The death of Anwar al Awlaki by a predator drone strike last week has sparked a heated debate about the legality of the act. Constitutional bloggers are hysterically claiming that the president has set a precedent of murdering United States citizens without a shred of due process, and even republican candidate Ron Paul has stated that Obama should be impeached for this “assassination”.
The problem with all of these arguments is that they are confusing wartime actions with peacetime law enforcement. The two are not the same. Before I continue, I’ll say up front that I consider fighting Islamic extremism to be a war. We have the same intent as any war we have fought in the past, but it’s different in character because we now oppose a global sub-state phenomena, not a state we can officially declare war against. I’m not alone in this belief either. It has been the official U.S. stance since 9/11, which is why the terrorists at GITMO will be tried by military tribunal instead of civilian courts. If that weren’t enough, al Qaida themselves certainly consider it a war, and have said so on numerous occasions.
Prior to 9/11, we treated all terrorist actions as individual crimes, and in some cases, that was correct, given the circumstances. In the case of al Qaida, it was not. The line is not black and white, and I’m not saying we should send the next Timothy McVeigh or D.C. sniper to GITMO in a knee-jerk reaction, but there is a line. It was easier to discern in World War II, no doubt, but we dealt with such issues even in that era. In 1942 two German saboteur teams infiltrated America with the intent of destroying U.S. industrial infrastructure. They were caught by the FBI, and Roosevelt wrangled with the decision of whether to try them in federal or military court. In the end, he chose a military tribunal, the first on American soil since the Lincoln assassination. The story itself is fascinating, and if you changed the names and dates, reads almost like a modern day terrorist plot, complete with mistakes and turncoats we see in modern day terrorists that allowed us to unravel the conspiracy.
One of the arguments made against a claim of wartime powers is precisely that we haven’t declared war, thus there is no legal basis for invoking them. Al-Awlaki’s death occurred within a state with which we weren’t “at war”, and is therefore illegal. This is a little specious, as the constitutional framework for a formal declaration of war is designed for state-on-state violence. Al Qaida is not a state, and thus it’s hard to formally declare war against them in accordance with the constitution. Congress did recognize the dilemma and drafted a joint resolution shortly after 9/11 that stated,
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
It was signed into law on September 14th, 2001, and is the justification that the Obama administration used for targeting al –Awlaki. (in a shameless plug, it’s also what generated the title for my next book, All Necessary Force, out January 17th. Pre-order now on the link to the right. Okay, back to the blog.)
Given that we are at war with al Qaida, the rules of engagement change drastically from peace-time law enforcement. International law states there are two major divisions in conflict: Combatants and Non-combatants. The first you may attack at will. The second you may not attack at all. The only protection afforded a combatant is if he or she is attempting to surrender, or is physically incapable of fighting – IE wounded or otherwise incapacitated. Other than that, you can shoot, bomb or stab them all you want. Note that, in accordance with the law of land warfare, you don’t have to afford them the opportunity to surrender. You just can’t attack them after they have stated they wish to do so. In other words, a soldier doesn’t need to scream, “Surrender or I shoot!” on the battlefield. He simply shoots. This is why an ambush is a perfectly legitimate tactic, defined by the army as “a surprise attack from a concealed location on a moving or temporarily halted target.” It’s also why a drone attack, merely a form of ambush, is also legal – provided the target is a legal combatant.
Herein lies the rub. What constitutes a “combatant”? A soldier in uniform is easy, but combatant extends further. A civilian whose primary job is building tanks is also a combatant. Simply because he happens to be working does not afford the factory protection as harboring non-combatants. He’s aiding the war effort, and has become a legal target. Note that the term “civilian” and “non-combatant” are not the same.
This is the crux of the breakdown in the al-Awlaki argument. Nobody is arguing that al-Awlaki was a good guy. Nobody states he wasn’t helping al Qaida. Simply that he was a U.S. citizen and therefore should be considered differently from the Taliban we kill in Pakistani drone strikes. But U.S. citizenship doesn’t protect you if you materially conspire to harm our nation. Period. It has nothing to do with indictments, the 5th amendment, renouncing citizenship, or any other thin legal wrangling. It is what it is. In a time of war, if you choose to help the enemy, you become a combatant. You are afforded the same protections as any other combatant, namely that you’ll be treated well when you surrender, but you don’t get extra protection simply because you had the good fortune to be born on American soil. Once again, World War II provides an example. There are multiple instances where U.S. citizens of German heritage fought against the United States. At least eight were killed on the battlefield fighting for the Waffen SS. None were given special consideration because of their citizenship. At the furthest extreme of the argument, Lincoln should have been impeached immediately at the conclusion of the Civil War because he had slaughtered hundreds of thousands of U.S. citizens. Not a one of them were afforded “due process” or charged with a crime.
One variation of the “good guy” argument is that al Awlaki was simply proselytizing, and while his statements were harmful to the United States, as an American citizen, his speech was protected by the first amendment. While I find that argument extremely naïve, once again, there is precedent in WWII. Mildred Elizabeth Gillars was an American citizen of German descent. She was known as “Axis Sally”, and broadcast propaganda on the radio in the European theater of operations. She was arrested after the war and convicted of treason. But why? Surely she was protected by the first amendment! Nope. The court found she had materially aided the enemy, and had become a combatant. Just like al Awlaki. It was just her good luck she wasn’t killed during the fighting.
One issue that has generated a lot of attention is the so-called “kill list” that exists. To read Reuters explanation, one would think there’s a secret cabal of men, hidden in the shadows deep in a back room of Old Executive Office building, unaccountable to the legislative branch, and selecting targets for execution. Hey! It’s the Oversight Council! I knew those bastards existed! Guess I can’t write about them anymore as fiction, since it’s now come to light.
Not really. In fact, the “targeting list” is simply an extension of the argument above. Determining combatants in state-on-state violence is fairly easy. Against a sub-state threat, precisely because the enemy hides within the non-combatant community, using the protections afforded non-combatants, it’s much harder to determine. This is where the “secretive” targeting list comes in. It’s not a “kill” list. It’s simply a collection of designated combatants. The analysts aren’t trying to determine if someone “deserves to die”. They’re simply trying to determine if Abu X is a terrorist or not. When the preponderance of evidence shows he’s aiding al Qaida, he becomes a combatant, and is added to the list.
Far from being a bad thing, the list is a very, very good thing, as its existence shows how far the United States goes to protect non-combatants. That secretive cabal of men isn’t deciding who gets to die. They’re actually there as a check to ensure the guy is a combatant before he’s put on the list. They want to see the proof, even after about 8,000 CIA, FBI, and DIA workers have analyzed it. If the evidence measures up, the man becomes a legal combatant. As such, he may be attacked in any manner that’s legal by international law, including drone strikes. Make no mistake, however, we would much, much rather capture the terrorist than kill him outright, precisely because the data-base is chock-full of facebook like blank pictures, where we know someone’s doing operational work, but we don’t know who that is. A captured terrorist helps fill in the blanks, putting more names against the faces.
In the end, there’s no doubt al-Awlaki was materially helping al Qaida, from 9/11 to the underwear bomber. He was a legal combatant, and he was legally killed. Would we have preferred to capture him? Of course, but that was impossible given the operating environment. The call was a good one, and it was not a precursor of the future “murder” of U.S. citizens. You don’t need to worry about predator drones circling your house, unless your house is a mud-hut in Somalia and you’re planning on blowing up a U.S. embassy.
Anwar Awlaki and his death should have sent a message of zero tolerance. But we failed that part of the mission.
Our extreme levels of tolerance, our inability to stand up for ourselves in the face of the public eye and face the criticism for defending our nation interrupted this.
Just a few days before the strike, he (Anwar) alludes to the fact that Media is part of the Jihad. He was a self-proclaimed enemy of this country operating in a lawless area in order to radicalize others. He was committed to the destruction and death of Americans.
At what point do we give up our rights? Recently two other events highlight an abuse of our “Rights”
The Gentlemen (terrorist) who was apprehended for the attempted remote controlled aircrafts laden with explosives attacks on the Capital and the Pentagon (where are his Six Gun men?) Rezwan Ferdaus was arrested in Framingham, Massachusetts, after undercover federal agents delivered materials he had allegedly requested, including grenades, six machine guns and what he believed was 24 pounds of C-4 explosive.
Or the wife of (Narco terrorist) ELChalpo Guzman, His wife a 22-year-old former beauty queen (at least a knowing partner) , holds U.S. citizenship, which entitles her to travel freely to the U.S. and to use its hospitals. By being born in California, her little girls now also have U.S. citizenship.
Guzman, 54, the multibillionaire fugitive head of the Sinaloa cartel, married Coronel the day she turned 18 at a lavish wedding in the highlands of central Mexico in 2007. She is believed to be his third or fourth wife and is a niece of Ignacio “Nacho” Coronel, a one-time partner of Guzman who was killed in July 2010 in a shootout with the Mexican army.
U.S. federal agents apparently kept tabs on Emma Coronel even before she crossed the border at Calexico, through her hospital stay and until she left the country to return to Mexico. Although her husband tops most-wanted lists on both sides of the border, Coronel was not arrested because there are no charges against her, the law enforcement official said. No waste of time or money here.
All of these are enemies of this nation and should be targeted as such.
If you ride with an outlaw you should be hung as one. ” We need a little old school justice..
“The problem with all of these arguments is that they are confusing wartime actions with peacetime law enforcement. ”
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So because of the Proven false-flag Op on 9/11 we are at war indefinitely? When does it end? When we finish gaining control over the middle east? How many women & kids need to be bombed? Before this so called war is over? I believe it’s over a million(1,000,000) people so far. How many will suffice? How high to you want to stack the bodies?
Afghanistan’s #1 and # 2 exports are oil & poppy…….. any questions?
The perfect war is one with no clear enemy, because it never ends.
Come on man, even the kids protesting in the streets know this is all propaganda.
http://www.youtube.com/watch?feature=player_embedded&v=6yrT-0Xbrn4
http://gokill.com/2011/10/05/occupy-wall-street-demands-real-911-investigation/
Turn off the TV for Gods sakes and educate yourself in reality….
Your article reads like fox news….
If 9/11 is a Lie then what does that make the so called war? a lie… and All deaths perpetuated by this lie are murders….
$400 billion spent on that lie just this year… That could have housed and fed a whole lot of folks..
wake up…
In the interests of fair play, against my better judgement, I’m approving go.kill’s comment. I get a lot of over-the-top right wing stuff that I don’t approve, but I’ll let this left-wing one go. Once. I feel sort of responsible for bringing it on, since the second link in my article about hysterical screaming over al Awlaki’s death is from the owner’s website. I guess Google Alerts really work. Of course, I’ll have to respond.
1) 9/11 is a “proven false-flag” operation? A) I love it when arm-chair conspiracy theorists use military and intelligence terminology, like they have ever once done anything remotely along the lines of what they’re describing. For the average reader – a “false flag” operation is one in which the friendly side purposely does something harmful to itself, then blames it on the other side. IE – we dropped the towers. B) Popular Mechanics did a scientific study on every single 9/11 conspiracy out there, and debunked them all. Here’s the link: http://www.popularmechanics.com/technology/engineering/architecture/911-myths. Of course, since they did so, they’ll just end up inside the conspiracy.
2) Afghanistan’s #1 export is oil? I guess we don’t have to worry about opium being # 2, since Afghanistan has exported exactly zero (0) barrels of oil in the last ten years. http://www.indexmundi.com/g/r.aspx?c=af&v=95. Talk about educating yourself in reality. Maybe you should quit believing the propaganda of others.
3) The perfect war is one that doesn’t exist. Nobody whose ever fought wants a never-ending war. Give me a perfect black and white enemy any day. The only person who would make such a comment is someone who has never seen the sacrifice.
Don’t bother responding to this. I have no desire to debate anyone loony enough to believe 9/11 was perpetrated by the United States. It’s like wrestling a pig. No matter if I win, I’ll still get muddy. On top of that, I have to stick with my rule: One post per nut-job.
In the interests of fair play, I have to protest your characterization of this post as over-the-top left wing stuff. I heartily agree that it is over-the-top, but I disagree that it is either obviously or inherently left wing.
I agree with your denunciation of the “idea” that 9/11 is a “proven false-flag” operation. I agree that Afghani oil was not a war aim of that adventure. I agree that soldiers do not want a never-ending war or a shadowy enemy. I even agree with the premise of your article. I agree that neither President Obama — nor anyone else in our government or military — should be impeached or prosecuted for this “assassination.”
I do not agree that Congress need never, ever, declare a war. I do not agree with your idea that it is difficult to formally declare war against a stateless organization “in accordance with the constitution.” It would have been quite easy to draft a resolution of war against Al Qaida, or Afghanistan, or Iraq. There is no excuse for Congress to have abdicated its responsibility in this regard. While I do not agree with Ron Paul on all issues (I likely would not vote for him), he is correct that Congress is not asking the right questions or honoring its duties and responsibilities.
We should all be concerned with expedient measures undertaken by our government which circumvent or avoid analysis or existing legal safeguards. The right wing is famously concerned (even, apoplectic) over the expansion of the federal government in economic spheres. The right wing argues that the Constitution has been distorted to support this expansion. Should not the same analysis apply to the expansion of bureaucratic and military authority over American citizens in clear contravention of the Constitution?
I think your analysis provides a defensible outline for waging war against these combatants. What has caused people on both the right (Ron Paul) and the left to question the expansion of bureaucratic and military authority is the radical policy change from one of non-torture to use and defense of torture. Seemingly ironically, I admit to being less concerned about the killing of those self-declared enemies of the American people than about the torture of those self-declared enemies of the American people and others merely accused of being enemies of the American people. Some of us well recall when what was called “Chinese Water Torture” was used to brainwash our troops in Korea and to elicit from them the most fanciful “confessions” and treasonous declarations. These troops were not, in fact, crazy or disloyal and their statements under torture were unreliable and ludicrous. Now that we have renamed “Chinese Water Torture” as “waterboarding” and classified torture as “enhanced interrogation,” we are condemned by our very own indictments and condemnations at Nuremburg.
I consider myself to be middle of the road, neither liberal nor conservative, nor a member of any political party. Concern for this country, its adherence to its ideal, principles and laws is a sentiment or political position which is shared by both left and right wings of the spectrum – and everything in-between. Thoughtful posts such as yours need not take a side of the spectrum, or demonize those with other opinions. John Stuart Mill said, “The worst offense that can be committed by a polemic is to stigmatize those who hold a contrary opinion as bad and immoral men.”
Thank you for the comments. A little defense of myself first. As you state, my posts don’t need to take sides, and I try very hard not to. I would never stigmatize or demonize someone with a true opinion. Loony talk, on the other hand, tends to get me going. For instance, I have had several people submit comments “proving” that all muslims are pedophiles, etc, and I simply delete them. Saying 9/11 was caused by America is not an opinion. It’s loony, and no different than saying the earth is flat or gravity doesn’t exist. Given the sacrifices my family and I have made because of that day, I get more emotional than I otherwise would. I guess I labeled it left-wing because I have been on his website and the halo effect of that tainted my opinion. But your correction is noted. I shouldn’t have called it left-wing. I should have called it wing-nut.
I agree that congress could declare war against al Qaida, and I believe that’s exactly what they did with the joint resolution. Article 8 of the constitution was crafted for state-on-state violence, and there are certain protocols from the Hague and Geneva conventions that we, as signatories, must adhere to when declaring war, which are also tied to state-on-state violence. Thus, I’d agree with Afghanistan and Iraq, but not al Qaida. Having said that, the constitution does not specify in what format a formal declaration of war should be. In fact, nowhere in the constitution does it state that the terms “declare war” need to be included in a declaration of war. Some of our declarations of war simply specify that the United States is in a “State of War”. Thus, by a strict constitutional definition, congress DID in fact declare war on al Qaida. I almost went that route in my blog, but it was just getting too long. That’s a blog in and of itself. Read one of the declarations of war from WW I, WW II, 1812 or others. They read pretty close to what the joint resolution is, without the flowery language of past eras. It makes me scratch my head when people say, “you can’t do that, you didn’t declare war”, meaning that if congress had simply put the terms “declare” and “war” in the joint resolution, they’d all go, “Yep. Awlaki had it coming.” In the end, my whole point was that it WASN’T an expansion of bureaucratic or military authority over American citizens. Like I said, Lincoln killed hundreds of thousands of US citizens in the Civil War – I guess in clear contravention of the Constitution, since he never formally declared war on the south. Anybody who say’s that was different is simply referring to scope. Al Awlaki wanted to destroy the United States, and was actively doing what he could to bring that about.
I don’t find it ironic at all that there’s a bigger uproar over alleged torture than there is over killing. It’s exactly what the blog speaks to: Namely, by the law of land warfare (internationally agreed upon) killing of combatants is legal, but torture is not. Thus, killing a soldier brings little argument. Torturing him, however, causes angst. For the record, “chinese water torture” and waterboarding are not the same thing.
John Stuart Mill also said, “War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself.”
Thank you again for your thoughtful reply.
I gave your first thoughtful post the benefit of a thoughtful post and I appreciate your follow up post. It is refreshing (not to mention rare) to have a civil dialogue online where neither side is demonizing the other and can acknowledge strengths in anothers’ position. I do not ascribe the civility to the fact that we agree on much, but to the tone you use in your blog: I think you have an excellent blog.
On one of your reply points, I am honestly curious. I have understood that “chinese water torture” and waterboarding are the same thing. Please explain the difference. I am not challenging your veracity on this — I haven’t the expertise to do so. I am frankly curious as to the qualitative differences. From what I do know of waterboarding (as opposed to chinese water torture), I do not think that I am wrong to scoff at the Orwellian euphemism “enhanced interrogation.”
Incidentally, if you have not read the excellent trilogy written by Gwynne Dyer, I recommend to your reading list “Ignorant Armies,” “The Mess They Made,” and “Future: Tense.” These three volumes on the Iraq adventure are illuminating, even if one does not agree wholly with the author’s conclusions. I believe his first book was “War” and that also is a great book. Dyer is very easy to read.
Thanks. You would probably be surprised at my thoughts on Iraq, but I haven’t read any of Dyer. I was involved in the process since before we crossed the berm up until 2007. Every single book on the subject has an agenda, be it the “Holy Cause” or the “Horrific debacle”. Dyer falls in the latter camp. I don’t need someone who pontificates on the purposes or end results of the action without ever having experienced a single day of it, since I saw it from the grunt level to the highest position of policy (well, highest in Iraq. I didn’t sit in on NSC debates – but then again, Dyer didn’t either). History will ultimately decide where Iraq plays on the global stage, but I think there have been some positive outcomes, outside the borders. Read my blog https://bradtaylorbooks.com/blog/2011/06/tangled-webs-we-weave-hezbollah-bin-laden-and-the-arab-spring/
Don’t take that as I’m a cheerleader, because I’m not. I’m also not a doomsayer like Dyer.
Chinese water torture is simply strapping a man down and dripping cold water on some part of his body, usually the forehead, right between the eyes, for an extended amount of time (weeks). The end result is the target will do anything to get away from the slow drip. Water boarding is the inducing of the sensation of drowning, pulling out the body’s innate desire to survive. One is long and slow, the other is short and fast. Neither pose physical damage if done correctly. Both operate on psychological levers. And there lies the debate. How far can one use psychological pressure before it becomes torture? For instance, is it torture to lead a man to an interrogation room past a table full of surgical implements coated in fake blood? With no intention of harming him or even mentioning them at all? Obviously, the staged tools serve the purpose of “Talk or else”, but is that torture? If so, then is it torture when police put pressure on a suspect by exaggerating how much trouble a suspect is in? That they’re going to “death row” unless they tell the truth? Or that their buddy is spilling his guts, so he’s got a limited time to make a deal – when that’s false? Is that torture? Police officers use a form of psychological manipulation every day when they “sweat” suspects. Good cop/bad cop is a form of it in and of itself. I’m not saying I agree or disagree, just that the entire debate has focused on the term “torture”, when nobody has adequately defined what that means. Everyone understands pulling out fingernails and electrical shocks, because it’s physical. Nobody has drawn the line on the psychological, preferring to dissect the procedure vice the purpose.
Good cop,cop still works some of the time, and a variance is bad cop, worse cop. But start talking about death penalty on tape–and pretty much now all interrogations of major felony suspects must be recorded from beginning to end–and you are asking for a court to throw a statement out as being coerced and therefor unreliable.
As soon as someone takes up arms against the United States, they’ve entered a field of battle, and a war, of sorts, is engaged. Likewise, if a criminal aims a deadly weapon at a soldier or law enforcement officer, that criminal runs the risk of being fatally shot — and it’s perfectly legal to do so.
One could also look at the U.S. Civil War in which half the nation seceded and took up arms against the U.S. military and president. Should Lincoln, who considered the Confederates to still be Americans, have spared the 250,000 rebels who were killed during that war after they collectively threatened the stability of the United States? Clearly, and for a variety of reasons, the U.S. military effort during the Civil War, while brutal, was justified. Similarly, Sullivan brought up the American-joining-the-Nazi-Army concept.
I agree with Greenwald that due process and justice is crucial—but only in criminal cases where the assailant isn’t engaged in a shooting war against American citizens and soldiers.