Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States.
-- Slaughterhouse Cases (1873)Thus, the citizenship of Awlaki mattered.
Ron Paul is upping the outrage, raising the "i" word and wondering is the media will be next. He does realize certain members of the media already has been detained or even killed in the past, right? Paul is a flawed libertarian hero here given his stance on various things (like letting states outlaw abortion or disallow same sex marriage) and his decision a few years ago to oppose the death penalty across the board adds to the overall deal -- I welcome his efforts, but let's not pretend that there aren't better advocates or that "the left" isn't also criticizing some of the same things. On the whole, rather President Obama than President Paul, but since he won't win (Paul), go ahead. Next, maybe the Tea Party can admit the Wall St. protests are what they are supposedly about. Joe sees the connections. Admittedly, he does say a lot. I can relate ... I just ramble on the page.
Paul says that Awlaki should have received a fair trial, noting even Nazi war criminals received trials. Thus, maybe it is not just citizenship, since those people at Nuremberg weren't American citizens to my knowledge. (There were spies etc. that were, but these aren't who I think when "Nazis" come up in this context.) If he were concerned about giving people trials and not give the President unilateral power here, why did he sign this:
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."He" doesn't mean "a court." It suggests something like a process the third link suggests was used:
They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.Lawyers were involved in the process too -- "rules of engagement" are the norm these days for any use of force, leading me to find "summarily" applied to this process [if properly "due" or not] as misleading as "assassination." Erwin Chemerinsky noted in a speech that the norm in our constitutional system is that at least two branches of government has to sign off on something. This was the case here big picture-wise -- authorization was provided by Congress and like usual, specific application was provided by some executive agency. It is not always the case that another body has to sign off before each specific application is put into place, life, liberty and property at times in the balance.
Some believe that "necessary and appropriate" in this context is different when U.S. citizens are involved. Citizenship split the Supreme Court in the Hamdi case, Scalia (with Stevens) arguing in dissent that detention rules for "enemy combatants" are different, Souter/Ginsburg believing the same, resting on statutory grounds. I'm all for that. They didn't win though: O'Connor wrote the plurality, holding that citizens can be detained as enemy combatants (a clear case here -- an armed person on the battlefield -- other cases left open for lower court determination) if suitable due process is provided. So, a hearing, but no "trial" or criminal "charges" required as such.
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.So says a ruling involving the proper use of deadly force, which baby Alito was involved in behind the scenes. It is said that some are upset that the Administration is being Bush-like for "secret legal justifications and undisclosed intelligence assessments" like those that were used to kill Awlaki. To my knowledge, the Administration has been upfront on the basic logic here -- national self-defense as well as the AUMF 2001 authorizes the executive to target Al Qaeda and citizenship does not alter this general principle. The Administration has no obligation to make public "intelligence assessments" used to apply military force, though is obligated to show it to certain people in Congress. As I referenced in the past, there is also some controversy concerning requirements to inform those with the duty to oversee human rights law of enough information that the force is being used legitimately.
The Administration denies that some unarmed mere propagandist (see last set of blog comments) was involved here:
U.S. officials contrast intelligence suggesting Awlaki's involvement in specific plots with the activities of Adam Gadahn, an American citizen who became a principal English-language propagandist for the core al Qaeda network formerly led by Osama bin Laden.The general sentiment of some is: yeah, like we are supposed to trust you. But, if we are going to authorize military force, some degree of trust is going to be needed. They are not going to provide their operational logs for perusal or anything. What about if the targets are citizens, who have a right to governmental protection, even if they are overseas? If they are somewhere we can reasonably access them, such as reachable farm in Pakistan or something, a "kill order" probably is not appropriate. The line I would draw would be a case like this where such access is not readily available. The fact the host country assisted (or consented) removes that issue, though if does not provide reasonable assistance in detaining someone who is a threat to our country, see Bin Ladin and Afghanistan, force without local consent is legitimate as well.
While Gadahn appeared in angry videos calling for attacks on the United States, officials said he had not been specifically targeted for capture or killing by U.S. forces because he was regarded as a loudmouth not directly involved in plotting attacks.
Some wanted us to indict and try him, not satisfied with Yemen doing it. Curious about that. The government doesn't have the power to execute people by remote control, so even if he was convicted of a capital offense, actually capturing him alive would seem to be required. So, that seems to be something of a red herring -- the idea that a few years hence, while the government has evidence that he is continuously plotting to aid and abet violent attacks from his isolated foreign locale in the mean time, after appeals and such are concluded, critics would accept an "assassination" is a dubious proposition. To be blunt, the logical implication is that we will have to bear with him being at threat, the means used illegitimate.
And, we probably could -- he was just one man, somewhat fungible. Use of kill orders to target individual members seems to me something of a whack-a-mole game, though special cases like Bin Laden are somewhat unique. So, legal or not, it was not mandatory or anything to kill al-Awlaki. This influences the calculus when determining the proper due process required. When they are in harm's way, such as in an enemy base, they assume the risk. If detained, they should be treated as American citizens, various cases setting forth the guidelines there.
When specifically targeted, something more should be required than if they are in effect collateral damage. Realistically, the targets here often will be living with others that can be targets too, so a slight of hand can be imagined. The internal process is appreciated but some third party should be involved with citizens are involved. If FISA courts can be in place merely to search, something akin to that should be in place to "seize" in this fashion. The shoot to kill "in the heat of the moment" case cited earlier would not apply in this situation. And, there seems no reason that they should not be warned. The inability to capture for trial is one thing. The idea that the target should be secret is quite another. Again, he knew what was going on and in effect laughed at the government.
So, to summarize. I think American citizens, even alleged terrorists living abroad, have the right of protection from their government. As a general matter, "flying killing robots" sent to kill them is bad policy. But, legally, particularly under current law, each branch of government has authorized some use of deadly force against certain citizens. International law also allows this is certain cases, particularly if the host country agrees. Nonetheless, if individual citizens are targeted, they should have some sort of individualized independent review akin to referenced in Hamdi:
the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartialIf such is required merely for detention, since "death is different" and worthy of more restraints, the very least required should be that here. Given his status was made public here without the sky falling, I see little call even to have this process done totally in secret though some might be required. He did not seek out this process and the court that decided the matter brought by his father implied that it was not necessary, so nothing "illegal" as such was done here. But, such "due process" SHOULD be required, by statutory law (cf. Souter/Ginsburg opinion) in fact. And, even if the person targeted doesn't want it, such a finding should be required, again akin to a search warrant obtained unless the need is waived. In this context, that probably is not appropriate.
adjudicator
Ron Paul should work to pass legislation in this respect. Sen. Coons noted during his remarks to Chris Hayes that legislation is needed to add teeth to the overly broad AUMF in place, but if anything the Republicans in the House want to expand executive power too much in the other direction. Regardless, the concern about killing U.S. citizens is completely acceptable, even if I disagree with certain aspects of its content.