Obama Admin: Legal Theory for Whacking US Citizen "classified."

[kgbsquirrel]

De Selby, posing the War on Drugs as the equivalent of the War on Terror (specifically the wars in Afghanistan and Iraq) is an intrinsically flawed comparison for a very simple reason: The two are governed by entirely different bodies of law. Whereas we have been pursuing the WoD with civilian law enforcement which are ostensibly constrained and directed by the civilians courts and their laws (because the violation in question is one of civilian law) the WoT on the other hand is a direct foreign threat posed to the nation as a whole and is thus being pursued as an actual war (and not just one in name) with the full deployment of the military, something that is expressly prohibited from being done in the WoD. Advancing the notion that the two to be the same, or indeed any civilian enforcement scenario to be the equivalent of the military waging war against a national enemy, is disingenuous to the extreme.


Now, drawing on my own personal experience dealing with this sort of situation I can say this charlie-foxtrot should never have come into being. There was absolutely no need for a special super-secret legal reasoning for why this guy should be killed as a member of an enemy force, and if I were any of you I would be highly suspect as to why the current administration would ever feel the need for such. With that said, this should have been handled quite simply thus:

Final vetting note for target packet-

All credible intelligence sources (see attached target packet) indicate that Anwar al-Awlaki has openly engaged in warfare against the United States and her allies inside and out of declared war zones. His status under the Geneva Convention is that of Unlawful Combatant. His status and position in the enemy's hierarchy qualifies him as a High Value Target. It is recommended that Anwar al-Awlaki be killed or captured if possible.

When you are engaged in an actual shooting war (and not a cross-border policing) civilian law does not come into play. You do not go to the local circuit court and get a warrant for an enemy soldier's arrest. You do not throw away hundreds of your soldiers trying to capture each and every enemy fighter in order to fly them half way around the world and so they can have a civilian trial. And you most certainly don't obfuscate the exigencies of a battlefield with murky legal reasoning as to why you are allowed to fire a missile at the enemy. You do however gather intelligence on their activities, their whereabouts, their plans, and then you try to kill them, as quickly and efficiently as your means allow so that you lose a few friendlies as possible, and I make no apologies for this. The fair fight is the one I win and everyone on my side comes back alive and to hell with the enemy force. When the dust settles if you've manage to take some of them alive, either through luck or obvious surrender, then you process them as Prisoners of War with all the provisions allotted for in the various treaties and agreements pertaining to such. That they managed to survive the battlefield does not qualify them for all the privileges, immunities and rights granted a civilian in the U.S. legal system. Remember, they are no longer classified as civilians. They are illegal combatants. And they get to enjoy all the wonders such a status under the laws of war bestow upon them.

[De Selby]

kgb, there is one simple problem - the laws of war give people who are not in uniform, and not actually (as in, at the moment) attacking while bearing arms the right to a criminal trial to determine if they are in fact unlawful combatants, and if they are in fact liable for criminal penalties.

Under our traditional laws of war, Awlaki would have to have been found guilty of engaging in terrorism before the strike could be legally undertaken.  Now, if you have a trial (military or otherwise) and prove to an independent fact finder that Awlaki did engage in combat on behalf of Al Qaeda, this would be a whole different story.  

That's the legal reality - more troubling is the policy justification.  If it's all about "avoiding national suicide" and "extreme threats", why would we apply the laws of war (which are less restrictive) to terrorism when we haven't to international drug trafficking, which is much more threatening and dangerous? 

[kgbsquirrel]

Fine. Show me the law from one of the conventions of war that states I must wait for a court decide the status of an unlawful combatant that has not yet been captured before I am allowed to take action against them.

[Fitz]

kgb, there is one simple problem - the laws of war give people who are not in uniform, and not actually (as in, at the moment) attacking while bearing arms the right to a criminal trial to determine if they are in fact unlawful combatants, and if they are in fact liable for criminal penalties.

By that retarded logic, ANY terrorist asswipe who is not actually shooting, should have a trial.

Which makes every single bombing mission we've undertaken EVER in the war on terror, illegal.

 

[kgbsquirrel]

If it's all about "avoiding national suicide" and "extreme threats", why would we apply the laws of war (which are less restrictive) to terrorism when we haven't to international drug trafficking, which is much more threatening and dangerous?  

Go back and actually read my first paragraph this time. It was answered there.

[De Selby]

Fine. Show me the law from one of the conventions of war that states I must wait for a court decide the status of an unlawful combatant that has not yet been captured before I am allowed to take action against them.

Sure.  That would be found in Art 3 of the Fourth Geneva convention http://www.icrc.org/ihl.nsf/WebART/380-600006?OpenDocument:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

That's a law that says you can't execute people unless they're actually fighting on the battlefield.  And there's an obvious reason for it.  What if the Government simply asserts, but has no real proof, that their target was fighting?  (d) gives you the right to contest the Government's claims, which, as we all know from dealing with Government, frequently turn out to be false.

Then there's also Article 5 of the Third Geneva Convention which reads (this following an explanation of how militias qualify for POW status under certain circumstances)http://www.icrc.org/ihl.nsf/FULL/375?OpenDocument:

Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

So that's what happens when you catch these people, as you're obligated to do when they lay down their arms or for whatever reason are not actively engaged in hostilities.

Your file note idea does not come close to meeting the legal tests for determining that someone a) committed crimes sufficient to warrant the death penalty nor b) that their status was illegal even if they were caught fighting US troops.  

[De Selby]

Go back and actually read my first paragraph this time. It was answered there.

No, it was not - you asserted that terrorism is governed by the laws of war.  That is not a legal reality; there's no law that says you must treat terrorists as you would foreign armies.  In fact, prior to 2001, the USA actually did apply civilian law to terrorists, including Al Qaeda terrorists.

Applying "the laws of war" (I put that in quotes because the Government didn't actually apply the laws of war - it argued that no laws of any kind restrain its power to deal with terrorists) was a conscious policy decision.  That makes the question more than reasonable as to why drugs can only be fought with limited Government power, but terrorism opens up any course of action the Government feels like taking.

[De Selby]

By that retarded logic, ANY terrorist asswipe who is not actually shooting, should have a trial.

Which makes every single bombing mission we've undertaken EVER in the war on terror, illegal.

 

No, it doesn't - you are reading what you want to read there.

[Fitz]

No, i'm not. you emphasized ACTIVELY engaged in hostilities

You went out of your way to emphasize this:

I quote:

and not actually (as in, at the moment) attacking

So, every single time we've bombed terrorists as they sleep, we have committed a crime.

That's what you're saying

[De Selby]

No, i'm not. you emphasized ACTIVELY engaged in hostilities

You went out of your way to emphasize this:

I quote:

So, every single time we've bombed terrorists as they sleep, we have committed a crime.

That's what you're saying

No, it is not - an army marching towards an objective is not shooting, but it's clearly actively engaged in combat.  That's why it's important to define the battlefield (we had that in Iraq and Afghanistan) and to limit strikes to the armed camps.

Picking some guy in a random city anywhere in the world and asserting that he's an "illegal combatant" is qualitatively different and so obviously contrary to the laws post above that it can't be compared.   Yet this is exactly the power the Government asserted to kill Awlaki.

[Fitz]

So, the enemy avoids using armed camps. They hide in the shadows and in tiny safehouses.


Clarify your position: no more backpedaling. Are those strikes on safehouses illegal?


You are asserting that our strikes are illegal

[De Selby]

So, the enemy avoids using armed camps. They hide in the shadows and in tiny safehouses.


Clarify your position: no more backpedaling. Are those strikes on safehouses illegal?


You are asserting that our strikes are illegal

Yeah, nothing I'm saying is inconsistent here.  You need to take a deep breath and read the thread before you read what follows.

The key consideration is where those safe houses are located.  If your enemies flee the country where the war is and hide out in other countries, obviously it's illegal to just bomb them.  No one seriously claimed at the time, nor would it have been taken seriously in any office or Court in America, that Nazis who escaped to the US and hid out (to avoid prosecution) could legally have been shot on sight by the US Government.  

Nazis hiding in a bunker in Germany though? Whole different kettle of fish, and the distinction isn't very tough to understand.

Had Awlaki been hiding in a Taliban bunker in Afghanistan alongside a bunch of Al Qaeda fighters, he'd be taking his chances.  Flee that situation to Germany and hide under an assumed identity?  Sorry, he's now a former combatant, on the run from war crimes prosecution.  

There are important reasons for that distinction - without it, the Government can literally claim the right to kill anyone anywhere simply by alleging a connection some war, somewhere (any war will do.)  And that has been a power no Government in America ever claimed prior to the 2001.  

People like Slobodan Milosevic and Radovan Karadzic make arguments similar to the one you are making in international courts, but it's unlikely any nation will accept them.  And again, the reason is obvious - any other system gives the Government carte blanche to kill people without any limit.

[Fitz]

You are backpedaling. Your first assertion was that actively engaged in shooting was the criteria. Then you said if they're resting but on the battlefield they're still "in active combat"...

Now suddenly it's location based

But that's fine. I expect inconsistency from you.


Let me ask you this: if he's in a safehouse full of al-qaeda members in Afghanistan, or a safehouse full of al-qaeda in Syria, Libya, or friggin Antarctica: What is the goddamn difference?

I bet if you were a military officer you'd be the guy opening a 15-6 on troops for doing their jobs and killing the enemy, all on a technicality.

[De Selby]

Fitz, no amount of typing will settle this if you refuse to see anything other than what you want to see - your questions are clearly addressed above. 

If I were a military officer I'd have serious doubts about fighting for a President who claims he has the right to kill me and my whole family, whether they're in New York or Antarctica or anywhere else, without giving me a chance to deny his supposed reasons for doing it. 

[Fitz]

Interesting.

You don't think that a military officer who fought for the enemy would be killed on sight? I think he would. In fact, I'd pull the trigger. Traitors are a special breed of ahole.


You didn't address my questions. you continually revised your positions.

If you're going to assert ridiculous things, at least have the backbone to stand by them. Your backpedaling is cowardly.

I'm done. Does this forum have an ignore list?

[Fitz]

I was just doing some thinking:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

I would argue that this guy's statements constitute a confession. Who cares if it's in a court or not. I certainly don't. The location where someone reveals themself to be a murderous scumbag doesn't matter to me.

[kgbsquirrel]

....

You've made an assumption that the phrase "actively engaged in hostilities" equates solely to shooting a gun (and then later changed your mind as your claimed facts no longer suited your current argument). You have failed to take into account that "hostilities" covers a much wider range of activities, such as training, planning, arming, just being a member of one of the belligerent groups that hasn't been captured and interned yet, etc. By your definition I was in no way "actively engaged in hostilities" while I was directing UAV's from the S2 shop. After all, I wasn't out there with my M16A2 shooting at the Taliban. And yet I still managed to kill 16 Taliban from my comfy sit and swivel. Certainly not "actively engaged in hostilities" there, not at all. In short, article four is neither here nor there for a major leader of a belligerent group who is in transit between safe-houses/facilities where they are actively engaging in hostilities by planning, preparing and launching attacks from said facilities.

As for article 5, it states only that if there is any doubt concerning captured persons they shall be regarded as prisoners of war until their repatriation (which is at the end of the war in case you were curious), and as POW's they are to be protected by the Geneva conventions. Note it doesn't say the protections of the host countries civilian legal system.

By the by, since Anwar al-Awlaki was killed while in transit in his automobile I see a most distinct parallel to another famous figure who was also killed while in transit. At this point I would ask a rhetorical question about whether you would determine that case to be an illegal execution, but I'll save you the trouble. His name was Admiral Yamamoto. He was one of Imperial Japan's best military leaders during World War 2. We found out when he was going to be vulnerable and we killed him. This significantly aided our victory in the Pacific. Anwar al-Awlaki was at the least a vociferous, if not key, leader of the enemy we now fight. We found out when he would be vulnerable and he is also now dead. Time will tell how significantly this will help us in our current war.

No, it was not - you asserted that terrorism is governed by the laws of war.  That is not a legal reality; there's no law that says you must treat terrorists as you would foreign armies.  In fact, prior to 2001, the USA actually did apply civilian law to terrorists, including Al Qaeda terrorists.

Applying "the laws of war" (I put that in quotes because the Government didn't actually apply the laws of war - it argued that no laws of any kind restrain its power to deal with terrorists) was a conscious policy decision.  That makes the question more than reasonable as to why drugs can only be fought with limited Government power, but terrorism opens up any course of action the Government feels like taking.

Reading comprehension failure. I did not assert terrorism is governed by the laws of war. I asserted that an actual *expletive deleted*ing war being executed by the actual military is governed by the laws of war. Did I use small enough words that time?

[De Selby]

I'm continuing to respond politely to posts that contain outright personal insults for one reason - this is an interesting and important topic and I think it's worth exploring.  So here we go kgbsquirrel

Certainly not "actively engaged in hostilities" there, not at all. In short, article four is neither here nor there for a major leader of a belligerent group who is in transit between safe-houses/facilities where they are actively engaging in hostilities by planning, preparing and launching attacks from said facilities.

You seem to be arguing that under my definition while piloting a war machine you're not "actively engaged in hostilities."  I'm not sure of any Court in the world where that argument would work - UAV pilots are pretty much the definition of it.  Imagine if I were arguing this about Awlaki had he been shot while sitting behind the controls of a drone-bomb towards new york.  You wouldn't need a classified legal opinion, nor any disputes about what the "war on terror" covers to do that - the basic law of self defence would apply. 

What I'm saying is that Awlaki's killing was not the killing of someone at the controls of a UAV.

Your comparison to Yamamoto fails in several crucial respects - Yamamoto would have been immune from prosecution for many thousands of killings of US soldiers had he survived the aerial combat and been captured, or surrendered, or in any other way landed in US hands.  Yamamoto had the right to go on living once he was out of the fight.  The Government affords no such immunities to terrorists, nor does it recognise any distinction between their capacity as belligerents and their peacetime status (something Yamamoto had.)

Then there's also the fact that Yamamoto was flying in a war zone, in a military plane, during a war between two powers with defined limits.  If Yamamoto had quit the Japanese army and fled in secret to New York, shooting him would have been considered a crime.  Now if he were caught in New York, the Government might have alleged he was an infiltrator, still fighting for Japan, or any number of things - but none of those allegations would have been sufficient to justify shooting him in those circumstances.

I did not assert terrorism is governed by the laws of war. I asserted that an actual *expletive deleted*ing war being executed by the actual military is governed by the laws of war. Did I use small enough words that time?

You said the "War on Terror" is being prosecuted as an actual war.  And my point was that prosecuting it as such was a conscious decision by the Government.  The Government dealt with the same actors, and the same kinds of terror attacks, under civilian law before 2001.  It had a choice after 2001 and it chose to switch course.  There's no good reason why we shouldn't question its choices.

Edited to add double clarity (and hopefully to thereby focus on the content without personal attacks being drawn in)

[Fitz]

Your comparisons to yamamoto aren't valid on several levels. This guy didn't "quit" al qaeda, he went into hiding. Still an active participant in the organization. The "military plane" argument doesn't hold water, because al-qaeda isn't a military. Their trucks aren't military, yet we destroy them. Their personnel aren't military, yet they are combatants.

Also, I would like to know how YOU would conduct operations against al-qaeda effectively without going to war. If you have a workable plan, I'd like to hear it.

Also: I'm not seeing any unwarranted personal attacks. Please point them out

[kgbsquirrel]

You seem to be arguing that while piloting a war machine you're not "actively engaged in hostilities."  I'm not sure of any Court in the world where that argument would work - UAV pilots are pretty much the definition of it.  Imagine if I were arguing this about Awlaki had he been shot while sitting behind the controls of a drone-bomb towards new york.  You wouldn't need a classified legal opinion, nor any disputes about what the "war on terror" covers to do that - the basic law of self defence would apply.

Your statement shows that you are willing to make assumptions with a total ignorance of how things work. The drones for instance. The actual pilot was back in the United States whereas I had a video feed from it, and a laptop with mIRC and a secure connection. I did nothing more than type instructions into a chat window telling the person sitting next to the actual pilot of where I wanted them to fly, look, and on the very rare occasion, shoot. Wow that sounds almost like a certain dead guy who used to tell his fighters where to drive to, reconnoiter and attack using cellphones.

Your comparison to Yamamoto fails in several crucial respects - Yamamoto would have been immune from prosecution for many thousands of killings of US soldiers had he survived the aerial combat and been captured, or surrendered, or in any other way landed in US hands.  Yamamoto had the right to go on living once he was out of the fight.  The Government affords no such immunities to terrorists, nor does it recognise any distinction between their capacity as belligerents and their peacetime status (something Yamamoto had.)

Again with the assumption. In this case assuming Yamamoto would not have found him self in the exact same tribunal that the other surviving top-most leaders of the Imperial Japanese Military found themselves in. Something tells me he would have been sitting right next to Tojo, but that's just an educated guess on my part based on other actual events that transpired.

Then there's also the fact that Yamamoto was flying in a war zone, in a military plane, during a war between two powers with defined limits.  If Yamamoto had quit the Japanese army and fled in secret to New York, shooting him would have been considered a crime.  Now if he were caught in New York, the Government might have alleged he was an infiltrator, still fighting for Japan, or any number of things - but none of those allegations would have been sufficient to justify shooting him in those circumstances.

Fitz already covered this, but I'd state that Yemen, where the attack took place, is actually well within the "war zone" considering a number of enemy training camps and other facilities have been located there, same as the North Vietnamese Army soldiers who were traveling through or stationed in Laos on the Ho Chi Minh trail. They didn't cease being enemy combatants (or unlawful combatants in the Taliban and Al Qaeda's case) just because they moved into another country. The only question is do we have the political where-withal to pursue them into those other countries. During Vietnam, we didn't. Today, we do (sometimes, though as of late, the Pakistani border has become less and less of a safety line).

You said the "War on Terror" is being prosecuted as an actual war.  And my point was that prosecuting it as such was a conscious decision by the Government.  The Government dealt with the same actors, and the same kinds of terror attacks, under civilian law before 2001.  It had a choice after 2001 and it chose to switch course.  There's no good reason why we shouldn't question its choices.

Good, question it's choices, put that 1A to use. But asserting that people like myself are murderers (arbitrary decisions, no due process, illegal executions, oh my!) because we are not applying civilian law in a military situation and then trying to justify it with flawed comparisons is erroneous to say the least and as I'm sure you've gathered, is not received well.

[Fitz]

It's ok. Stand by for further backpedaling and revisions of his arguments

[kgbsquirrel]

It's ok. Stand by for further backpedaling and revisions of his arguments

Heh, what I'm really waiting for is to be called a poser who didn't actually vet targets or direct Shadows/Predators. 

[Fitz]

Of course, by pointing out his backpedaling, I am clearly engaging in a "personal attack"

[roo_ster]

DS:

"Hostilities" is more than just marching & shooting.  Planning is just as hostile.  By your logic, the Austrian corporal was a non-combatant during WW2.


Fitz & KGBS:

It makes sense if DS's purpose is to wage lawfare against America.

Don't doubt for a moment that he'd try to implement the most sweeping of his assertions against our troops, were he in a position to do so.  Yet another reason to never, ever cooperate with the ICC and to consider it an act of war if someone got their hands on one of our troops and tried them before it.

[TommyGunn]

Tommy, the point is one of comparison - you're saying that we need to set aside our liberties to fight terrorism because if we don't, there's no way to win.

I'm pointing out that the drug war has killed far more people than terrorism, and ruined countless more lives, yet no sane person on this board would argue that we need to suspend our right to trial in order to fight drugs.  

If terrorism is such a lethal threat, why don't you support doing away with trials and allowing Government assassinations for the drug war, which is far more dangerous to America than terrorism will ever be?

   I don't know why I bother........
No, I did NOT say "we need to set aside our liberties to fight terrorism because if we don't, there's no way to win."
The drug problem has been a direct problem far longer than terrorism and has infiltrated our society far more thoroughly than terrorism.  It's a pretty bad threat....go look at what crack cocaine does to people.
We've only been warring with the Jihadis since 9/11/01.  Terrorism became a "pretty lethal threat" on September 11th, 2001.  I am not willing to sit back and allow the Jihadis to take as many lives as the ill-fought "war on drugs" before I agree we ought start killing the bastages.
The president has many legal advisors around him and I am fairly certain the authority for whacking him was pretty well vetted, and as well the U.S. military has a whole bunch of JAG lawyers around vetting their actions, so I am fairly certain that the legality of every flip of the switch was likely properly vetted before Al Awlaki was sent to his maker.
The idea that we ought to "set aside" our rights to me is rather a non sequitor.  I never said we ought to though I do think our rights have been under attack since long before 9/11.  I don't consider offing Awlaki to be a violation of my rights, your rights, or anyone else's rights.  
I also tend to wonder just where everyone was who is complaining about our loss of rights under the "war against Jihadi terrorists"  back when Clinton was signing on to Echelon, or Nixon was compiling an enemies list, or the BATF was shooting Randy Weaver's wife & son, or frying up the Branch Davidians.
A little research will show that our rights have hardly ever been completly safe from attack.
But please don't try to convince me that radical Jihadis do not pose a threat to America, because I think it's pretty undeniable since they manage to commandeer our own aircraft on 9/11/01 and murder 2,973 innocent human beings.
I can very largely avoid probems with illegal drugs by not seeking them out and not using them.
I can't so easily decide to avoid terrorist attacks .... I have no idea when where or how they will atack us again, or if the FBI will be able to interdict the attack or not.