More on al-Awlaki

I cannot support the strong denunciation of the killing of Awlaki.

First, I do not think it was an "assassination" and the use of the word bothers me.  Second, and I guess this underlines along with the first that people are talking different languages here, "charges" aren't required before military force is used, even against American citizens. So, harping on that doesn't quite do anything for me.  Third, the argument (however broad) made by the Administration isn't some power to kill anyone, anywhere.  Fourth, all the same, I'm not fine with all of this.

I already quoted an international law blog with centrist Democrat leanings. Another who is no kneejerk supporter of our "war on terror" can be quoted to show the complications involved here:

Admiral Yamamoto was the Commander in Chief of Japan’s Combined Fleet, the prototypical combatant who was targetable at any time by the U.S.  Al-Awlaki was a radical cleric whose targetability depended on whether he assumed a “continuous combat function” in AQAP (in which case he was, like Yamamoto, targetable at any time), or whether he was a civilian who directly participated in hostilities on various occasions (in which case he was targetable only for the duration of his direct participation).  Which is it?  I frankly don’t know — but I do know that determining al-Awlaki’s targetabiity is vastly more legally and factually complicated than whether it was legal to kill an enemy Admiral in a formally-declared war.

This helps the "he should get some sort of court process" side some, but it STILL does not mean he has to be "charged" with a "crime," so quoting the Fifth Amendment simply takes you only so far. That isn't the rule in detaining someone in a mental institution either. The civil and military rules change the rules some. This also brings to mind al-Marri, where capturing someone on domestic soil was argued to be different. As Scott Shane (not Savage) wrote today:

The administration’s legal argument in the case of Mr. Awlaki appeared to have three elements. First, he posed an imminent threat to the lives of Americans, having participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year. Second, he was fighting alongside the enemy in the armed conflict with Al Qaeda. And finally, in the chaos of Yemen, there was no feasible way to arrest him.

This might be a bit simplified but it reflects his role as an "operational" member or some such thing of Al Qaeda and outside of our ability to capture him. This doesn't matter to some people (I say this politely) and some will remind people that we really aren't "at war" and can't be against an organization. But, politely, this seems to be like saying abortion is murder -- the 2001 AUMF and international law (though the rules are complex/debatable as applied) authorized military force, which is admittedly not full fledged "war" which brings various other legal results. Ditto the use of "assassination" -- legally, killing legitimate targets (people) is not that. Words have legal meanings and if you are going to not use them, I start to have a visceral reaction.

Awlaki's father brought a federal suit to protect him. Judge Bates, who has shown himself to be a reasonable person on executive power (offering real limits), rejected the suit. He did not rest on state secrets, the Administration saying their reasoning on targeting him was secret. So, those who raise that raise something of a red flag. The article also notes that the ruling was limited, even if one thinks that in practice, it will be open-ended:

But Judge Bates rejected the notion that his ruling granted the executive “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.”

“The court only concludes that it lacks capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an ‘operational member’ ” of Al Qaeda’s Yemen branch, “presents such a threat to national security that the United States may authorize the use of lethal force against him,” Judge Bates said.

So, contra to the guest on Rachel Maddow last night, it is unclear if someone can be shot in NJ. That is, it's a much large step than claimed here by the Administration. I would be strongly against that as I said in the al-Marri discussion. Anyway, the fact that criminal process leaves open other process. From today's article:

No public legal process led to Mr. Awlaki’s becoming the first American citizen to be placed on the C.I.A.’s list of Qaeda-linked terrorists to be captured or killed. Officials said that every name added to the list underwent a careful, if secret, legal review. Because of Mr. Awlaki’s citizenship, the decision to add him to the target list was approved by the National Security Council as well.

Some, logically, aren't too impressed. It is a limit, a process though and if he was on the battlefield, the government didn't have to go to court first to "prove" him "guilty." But, the fact that he had a target on his back was known (I'm not sure how). That matters. Judge Bates noted that he himself didn't seem to want to challenge it in court. I think he probably should have the right to do so. If pressed, I think he would lose in the federal circuit, but that is a separate matter. Of course, he could have submitted himself to custody, though probably not in Yemen, since they convicted him in absentia.

I honestly can't feel too sorry for a guy who put himself in harm's way in enemy territory, especially since he was aware of being targeted and didn't seem to care. It simply was not some horrible horrible thing to target him like this. The nature of this conflict justifies addressing the new situation with new rules and safeguards. This includes - if we allow it - some third party (even ex parte) examining the evidence before putting American citizens on kill lists. I cited an article on how some sort of safeguard should be in place for drone use generally. Let's be honest though and note that judges would be loathe to second guess the government here. And, though there was debate (as is often the case on military targets) on the role of Awlaki, the test isn't beyond a reasonable doubt or something. The Administration in fact claims a higher test for detaining "enemy combatants" than some of the DC appeals judges want to use.  Would it be any difference here?  So, the result is likely to be risky. 

So, if I oppose how this went down, it is in effect more ideal than practical. The level of opposition bothers me more than saying that the Administration was wrong. They might have been. It's a close call to me, especially under the rules in place, which matters if we are concerned with the "rule of law," not simply what is right or wrong. Given it was a close call, ideally, I wouldn't have killed the guy. Yeah, I know. Who am I? As to pragmatics, there are various ways to go there:

The death of Anwar al-Awlaki, an American-born cleric linked to al Qaeda's operations in Yemen, is likely to impact American Arabs and Muslims in positive fashion, according to Dr. Hussein Ibish, former communications director for the Arab-American Anti-Discrimination Commitee.

Again, that counsels caution.