extra judicial recourse for a supposedly mature constitutionally based Democracy.
      The whole concept sounds Argentine military junta-ish to me.
      Keep on.

  12. JD Rhoades says:

    I’m concentrating more on the general order to shoot to kill, which would have mad it legal to kill Quantrill while he was sitting in camp.

    Crime?

  13. JD Rhoades says:

    Made, not mad. Sorry. And remember, Quantrill was shot from ambush.

    • Anonymous says:

      Like the combatant that he was, in the declared war that he was fighting.

      • JD Rhoades says:

        There was never a declaration of war against the CSA. They were a rebellion, remember? Not a State.

        So it’s okay to issue a a STK order against a combatant, then?

        • Hiram Hover says:

          I frankly don’t think the examples of the Civil War and William Quantrill are very useful here, but if you’re going to raise them, you might to at least get your facts correct.

          First, whatever the legal status of secession and the Confederacy, the US army treated regularly uniformed and organized Confederate soldiers as it would the soldiers of an enemy nation, but it made exceptions for “insurgents and guerrilla bands” engaged in “plunder and marauding.” Second, there was no shoot to kill order that specified Quantrill by name, as in the current situation; rather, there was a general order in 1862 that invoked a confusing array of precedents to assert that the “rules of civilized warfare” provided no authority to organize such bands, and thus that “every man who enlists in such an organization forfeits his life and becomes an outlaw. All [such] persons … will not, if captured, be treated as ordinary prisoners of war, but will be hung as robbers and murderers.” (All quotes from Halleck’s “outlaw” order of March 13, 1862.)

          Now, if there’s an argument you want to make about why that precedent is relevant to the current situation, please make it. But, please, no more rhetorical questions about it—ok?

          • JD Rhoades says:

            The point is, we’ve engaged in “extrajudicial killings” of American citizens before, if they were part of “insurgents and guerrilla bands.” You really don’t see the parallel here?

            The discussion of the al-Awlaki situation always starts with “It’s illegal to order the execution of American citizens without trial.” But then, when I point out that we’ve done it before, it quickly turns into “Well, al-Awlaki is just a propagandist, not a combatant,” which implies that it’s his status as a non-combatant, and not as a US citizen, that really bothers people. The implication, which no one seems to be willing to face, is that, in certain circumstances, it IS legally permissible to issue an order allowing the military to kill an American citizen without trial, if they’re engaged in rebellion against the US. We’ve done it before and no one’s said a word about it.

            But people get really testy when you point that out, as we see here.

            • Hiram Hover says:

              You’re simply wrong here about the history. Halleck’s outlaw order wasn’t premised on the justification that guerillas were “engaged in rebellion against the US.” Hundreds of thousands of Confederate soldiers did that and it wasn’t US policy to execute them without trial; instead, they were extended POW status. Guerrilla bands were excepted from that general policy when they were organized to engage in “plunder and marauding.”

              Whatever we think of the legal merits or justice of that policy as applied in the Civil War, it doesn’t really provide a precedent here–unless I missed the part where al-Awlaki was accused of being the leader of a band of horse thieves and cattle rustlers.

  14. herr doktor bimler says:

    Some of the arguments on this topic make a tacit concession that it’s OK for the US to murder people for making speeches on behalf of Al Qaeda, so long as`they’re not citizens. That kind of concerns me.

    Back in the days, the old Eastern Bloc dictatorships received a lot of bad press for sending hit squads around the world to murder their critics. Can’t see much difference.

  15. The US understanding of DPH is pretty wide. You are considered to be “DPH-ing” if you provide material (financial, food, logistics) but not otherwise participating. From this wide view, support and propaganda counts. This is what the US rests its arguments on for targeting the financiers of terrorism – and, apparently now, propagandists who are seen as, say, coaching the young to fight.

  16. herr doktor bimler says:

    In 1976 the Pinochet government in Chile arranged for the targetted killing of ex-ambassador Letelier, in Washington. He was a legitimate target, after all, actively propagandising against the Pinochet regime and organising financial sabotage against it. The death of Ronni Moffitt in the same car-bombing would count as collateral damage.

    Oddly enough the US government of the time did not buy the “legitimate target” argument, and brought murder charges.

    • JD Rhoades says:

      If Letelier had been actively financing and plotting bombings in Chile, would we have done the same?

      • Kurzleg says:

        Wouldn’t we have to regardless? There are alternatives to car bombing or killing in some other fashion someone doing such things. I don’t know whether or not it was practical for Chile to request US support in capturing Letelier, but that’s one alternative. Beyond that, this seems like a rule of law situation. The US can’t abide foreign governments executing their enemies on US soil.

  17. Anderson says:

    I had some questions on the “summary execution” thread, but this one seems livelier, so pardon me for quoting myself:

    If we’re targeting a meeting which we believe Osama bin Laden will attend, and our intel shows that al-Awlaki is likely to be there, I don’t think we have to cancel the attack because we might kill an American citizen. What seems to me prohibited is if we target the meeting because al-Awlaki is there. Right?

    Even then, however, what are the odds that al-Awlaki is not hanging on a regular basis with non-citizen terrorists, who could be “targeted” while al-Awlaki is “collateral damage”? Also legit? Or not?

  18. harkin says:

    I’m sure Woody Allen and Tom Friedman would approve. When you become a totalitarian state in the name of social justice you have to allow for a few liberties.

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