Assassination And War

By Big Tent Democrat, Section Other Politics
Posted on Mon Oct 04, 2010 at 12:56:36 PM EST
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The issue of the "kill or capture" order issued by President Obama against Al-Awlaki (believed to be in Yemen) has spurred significant debate. I think it is a very difficult issue as a policy question, but what it boils down to as a legal question is this - what is the battlefield when it comes to terrorism? Glenn Greenwald writes:

I actually can't believe that there is even a "debate" over whether an American President -- without a shred of due process or oversight -- has the power to compile hit lists of American citizens whom he orders the CIA to kill far away from any battlefield.

(Emphasis supplied.) While using the appropriate word in this case - "assassination" - is intended to shock, and it definitely jars, the REAL issue is what is the battlefield? Glenn is just plain wrong in my view when he writes "it's almost impossible to ignore how similar are the rhetoric and rationale between (a) Bush supporters who justified presidential torture and (b) Obama supporters who now justify presidential due-process-free assassinations." Let's be clear - torture is a war crime, illegal under US law, is ineffective and is simply indefensible morally and legally. Glenn's "b" is what happens in war. Now you can argue that war is like torture (remember that torture is a violation of the Laws of War) and to even speak of Laws of War as an oxymoron, but it is simply wrong of Glenn to act as if they are the same. More . . .

This is simply a much tougher issue than Glenn is crediting. Torture is not. Torture is clearly illegal, under US law, international law and the Laws of War.

Whether you believe President Obama should issue "kill or capture" orders in areas that are not traditional battlefields is a worthy issue of discussion. What it is not is illegal.

In responding to Andrew Sullivan, Daniel Larison writes:

When the U.S. government targets Al Qaeda and Taliban leaders for execution by drone strike, these are sometimes called “decapitation” strikes, which isn’t quite the same as calling it an assassination. Nonetheless, a decapitation strike achieves the purpose of assassination, which is typically to eliminate a high political/military leader to try to throw a government or army or organization into chaos.

I do not shy away from the word. War is as ugly as assassinations. Indeed, more so. The real issue is this, from Sullivan:

Glenn asks:

Are we "at war" on the entire planet -- the centerpiece of the Bush/Cheney assertion of radical powers -- or are there physical limits to where the President's war powers apply, i.e., where the "battlefield" is? If we're "at war" anywhere and everywhere Terrorists are found, does that apply to U.S. soil?

No it doesn't.

And it can't. In Hamdi, the Supreme Court said:

We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.

Assassinations of citizens in the United States is unconstitutional. Glenn makes many fine points on the policy dilemma this issue raises, but I think he overreaches when he compares the issue to the question of torture.

War is hell, and discussing war produces a hellacious debate. Here, to my mind, the main issue is definition of the battlefield where the President has the power to order belligerence against nations, entities and individuals. It is a tough tough issue as policy. Less so as law. Let's discuss the policy. For a similar disagreement I had with Glenn, see this post on enemy combatants and preventive detention.

I am positive that Jeralyn disagrees with me on this issue so I am definitely speaking for me only.

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IMO (5.00 / 1) (#1)
by Ga6thDem on Mon Oct 04, 2010 at 01:05:25 PM EST

this is why everyone should have due process. I saw the slippery slope when Bush started the enemy combatants and I see the "hit" ordered on an American citizen as the next step down that slope. I do agree that it something that we as a county need to discuss but every time we start to discuss these things someone tries to shut it down.

Sorry, BTD, but on this you're full of it (5.00 / 2) (#2)
by scribe on Mon Oct 04, 2010 at 01:39:43 PM EST

The two parts of the argument: that this is "war" and the scope of the "battlefield" are each, independently, exceptions which will swallow the whole.

You seem to have forgotten that, beginning immediately after 9/11 and continuing thereafter in both the Bush and Obama administrations, your government has decleared that the entire world is a battlefield in the war on terror. There has been some judicial back and forth on whether this is so, but diregarding any judicial setbacks, the Administrations have continued to hold to that "whole world is a battlefield" construction.

If you adopt the idea that the whole world is a battlefield, you legitimate killing alleged terrorists anywhere on nothing more than an allegation.

As to the "war" idea, that's also a false one which also swallows the whole. The plain text of the AUMF is limited to those people who participated in or assisted the attacks of September 11, 2001. We have made light of the repeated, progressively sillier, claims by the Bush and Obama administrations to having killed this AQ #2 or that AQ #3, followed shortly thereafter by the appearance of another #2 or #3, growing like heads on the Hydra from the stumps of the heads just cut off. As a practical matter, no one seriously argues that, for example, al-Alwaki participated in the attacks of 9/11. He's a second or third generation "new" head on the Hydra. So, as a preliminary matter even if the AUMF was a declaration of war on AQ (itself a debatable point), he's not part of the enemy defined in it and we, therefore, are not at war with him.

But going beyond that, as made clear in the Obama administration's arguments to dismiss the suit seeking an injunction against killing al-Alwaki, they as much as admit the infirmity of the AUMF to support their "War" theory and fall back on that old chestnut of a President's "inherent power".

So in short the admnistration's position is:
The executive branch has the inherent power to, and can, determine who is a terrorist. Anyone, citizen or not, can be designated a terrorist.
This determination is not subject to judicial review or, for that matter, any review anywhere.
The standards we apply in making this determination are secret and need not be disclosed to anyone. Even if they come out in public, we can bar them from being discussed in a courtroom.
Anyone we deem a terrorist, we can kill.
We can do these killings anywhere, any time, by any means and without answering to anyone.
It matters not what the law or constitution says; go back and re-read that whole Fifth Amendment "not deprived of life, liberty or property without due process of law" - it's obsolete now.

The best reason for opposing this, is summed up in one sentence:

If they can do it to him, they can do it to you.

IF you want to come down in favor of such a program, maybe you should check your lawyership and your humanity at the door. You won't be needing them any more.

Non-Sense Argument (5.00 / 1) (#13)
by ScottW714 on Mon Oct 04, 2010 at 02:53:51 PM EST

When declaring war, the President/Congress is essentially ordering assassinations of all enemies and pardoning civilian casualties that result in that directive.

Torture is illegal, yet murdering the same person isn't ? Murder is illegal unless the President/Congress says it's not ? Suicide bombers are bad, but dropping bombs is good ? And on and on with the hypocrisy and delusion of civilized war.

Pretending wars should have rules is about as insane as war itself. Breaking down the particulars is a fruitless act unless you can rationalize the core of war, murder.

I for one cannot, but I am in the minority.

I like this comment (5.00 / 1) (#14)
by Big Tent Democrat on Mon Oct 04, 2010 at 02:55:42 PM EST

Not because I agree, but because it states a view that Greenwald is hinting at but does not state directly.

War is hell and should be illegal. Laws of war are ridiculous.

Glenn needs to be more forthright about this.


I read Greenwald as believing (none / 0) (#18)
by oculus on Mon Oct 04, 2010 at 03:02:57 PM EST

anything U.S. does in the name of fighting terrorism only engenders more terrorism and terrorists.


: That's a policy argument (5.00 / 1) (#28)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:12:03 PM EST

Not a legal one.

In a Country Founded... (none / 0) (#39)
by ScottW714 on Mon Oct 04, 2010 at 04:00:30 PM EST

... on the premise that everyone has inalienable rights, namely the right to life, war just can not be justified without bending and twisting logic beyond it thresholds.

I am not suggesting I have answers, but I just hate when people rationalize an irrational act and then justify it with mind numbing legal mumbo jumbo that a teenager can see through.

To me, it's all or nothing, because death and destruction is main purpose, the rest is really fluff, yet that's were out focus always lays, on the fluff. We ponder the notion of torturing a few far more than we ponder the many dead. It doesn't make sense to me.

Like this story, one guy, an 'enemy'. Yet last week 16 dead Americans, the week before 20, but they get 1/1000 the attention, if even that.

Where's the logic in that?


It is called a decapitation strike (5.00 / 1) (#47)
by Militarytracy on Mon Oct 04, 2010 at 06:06:32 PM EST

because you are killing a head of a group or a leader, not because you are cutting off someone's head or blowing their head off. You intend to or are killing the head of a terrorist group.

Scribe is right (5.00 / 1) (#51)
by Bornagaindem on Tue Oct 05, 2010 at 08:45:07 AM EST

BTD is wrong. The war on terrorism as you (and Bush and Obama) describe it will never end and extends to the entire world. That is simply not something the framers of our constitution envisioned and even so they specifically took away the power to declare war from the executive. It is a cop out to call the war on terror a war and therefore declare the president has essentially unlimited powers because of it. That is quite a coup if you can get away with it.

What is hard for BTD to understand about the guarantee in the constitution that says there cannot be deprivation of "life or liberty . . . without due process of law? Even Ex parte Quirin [1942] held that a court had condemned those people- something this administration will not allow for Awlaki.

Some americans are not shaking in their boots over some threat by a few nuts and understand the threat is in reality no worse than driving on our highways and we are not willing to see our rights eroded forever by this unending "war on terror". Make no mistake this "war" will never end and we will not tolerate a blatant grab for power even if it is by a democrat.

Those who are willing to give up their freedom for a little security deserve neither.

Talkleft defending murder and state terrorism (1.00 / 1) (#3)
by Andreas on Mon Oct 04, 2010 at 02:06:09 PM EST

Assassinations of citizens in the United States is unconstitutional.

A fine understatement.

Normal people who "assassinate" other people are usually called murderers or terrorists. And normal people also consider murder a crime and think that those responsible should be punished appropriately (better: prevented from committing such crimes).

But obviously things are different for significant parts of the "Democratic" Party when the murderer and terrorist is a "Democratic" President.

: Well (5.00 / 1) (#4)
by Big Tent Democrat on Mon Oct 04, 2010 at 02:17:47 PM EST

I did not take a different view of the law when Bush was President on this issue.
I do take a different view of it on policy grounds.
Just because something is lawful does not mean it is the right thing to do.

Does U.S. have an extradition treaty (none / 0) (#5)
by oculus on Mon Oct 04, 2010 at 02:24:37 PM EST

wiht Yemen? Why not charge Al-Awiki in U.S. federal court with criminal conspiracy?

No (none / 0) (#6)
by Big Tent Democrat on Mon Oct 04, 2010 at 02:26:31 PM EST

U.S. has no extradition treaty (none / 0) (#7)
by oculus on Mon Oct 04, 2010 at 02:33:29 PM EST

w/Yemen: link


I thought the link was (none / 0) (#10)
by Big Tent Democrat on Mon Oct 04, 2010 at 02:48:41 PM EST

to my comment #6. Don't trust me?


: You definitely don't speak for (none / 0) (#16)
by oculus on Mon Oct 04, 2010 at 03:01:38 PM EST

me on this issue! But, while you were posting, I was googling.

Making Greenwald's Argument For Him (none / 0) (#8)
by scottbloom on Mon Oct 04, 2010 at 02:41:22 PM EST

If all the president has to do is say generically we're at war and declare everywhere a battlefield to trump the constitution, what the hell is it worth? You're just inviting the easy, painless aggrandizement of executive power with a blithe wave of the hand. Much below your usual standard.

The Congress said we are at war (none / 0) (#9)
by Big Tent Democrat on Mon Oct 04, 2010 at 02:48:00 PM EST

The President can't.

I'll grant you that I did not cover all the old ground as thoroughly as I usually do in these posts.

I did not have time for my usual 3500 word post on these issues.


We can be sure that the AUMF (none / 0) (#11)
by andgarden on Mon Oct 04, 2010 at 02:50:16 PM EST

authorizes war in Afghanistan. Beyond that is a matter of some debate.


Actually not (5.00 / 1) (#29)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:13:23 PM EST

The 2001 AUMF is quite expansive. There is no plausible debate that the President is empowered by the 2001 AUMF to attack Al Qaida in Yemen.

Whether that conforms to international law or not IS subject to debate.


The expansiveness is the problem (none / 0) (#30)
by andgarden on Mon Oct 04, 2010 at 03:16:53 PM EST

Just as Congress likely can't establish an Agency to run America, so too can't it authorize war with anyone, in any place, at any time.

I read the AUMF to apply to Al Qaeda and its supporters and associates. That might extend to Yemen, Pakistan, or even Somalia and Sudan. But not, without specific linking evidence, e.g., Mexico.


Sure it can (none / 0) (#31)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:20:32 PM EST

Congress can authorize belligerence against anyone it wants to.

See what I'm getting athere? The problem here is not an expansion of Executive power.

The problem is abdication of Congressional power to the Executive on matters of war and foreign policy.

This is what the FISA debate was all about.

I wish people would see THIS policy through that prism.

Rewrite the AUMF if you want to make the President's actions illegal.

A better idea is to make it unpalatable politically for him.

But hey, he's better than the Republicans so . . . (the fallacy of the STFU argument for the LEft Flank. This is why I LOVE that Greenwald is out there yelling about this.)


I actually don't disagree with you (none / 0) (#37)
by andgarden on Mon Oct 04, 2010 at 03:38:10 PM EST

except, I gather, to the limited question of how one should read the AUMF. It probably goes without saying that whatever the AUMF authorizes, the Congress ultimately retains subpoena power and the power of the purse.


The more interesting legal question (none / 0) (#38)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:59:14 PM EST

can the Congress repeal the AUMF without the President's signature?

I wrote about that a while ago and I forget what I thought the answer was.


I don't see how that's a hard question (none / 0) (#40)
by andgarden on Mon Oct 04, 2010 at 04:06:47 PM EST

Repeal would be just like any other piece of legislation: bicameralism and presentment. If the President vetoes, override (like the War Powers Act, actually).

Other than that, they can refuse to fund (as you know well).

The curious thing about the AUMF is that it doesn't sunset (IIRC), and it will never be quite obvious when we "win" the war it authorizes. I can imagine a situation 100 years down the road where a President tries to justify some executive action based on the AUMF, and a court has to actually determine if the WoT is still ongoing.


If, as reported, the people threatening (none / 0) (#45)
by oculus on Mon Oct 04, 2010 at 05:27:14 PM EST

security in Europe at present are part of a Hamburg cell, does the AUMF give the President discretion to send drones to Hamburg?


: It might well (none / 0) (#46)
by andgarden on Mon Oct 04, 2010 at 05:42:37 PM EST

That doesn't make it politically feasible, though--or even tactically wise.

Not Pakistan? (none / 0) (#12)
by oculus on Mon Oct 04, 2010 at 02:52:26 PM EST

: Probably Pakistan (none / 0) (#19)
by andgarden on Mon Oct 04, 2010 at 03:02:57 PM EST

But as a practical matter, the authorization is subject to the spending power.

Was AUMF a formal (none / 0) (#22)
by gyrfalcon on Mon Oct 04, 2010 at 03:05:25 PM EST

declaration of war? I don't believe it was.

If Congress would do its duty on war declarations, at least we'd have some place to start from other than "Because I said so."

I'm conflicted on this whole question. I'm certainly not persuaded that targeted drone strikes, aka assassinations, are inherently less moral than wiping out vast numbers of people on both sides in an attempt to get at "enemy" leadership in a more conventional way. And to pretend that decapitation hasn't been a key object of war since time immemorial makes no sense.

I don't like any of it, but since we're not going to be through with war-fighting for the next few centuries, at best, I'd like some basic guidelines.


: Everyone pretty much agrees (none / 0) (#24)
by andgarden on Mon Oct 04, 2010 at 03:09:56 PM EST

that it's legal to go to war without a formal declaration. Most people also agree that the President can't start a full-scale war without Congressional authorization of some kind. The question is where you set the boundary.
The War Powers Act purports to assert a substantial Congressional role in almost every conceivable conflict. The AUMF sidesteps the issue.

I'm with Greenwald ... (none / 0) (#15)
by Robot Porter on Mon Oct 04, 2010 at 02:57:43 PM EST

I think the defense of such policies is ridiculous.

But it's more evidence that the irrational fear of terrorism makes people do and say irrational things.

It has always puzzled me how worked up (none / 0) (#17)
by Slado on Mon Oct 04, 2010 at 03:02:31 PM EST

people got about "torture" but the assassinations by drones of terrorists, enemy combatants and the inevitable innocent civilians goes on without much comment or fan fare.

While legally there is an arguable difference to me it seems foolish to go so crazy about the moral implications of roughing up a terrorist while our government routinely evaporates them from the sky with hell fire missiles.

I always wonder (5.00 / 3) (#26)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:10:57 PM EST

at the inability of people not understanding the concept of good treatment for prisoners.

It's like the Geneva Conventions mean nothing to them and they have no conception of why they were created.

Strange indeed.


I'm pointing out that the (none / 0) (#42)
by Slado on Mon Oct 04, 2010 at 04:48:05 PM EST

argument against "torture" when Bush was president was a moral one.

To me that argument is rendered hypocritical when you consider the fact that our government routinely executes non combatants with no trial or jury.

Parsing of the legal code to explain away this moral imbiguity to me seems silly.

I'm consitent with many reservations. It is war, but not a war that the Geneva convention can be applied to.

It is war against an enemy that does not meet us fairly on the battlefield and a conservative legal expert has and will argue that our "torture" of KSM and others did not violate legal rules, blah, blah, blah.

To me it's a moral question and I'm consistent. We didn't choose this war, they did, and I ultimately have reasoned that we will have to bend the rules and play a little dirty to win it.

Surprisingly Obama appears to have come to the same conclusion once in office.


Your point is wrong (none / 0) (#43)
by Big Tent Democrat on Mon Oct 04, 2010 at 04:56:23 PM EST

It was both moral and legal.

Torture is a war crime.

It is also a crime under US law.


: Murder is a crime (none / 0) (#44)
by Andreas on Mon Oct 04, 2010 at 05:07:35 PM EST

Murder is a crime under US law. The President is not above the law. More precisely: he should not be. But the Democrats have a different position. That is one of the reasons why the other main war criminal George Walker Bush also is still in freedom.

Your position seems to boil down to (none / 0) (#49)
by gyrfalcon on Mon Oct 04, 2010 at 11:03:13 PM EST

"An eye for an eye." Honestly, I don't want to live in a society where our behavior is dependent on "their" behavior and we allow them to drag us down to their level. "Nyah, nyah, they did it first!" isn't to me a good moral guidepost.

And that's quite apart from the practical issues involved.

I rather agree that I don't much care what miseries KSM suffers. What I do care about is what we do to ourselves by engaging in and approving such things. I don't know about you, but I grew up being taught and believing that we were better than pretty much everyone else in terms of civilized behavior. That to me was always what "American exceptionalism" meant.


Good point. No mention as to how (none / 0) (#20)
by oculus on Mon Oct 04, 2010 at 03:04:00 PM EST

many people are offed by the drone that purportedly took out a king pin.


: How many people would be offed (none / 0) (#48)
by gyrfalcon on Mon Oct 04, 2010 at 10:49:38 PM EST

if regular ground troops and manned aircraft had to fight their way into and take out the target?
And even if it's just manned aircraft and no ground troops, given the technological disparity between the U.S. and a bunch of Taliban hiding in some village, I'm not sure how much "moral" difference there actually is between manned aircraft and unmanned drones.
As I say, I'm seriously conflicted by all of this, but I wonder whether the degree of carnage involved is a good place from which to argue against drone attacks since it seems to me it's considerably less than the alternatives.

You know, there's something to that (none / 0) (#21)
by andgarden on Mon Oct 04, 2010 at 03:04:19 PM EST

consider this, though: Guantanamo is more controversial than Bagram for a reason.


What is also fascinating (none / 0) (#23)
by Slado on Mon Oct 04, 2010 at 03:06:53 PM EST

is that on Obama's watch he's not only continued drone attacks but stepped them up.

But we don't torture. You can be sure of that.

We just make giant holes in the ground with little pieces of terrorists sprinkled inside of them.


Let me be clear (none / 0) (#25)
by Slado on Mon Oct 04, 2010 at 03:10:42 PM EST

I support drone attacks and "torture" in as much as I'd draw the line much farther in the torture direction them most on this site.

But for all the media attention and hoopla given to "torture" it is pretty ironic how little attention is given to the practice of the CIA and military killing people that "intelligence" says are terrorists and up to no good.


No moral issues for you then (none / 0) (#27)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:11:31 PM EST

: Oh there is (none / 0) (#41)
by Slado on Mon Oct 04, 2010 at 04:41:51 PM EST

I worry that my "support" is misplaced and that we could have avoided all this by not Abandoning Afghanistan in the first place, etc... etc...
However the choices before us no matter how much we are culpable where thrust upon us by a morally bankrupt movement that seeks our destruction. The soldiers of that movement are true believers for the most part and not simply foot soldiers.
It is for these reasons hat I will not shed tears for what normally would be inexcusable. I simply can't make myself care that KSM was roughed up during his interrogation. Not when he would have cut off my head if he had me in a similar situation.
War is horrible and "torture" of non combatants was excusable in certain circumstances and an enemy that refuses to meet us on the battlefield has to be treated differently with drone strikes.
Lots of second thoughts though.
Glad I'm not president.

Not one of your best efforts (none / 0) (#32)
by Maryb2004 on Mon Oct 04, 2010 at 03:21:09 PM EST

Really. You're all over the place here.

Your point seems to be that, if an assassination takes place on the battlefield then it's an easy legal question because assassination is legal on the battlefield, including assassinations of your own citizens who in the sole opinion of the President are aiding the enemy.

Lincoln should have thought to have assassinated George McClellan.

Would that have been legal?

Admittedly (5.00 / 1) (#33)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:24:16 PM EST

Not a comprehensive effort.

I'm busy helping the little guy in Florida against the mean banksters and their foreclosure mills (an obvious ploy for sympathy here.)


heh (none / 0) (#34)
by Maryb2004 on Mon Oct 04, 2010 at 03:29:08 PM EST

But I'm hard and cruel. And I even represent banks sometimes.


: Shhhhh (none / 0) (#36)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:34:26 PM EST

Me too.

We assassinated Admiral Yamamoto (none / 0) (#35)
by MKS on Mon Oct 04, 2010 at 03:33:32 PM EST

in WWII.

It was in a theater of war....But he was flying in a transport plane and we had specifically targeted him.

The "battlefield" cannot be the whole world....Yemen seems very far afield indeed.

If we can capture various leaders, that should be what is done.

Abducting and then trying Eichmann is the better model--although there were legal questions about jusrisdiction via kidnapping......

: Yemen hasn't been (none / 0) (#50)
by gyrfalcon on Mon Oct 04, 2010 at 11:05:04 PM EST

"far afield" in all this for a number of years. That's the whole problem with non-state actors. They don't oblige us by staying in the same place until we go get 'em.

: Abducting and trying Eichmann... (none / 0) (#53)
by seanwright on Wed Oct 06, 2010 at 05:16:59 PM EST

...was extraordinary rendition. Not without controversy.

I haven't commented here in a long time. (none / 0) (#52)
by seanwright on Wed Oct 06, 2010 at 05:12:55 PM EST

In my opinion you hit the nail on the head with this one BTD. It seems to me that Greenwald has decided that arguing the actual legal issues would not bring the sort of attention to the issues or create the visceral reaction that he wants. So instead he frames the issue as: The President has claimed the power to assassinate (when he's feeling charitable) or execute (when his dander's up) any American citizen anywhere in the world without due process. That get's people's attention. Nevermind that the President hasn't actually claimed that authority. And never mind that the single incident that the policy is being extrapolated from is one in which an individual has taken up residence in a lawless region of Yemen from which he has released many pro-Qaeda statements urging other muslims to take up arms against the United States.

You are absolutely correct. The wisdom of the policy of engaging in targeted killing of al Qaeda in Yemen is dubious, but it is clearly a constitutional exercise of presidential power.

One issue I would take, however is your categorical statement that the capture or kill orders are not illegal. I think that whether or not they are legal under the international laws of war is an open question.