“If assassination is OK, what rules are sacred?”

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Will

Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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  1. Avatar ThatPirateGuy
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    says:

    So, if your born in America you are real person who we shouldn’t blow up based on military intel, but if you are born in Yemen then you are fair game?

    Even if both of you are in Yemen and it is the same intel?
    Seriously?Report

    • Avatar Will in reply to ThatPirateGuy
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      says:

      @ThatPirateGuy, American citizens are entitled to more procedural protections than foreigners. I’m OK with that.Report

      • Avatar ThatPirateGuy in reply to Will
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        says:

        Why?

        The fifth amendment doesn’t say citizen, it says person. Yemeni Anwar Awlaki would be a person just as much actual Anwar Awlaki.

        “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”Report

      • Avatar Boonton in reply to Will
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        says:

        @Will, Pirate is 100% correct. If you want to argue that Yeman is not really a war zone then the conclusion is that any assassinations there are outside the bounds of legality. The Constitutions makes no ‘lower tier’ for non-citizens.Report

        • Avatar Will in reply to Boonton
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          says:

          @Boonton, I think targeting Al Qaeda members who can plausibly be described as “at war” with the United States is OK. My understanding is that Awlaki’s connection to the organization is more tangential, though.Report

          • Avatar Boonton in reply to Will
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            says:

            @Will, Possibly however that doesn’t address the problems with the position you’ve staked out:

            1. Military targets have never been subjected to judicial review.

            2. There is no special category restricting military targets to non-citizens.

            Also while its problematic to say the war is against terrorism its also problematic to say its just against Al Qaeda. Can we only indict terrorists who do not carry Al Qaeda membership cards but bomb ones that do?Report

            • Avatar Jaybird in reply to Boonton
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              says:

              @Boonton, Boonton, the government isn’t even giving us *THAT* much.

              The problem isn’t that the government is doing X.

              The problem is that when the government is questioned about doing X, the government says “I don’t even have to justify it.”

              If they said “well, the guy is al Qaeda” (and, of course, was able to demonstrate this) then making him a target would be fine.

              The problem is stuff like the Jose Padilla case. “Why are you holding this guy?”
              “Well, he wanted to make a dirty bomb.”
              “Oh, that is bad. Go for it.”

              Five years later, it finally goes to trial and the government’s charges have *NOTHING* to do with the dirty bomb. *NOTHING*.

              The government lies. This has been demonstrated.

              When the government says “we get to do X”, we get to ask why. When the government says “We don’t have to say why”, we get to say “THE HELL YOU DON’T”

              You aren’t defending the government against charges of killing people.

              You’re defending the government against charges of killing people without having to make an account for why they’re doing it.Report

            • Avatar Boonton in reply to Boonton
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              says:

              @Boonton,

              1. I suggest you read my longer comment below. The fact is military targetting is not subject to judicial review, let alone prospective targets. Say you have an aunt who is a constant critics of the US who lives in Iran. Can you go to court and demand the gov’t tell you if her house is on a target list should war break out with Iran? Can you ask a court to order the gov’t to reveal why she is on the list, if in fact she is? The answer you’re going to get is ‘state secrets’ as a matter of principle.

              2. Padilla’s case IMO was a clear violation of due process but was also quite different. Padilla’s status as a legitimate military target ended the moment he was taken into custody. From then on he was a judicial target and should have been treated as such. In this case the target appears to be in no one’s custody.Report

            • Avatar Jaybird in reply to Boonton
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              says:

              @Boonton, I’ve got your longer comment below.

              RIGHT HERE.

              The government does not get to kill citizens without saying why.

              You are arguing against me as if I am saying “the government does not get to kill citizens”.

              Please stop.Report

            • Avatar ThatPirateGuy in reply to Boonton
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              says:

              @Jaybird,

              Your not answering the question.

              Can the military kill non-citizens without saying why? If so then why does citizenship stop them?Report

            • Avatar North in reply to Boonton
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              says:

              @ThatPirateGuy , Yes, the military can. There are few to no protections for non-citizens written into the governing laws of this country, or any country for that matter. There is a small selection of rules based on international agreements regarding them. In very rough summary;
              -No intentionally targeting non-military non-citizens as part of a conflict.
              – When capturing a military non-citizen there’re assortments of rules on how to treat them.
              – No torturing them (Bush Minor claims this only applies to uniformed military)

              Really though in practice a government really isn’t much restricted in its behavior towards non-citizens other than by considerations as to what the non-citizens state is going to do on behalf of its citizen.Report

            • Avatar Jaybird in reply to Boonton
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              says:

              @ThatPirateGuy, I would say that a declaration of war would cover many of the questions I have.

              “Why are we shooting these wedding parties?”
              “Well, we took a vote, and said that we were invading this country to bring democracy to the heathen, liberate their women, and use our military to train people to become kindergarten teachers.”
              “Fair enough.”Report

            • Avatar Boonton in reply to Boonton
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              says:

              @Boonton, The government does not get to kill citizens without saying why.

              Why? “War” That’s more or less the end of it. But why was that battleship targetted? Why was that neighborhood outside the main industrial zone? The gov’t doesn’t really have to say, at least not too a person seeking a court injunction against targetting a specific target in a way.

              North

              Yes, the military can. There are few to no protections for non-citizens written into the governing laws of this country, or any country for that matter.

              There is a very specific law called the Constitution, namely no person may be deprived of life without due process of law. This, though, is only applicable on the judicial track. No due process has ever been understood to apply in regards to military operations in a war.

              Bush Minor failed here in that he treated the military track as a blank check to do whatever whenever.

              Jaybird
              I would say that a declaration of war would cover many of the questions I have.
              “Why are we shooting these wedding parties?”

              And why was the wedding party selected by the drone to target? It’s basically an act of war and, again, the gov’t doesn’t explain its decisions in war….at least to the judicial branch.Report

            • Avatar North in reply to Boonton
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              says:

              @Boonton, “There is a very specific law called the Constitution, … … … ”
              Yes Boonton, I can’t say I disagree per say but Americans get automatic entitlement to that judicial track. The American government can’t declare war on Americans. Non-citizens do not get the same privilege. I agree heartily with you on Bush the lesser’s vile behavior, but what we’re witnessing now is Obama apparently aping the same behavior only he’s asserting it even towards an American citizen and that is a line that even Bush and his clown posse didn’t cross.Report

            • Avatar Jaybird in reply to Boonton
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              says:

              @Boonton, so the government could kill *YOU*?

              When asked “why did you kill Boonton?”, we’d have to deal with the answer “state secrets”?Report

            • Avatar Boonton in reply to Boonton
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              says:

              @Boonton, Yes Boonton, I can’t say I disagree per say but Americans get automatic entitlement to that judicial track.

              Actually no they don’t. See my hypothetical of the American serving on an enemy battleship or the American serving inside Nazi Germany’s Ministry of Propaganda. The military’s only check are their rules of engagement and if an American citizen is on the other side of that they can take him down.

              Your assertion can be found nowhere in the actual Constitution.

              I agree heartily with you on Bush the lesser’s vile behavior, but what we’re witnessing now is Obama apparently aping the same behavior only he’s asserting it even towards an American citizen and that is a line that even Bush and his clown posse didn’t cross.

              Nice try but you’re mixing up two different cases. When a person is in custody he ceases to be a military target. Period. The military track concerns military objectives (destroy the enemy ship, destroy the enemy’s propaganda outlets), not individuals. Individuals become targets because they are in the way of those objectives. When the ship sinks the sailors are no longer targets, when the broadcasting station is destroyed the clerks cease to be a threat.

              The judical track concerns itself with individuals. Roman Polanski has a warrant for his arrest not because he presently much of a danger to young women. The judicial track is full of checks and balances but it also has a long memory and is the forum for seeking ‘vengeance’ against individuals.

              Unless you can show that this guy has ceased providing aid to terrorism and the Obama administration is simply targetting him because they want to exact vengeance on him for his previous aid for terrorism and criticism of the US you are not describing a ‘judicial track’ situation.Report

            • Avatar Boonton in reply to Boonton
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              says:

              @Boonton, @Boonton, so the government could kill *YOU*?

              As part of a military operation? Yes it can. Following the rules of engagement for the given conflict. Operating outside that would leave the soldiers liable for prosecution for murder (see, for example, the current AFghanistan case where several soldiers are accused of murdering Afghan civilians ‘for sport’).

              Try addressing the two hypotheticals:

              1. American serving on an enemy battleship.

              2. American inside something like Germany’s Ministry of Propaganda.

              Do you agree that in both these cases a family member of the American would have no legal standing to go to court and press for an injunction preventing either the battleship or Ministry from being targeted? Do you agree that in the case of the Ministry the American himself could be targeted if he was an important person in it?Report

            • Avatar Jaybird in reply to Boonton
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              says:

              @Boonton, what if you’re a guy talking on the internet?

              Can we ask the government “why did you kill that guy?” and have to shrug when we get the answer “state secret”?

              You keep saying “well, there are *RULES*” and I’m pointing out “the government says otherwise… they say that they can do whatever the fudge they want and say ‘state secret'”

              You give an example “but what about a guy who totally is bad?” and I point out that we ain’t discussing that but the government killing a guy and, in response to being asked why, saying they don’t have to tell you squat.Report

  2. Avatar Boonton
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    says:

    Let me put this point out again regarding Awlaki:

    There’s a major confusion here in refusing to recognize that there’s two overlapping ‘tracks’; judicial and military.

    Military: Little or not checks and balances beyond the military itself. Designed for addressing direct, immediate threats or obsticals to legitimate military goals.

    Judicial: Designed to address questions of justice. Punishment etc. There’s a lot of checks and balances but its advantage is that it works over the long term long after the immediate threat or problem has ended.

    Now with this in mind consider the following: In a war the military sinks a battleship. If you asked why the battleship was choosen as a target, esp. if you asked by means of a court, the answer you are probably going to get is something like ‘state secrets’. It’s the principle of the thing. There is no judicial review of military targets in a war. None.

    Now consider this, on this battleship is a potato pealer named Jim who happens to be a US citizen. Again this does not change anything. Just because he is a citizen there is no judicial review of the battleship being targetted. Jim’s father can’t go to court and demand that the battleship be delisted as a military target.

    Now suppose Jim survives the ship’s sinking, swims to shore and starts living a conventional life as a barista at a Starbucks.

    Here since Jim is no longer part of the military action, he is not a legitimate military target, whether or not he is living in the US or elsewhere. However he is a perfectly legitimate judicial target. He may be indicted for serving with a foreign power against the US. If he is all the judical systems apply.

    Now let’s ask a slightly different question. It’s WWII, is the German Ministry of Propaganda a legitimate military target? Does this fact change if you consider that the Ministry has plenty of office workers some of whom may be US citizens? In fact considering the Propaganda Ministry could have a lot of use for a person who speaks both German and English it very well may be known for a fact that the building has plenty of US citizens in it. I don’t think its assassination to target the Ministry. In fact, suppose we know at the Ministry there happens to be a high ranking Director who is a US Citizen (his mother married a German and moved to Germany a year after he was born) and he is quite talented and happens to live in a flat two blocks from the building. Is it legitimate to not only target the Ministry building but also target his flat in hopes of taking him out as well? Assume for the sake of argument that the Ministry is technically not division of Nazi Germany’s military but its civilian government.

    Assuming you have answered yes to all these questions, then why would it make a difference if the ‘Director’ was doing his work several hundred miles away out of an internet connection in his basement?Report

    • Avatar North in reply to Boonton
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      says:

      @Boonton, A pity we can’t know any of this since the government justification and proof on this subject consists of:
      “We wanna kill this citizen because *redacted* *redacted* *censored* *state secret* *trust us*. “Report

      • Avatar Boonton in reply to North
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        says:

        @North, And how about all the non-citizen’s targetted? Do you have easy access to the documents used to determine why they were targetted?Report

        • Avatar North in reply to Boonton
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          says:

          @Boonton, I don’t Boonton, but I wouldn’t necessarily expect to. They’re non-citizens. There is a significant difference between citizens and non-citizens. Governments necessarily have a very long raft of restrictions and responsibilities about their interaction with their citizens. They have very few obligations or responsibilities towards non-citizens.Report

          • Avatar ThatPirateGuy in reply to North
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            says:

            @North,

            This strikes me as weird.

            Are you really saying that your ok with the government “assassinating” people so long as they aren’t citizens?

            Bob, the Brit who protests the war getting popped and the government claiming state secrets, no problem.

            Alice the American getting popped at the same rally and it is tyranny?
            (note both are in Briton)

            Can you explain to me why Bob’s dad shouldn’t be able to sue to stop us, but Alice’s should? Is citizenship a magic talisman that makes one worthy of moral consideration?

            Keep in mind this equals putting the world on notice that if our government doesn’t like you we just might take you out, because non-Americans don’t have rights.Report

            • Avatar Jaybird in reply to ThatPirateGuy
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              says:

              @ThatPirateGuy, non-Americans *DO* have rights.

              It’s just that most attempts to kill non-Americans fall under some sort of vote taken in Congress… which can then, later, have some sort of victory declared and then we can pull out and, presumably, stop killing non-Americans.

              You just have to vote in a party willing to end the war.Report

            • Avatar North in reply to ThatPirateGuy
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              says:

              @ThatPirateGuy, Pirate, you appear to be indulging in one of the noblest of liberal conceits which is reasoning with your heart instead of your reason and I respect that. But in doing so you’re conflating two separate issues; one of morality and one of the law. So I’m going to unleash a horrible wall of words on you. Apologies in advance.

              Let as allow, for a hypothetical moment, that ceteris paribus assassinating a non-citizen (your hypothetical Bob the Brit) and a citizen (Alice the American) are equally morally wrong. This isn’t too much of a stretch, after all they’re both human and our moral reasoning says that as humans they’re both equal. So far we’re on the same page but this ignores, of course, the law which is not morally pure dealing as it does with our grim real life world.

              Now if we assassinate Bob the Brit her Majesty’s British government is legally entitled, (nay required!) to come very assertively up to us and ask us what the hell we think we’re doing. If we can’t give a damn good explanation for our offensive act against Bob we could be looking at a diplomatic incident with consequences ranging up to war. This is because the British Government is legally required and responsible for protecting their citizens from foreign threats including us damned yanks. If the Brits popped off Alice you can be damned sure we’d be pounding on their door demanding an explanation right quick and we’d be legally right to do so. It’s one of the things liberal responsible governments are required by their laws to do.

              So we killed Bob, the British come a-knocking and they’re pissed and tweedy as all get out. So our government takes them to a quiet room and makes his case. Bob was rigging a trash can bomb at the demonstration for instance. They lay out their evidence and the British talk it over. If they’re convinced that we were in the right there’s probably still an incident. As a British citizen we’re obliged to let the British know about this before we go murdering their peeps by treaty. The British have their domestic house in order, it’s entirely possible that they could have scooped Bob up and sorted things out without him being killed.

              This brings us to Alice. If the British killed Alice she’d have someone getting roaring mad about it; us. But if we killed Alice, our own citizen, who is there to get roaring mad legally speaking? According to the law; us. According to the law non-citizens have their own countries to look after them. Our citizens only have us to look after them. Therefore we are legally restrained towards our citizens in ways we’re not restrained towards foreign nationals. To protect us from our own American government. Non-citizens, in legal theory, have their own governments to protect them from our government. Citizens have no one in legal theory to protect them from our government. You can’t expect the British to come storming in on behalf of Alice for instance. They have other things to do. Now some governments can’t or won’t protect their citizens. That sucks. Illiberal and impotent governments exist. The world sucks in places.

              So in summary. Assassinating Bob the Brit without the raft of legal disclosures, judgments and reviews that the constitution requires for American citizens: Morally horrible, legally permitted because Bob is not a citizen and isn’t protected by our constitution; he’s protected by his own government.
              Assassinating Alice the American without the raft of legal disclosures, judgments and reviews that the constitution requires for American citizens: morally horrible but ALSO legally a fundamental violation of the foundational laws on which our government is constituted.

              So citizen and non-citizen are different, legally speaking. Morally it’s awful to assassinate either. But morally and legally it is deeply and specially awful to kill an American citizen without due process. Foreigners are supposed to have their own nations to watch out for them. Americans just have the law. If this unconstitutional citizen murdering goes on unchallenged I am deeply afraid of where it will lead. I think I can hear the wind howling out of the abyss. Not today, maybe not tomorrow, but conceivably in my lifetime.Report

          • Avatar Boonton in reply to North
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            says:

            @North, I don’t Boonton, but I wouldn’t necessarily expect to. They’re non-citizens. There is a significant difference between citizens and non-citizens.

            Is there? American citizens lived in both Japan and Germany in WWII. The Constitution treated them no differently than non-citizens in regards to military action. In terms of judicial action the Constitution is likewise undeniably clear, life cannot be taken without due process of law.

            The only source of confusion here is forgetting that legitimate military action is afoot here. By demanding that these questions only be examined through a judicial lens misses that essential point.Report

            • Avatar North in reply to Boonton
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              says:

              @Boonton, this isn’t a potential collateral incident as a consequence of a massive formal war with a hostile nation Boonton. This is the specific targeting of an American citizen for extra judicial execution with all justification being hidden from the public on grounds of state secrets. If I were Cheney, Bush Minor or Yoo I’d be grinning from ear to oily ear.Report

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