A look at an enemy of America, and a discussion about the execution of al-Awlaki

Summary:  Any attempts to reform America’s political system quickly encounters an enemy:   our lack of shared view of the world.  Not just the differences in values that divide most societies.  Americans have not only different opinions, but years of intense propaganda have given us different facts.  They’ve become totems of tribal identity, held with fanatic intensity by groups within America.  It’s a useful tool for our ruling elites, preventing communication between people of good will which might otherwise lead to collective action.  Here we look at an example of this process in action, concerning the execution of al Awlaki.

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As has been proven many times in history, aggressive lies provide one of the most powerful tools to control a people.  Effective lies match people’s biases and fears, so people easily believe them — despite contrary evidence.  At some point Americans became unusually vulnerable to this method of control, as explained in Our leaders have made a discovery of the sort that changes the destiny of nations, The easy way to rule: leading a weak people by feeding them disinformation, and Programs to reshape the American mind, run by the left and right.  The barriers this creates has become one of our great enemies.

On the Left we have a wide range of misinformation (my favorite — Earth will become just like Venus!)  See the posts at the end, accounts of discussions with climate change fanatics — immunized against facts.  On the Right we have faux economics (see these posts) and the War on Terror, both largely supported by lies.

On the FM website and by email I have had hundreds of such discussions during the past 5 years.  Mostly about simple facts trumped by the need to maintain tribal identity (such as Listen to the voice of America’s decline. Can we bring these people into the 21st Century?  Today we look at a comment by Staunch lifted from Watch the Constitution die right now as we burn a 2452 year old vital legal precedent (about the government’s secret rulings condemning al-Awlaki to death.  My guess is a well-meaning and patriotic person who relys on sources which lie to him about simple matters of fact.

Great legal analysis, except for the fact there is none.

There is nothing that prevents the US from killing its enemies at a time of war, whether they are citizens or not. Forget the fact the Mr. Al-Awalki renounced his citizenship because that is irrelevant. If he wanted to subject himself under US due process he had every right to do so. All he needed to do is avail himself to US jurisdiction. They would have gladly taken him in and put him on trial. Instead, he lived in Yemen and directed terrorist activities against the US.

During the Civil War, US soldiers killed confederate US citizens. During the WWII, there were several instances of US citizens of german and italian decent who either went back to Europe to fight the US or were performing spy operations here. No legal precedent ever required the government to seek a warrant for these peoples arrest nor has any legitimate legal theory ever held that the government could not kill people who have declared war against it.

You are filled with righteous indignation and you do not cite one sentence, not one line, not one word from the Constitution or case law to back up your assertions.

As per SOP on the FM website, we’ll examine this line by line.  Note his response in the comments, displaying the same characteristics displayed here.

(1)  “Forget the fact the Mr. Al-Awalki renounced his citizenship”

We can forget it because is a lie (no matter how frequently repeated). Al-Awlaki did not do so.

(2)  “If he wanted to subject himself under US due process he had every right to do so.”

An American citizenship FAIL. It’s the government’s role to bring charges against citizens. Only then do citizens have an obligation to respond. Al Awlaki was never charged with a crime.

(3)  “They would have gladly taken him in and put him on trial.”

Another citizenship FAIL.  The government could have charged al Awlaki with a crime (his location was irrelevant). They did not do so, therefore they could not legally “take him in and put him on trial.”

(4)  “and directed terrorist activities against the US.”

Here we see the essence of a subject rather than a free citizen: belief that the government says al Awlaki committed crimes, therefore he is guilty and deserves punishment. QED. This is astonishing blindness given the frequency with which the government has lied to us.

(5)  “During the Civil War, US soldiers killed confederate US citizens”

This is a double FAIL.  First, it ignores the difference between a state of rebellion and giving sermons (which is all we know Awlaki did).

Second, US soldiers were authorized to kill Confederates only on the battlefield or after trials.  President Lincoln signed General Order 100 on 24 April 1863 — the Instructions for the Government of Armies of the United States in the Field (aka the Lieber Code; go here for the textsee Wikipedia for details). Section IX, “Assassination”, says:

The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.

(6)  “During the WWII,  there were several instances of US citizens of german and italian decent who either went back to Europe to fight the US or were performing spy operations here.”

Again, false.  Such people were charged and given trials, other than those killed on the battlefield. They were not executed on the basis of unsupported government claims.  For example, the German saboteurs of Operation Pastorius (see Wikipedia) in 1942, landed in NY and Florida — including 2 US citizens.

 All 8 were put on trial before a seven-member military tribunal … Lawyers for the accused attempted to have the case tried in a civilian court but were rebuffed by the Supreme Court of the United States in Ex parte Quirin, a case that was later cited as a precedent for the trial by military commission of any unlawful combatant against the United States. … All 8 defendants were found guilty and sentenced to death. Roosevelt commuted Burger’s sentence to life and Dasch’s to 30 years, because they had turned themselves in and provided information about the others. The others were executed on 8 August 1942 … In 1948 President Truman granted executive clemency to Dasch and Burger on the condition that they be deported to the American Zone of occupied Germany.

(7)  “No legal precedent ever required the government to seek a warrant for these peoples arrest nor has any legitimate legal theory ever held that the government could not kill people who have declared war against it.”

Another citizenship FAIL.  There is no legal basis for the belief that a US citizen can “declare war” against the US. Citizens can commit crimes (up to and including treason) for which they must be charged — unless found in active commission of a crime under circumstances allowing government agents to reply with deadly force.

Regulations govern striping an America of his citizenship (listed on the State Department website).  The government elected not to do so to al Awlaki.

(8)  “you do not cite one sentence, not one line, not one word from the Constitution or case law to back up your assertions.”

This post discusses the process by which Awalki was executed, the secret laws and death sentences by secret panels — a violation of principles going back to Rome. The most important being the 5th amendment:

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 case arising in the land or naval forces, on in the Militia, when in actual service in time of War or public danger … nor be deprived of life, liberty, or property without due process of law …

This rule has been followed by the USA since the Founding, even during the extreme circumstances of wartime — even extended to non-citizens captured off the battlefield. For example, at the Nuremberg War Crime Trials.

Other posts about the US government’s assassination programs

For more about this problem in America see Facts are an obstacle to the reform of America.

For more about Anwar al-Awlaki:  Excerpts from the court ruling about the challenge to the government’s right to kill him.

The key post in this series:  James Bond is not just our hero, but the model for our geopolitical strategy, 18 May 2009.

Other posts about our assassination programs:

  1. “Filling the skies with Assassins” by Tom Engelhardt, 12 April 2009
  2. America’s dominance of the sky slowly erodes – inevitable or avoidable?, 22 September 2009
  3. The march of technology brings “The Forty-Year Drone War”, 26 January 2010
  4. Stratfor looks at “The Utility of Assassination”, 26 February 2010
  5. Code red! The Constitution is burning., 5 August 2010
  6. An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
  7. The biggest re-branding exercise in the history of the world, 21 August 2010 — A new image for America.
  8. America plays the Apollo Option: killing from the sky, Chet Richards, 26 August 2010
  9. Every day the Constitution dies a little more, 1 September 2010
  10. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
  11. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010
  12. Killing the leaders of our enemy. Is this the fast track to victory – or disaster?, 25 October 2010

Posts debating climate change

  1. A reply to comments on FM site about Global Warming, 17 November 2008
  2. Is anthropogenic global warming a scientific debate, or a matter of religious belief?, 22 November 2008
  3. Another pro-global warming comment, effective PR at work!, 1 December 2008
  4. The definitive rebuttal to skepticism about global warming!, 10 December 2008
  5. High school science facts prove global warming! Skeptical scientists humiliated by this revelation!, 31 December 2008

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32 thoughts on “A look at an enemy of America, and a discussion about the execution of al-Awlaki

  1. Couple of brief points

    1) The reason why Al-Awlaki wasn’t brought up on charges prior were two fold (a) the government wants to sustain a clear distinction between responses to criminal actions and responses to military actions, and (b) getting a formal warrant for arrest would have likely exposed certain sensitive intelligence information. If the government did bring up charges and Al-Awlaki did not avail himself to US jurisdiction, would it then be OK to target him on a battlefield, under your reasoning?

    2) Al-Qaeda doesn’t commit crimes. Al-Qaeda commits acts of war. The standard is completely different. As has been recently quoted around from Ex Parte Quirin. “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences”. If as a citizen, you conduct military operations against the US, you are not shielded from the consequences of the US military attempting to stop you from continuing those operations, even if deadly force is used. This case held that US citizens could be tried in a military tribunal. The same reasoning applies for citizens killed on the battlefield. See also, Hamdi v. Rumsfeld, “A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States.”

    3) “The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by **any captor**, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.”

    This is clearly a rule against murder while in captivitiy via either bounty or other means. This is not applicable here. The US military actively sought the killing of Admiral Yomomoto during WWII, and no doubt would have killed General Lee if the opportunity availed itself and capture was not possible. Killing an enemy in war is not assassination.

    There is plenty of public evidence against Al-Awlaki that connects him to Al Qaeda and terrorist operations against the US military and domestic terrorist oprations. I am sure there is additional evidence the government holds. If there is enough evidence that the military can reasonably believe he is a member of Al-Qaeda, and we are at war with Al-Qaeda, then we have every right to engage in any operation against him so long as he remains overseas.

    1. You are merely restating the errors in your initial comment, which is my point — the tribal-like adherence to beliefs in the face of contrary evidence. That’s more important than the specific debate. Your repsonse provides additional examples of this problem.

      (1) Belief that whatever the government says is correct. And that the government can act on its beliefs (often proven false when exposed to public view) even to the extent of executing an American citizen. As we saw in the Anthrax attacks, confident accusations against a US citizen (eg, Hatfeld) were proven to be false. Imagine if the US had just executed him; we’d never know his innocence.

      (2) The ability to ignore evidence that your statements are in error (eg, that al Awlaki had renounced his citizenship). That your source lie to you does not diminish your confidence in them. Nor do you admit errors, even when proven false (while less serious than confidence in bad sources, it makes discussion difficult).

      As most of this repeats errors of your original comment, there’s no point in repeating what’s in the post. There are a few points worth noting.

      (a) “would it then be OK to target him on a battlefield, under your reasoning?”

      As everyone involved in these has said ten thousand times, it’s different on an actual battlefield. Note that this was the original claim for US executions and abductions (eg, of those kept in US and allied prisions) — they were guilty because taken on “the battlefield.” It was years before this lie was dispelled. As you show, this continues to surface — now as chaff in the discussion.

      (b) “Al-Qaeda doesn’t commit crimes. Al-Qaeda commits acts of war.”

      That is a different debate. AQ is not a State, and many believe (me, among them) that the “war” metaphor makes our response to them less effective. Note that the most effective responses that wrecked AQ were those of police and security services, using tools and methods used against organized crime. Our wars have largely acted as recruiting programs for jihadists (spawning the creation of nationalistic movements using the AQ brand-name). They had little effect against AQ — since it was not involved in them.

      Second, we’re discussing acts by a US citizen. We have no public evidence he committed any acts of war. You ignore this, the central question.

      (c) “If as a citizen, you conduct military operations against the US”

      Yes, that’s obvious. It’s also irrelevant (ie, since not proven), no matter how many times you repeat it.

      (d) “you are not shielded from the consequences of the US military attempting to stop you from continuing those operations, even if deadly force is used … The same reasoning applies for citizens killed on the battlefield. ”

      I explicitly noted this point in my response. It is totally irrelevant to the execution of Awlaki. What’s the point of repeating it? It’s statements like this that give your responses their fanatic-like aspect.

      (e) “A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States.”

      Does anyone dispute this? Then why say it? That a citizen “can be” does not mean that a specific citizen “is.” That’s why we have trials, unless found on the battlefield (prima facie evidence).

      (f) “The US military actively sought the killing of Admiral Yomomoto”

      The Admiral was a uniformed member of the armed services of a State with whom the US was at war. There is zero analogy with a US citizen giving sermons that denounce US government policies, against whom the US government made allegations, executed while driving. Again, your inability to see this distinction suggests the kind of thinking associated with fanaticism or religion. As discussed in this post, it makes meaningful discussion difficult or impossible.

      (g) “This is clearly a rule against murder while in captivitiy via either bounty or other means.”

      Saying execution of captives is wrong does not mean that executing people (off the battlefield) without capture is OK. That’s a daft interpretation. Also note the last line: “Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.”

      (h) “There is plenty of public evidence against Al-Awlaki that connects him to Al Qaeda and terrorist operations against the US military and domestic terrorist oprations.”

      Like so much of your initial comment (which your response ignores), that’s false.

      (i) “I am sure there is additional evidence the government holds.”

      Of course you are. You show unquestioning belief in statements of government, and approval of government actions that have no precedent in US history. It’s the mindset of a subject, not a citizen. This does not mean that you are bad, stupid, unpatriotic — or any of the prejorativess thrown abound in in such debates. However, IMO the large number of people with your beliefs weakens the already tottering Republic.

    2. @Staunch – if what the US did to Awlaki was an “act of war” then it was a war crime because non-military target civilians were also killed. The Geneva Convention and the protocols that the US is signatory to, make it clear that avoiding civilian casualties is paramount. Furthermore, the Bush administration already made the argument that those captured in “the war on terror” do not have the rights of enemy combatants under the Geneva Convention. You can’t have it both ways – either they’re enemy combatants or they’re criminals; justice is not a “have it your way” buffet menu.

  2. That was a long response. Here are the major points:

    (1) We have trials because determing guilt is difficult.

    Consider the case of Hatfill, accused of terrorism — the September 2001 anthrax attacks. The case told to the public consisted of two elements, and seemed beyond doubt (far stronger than the case against Awlaki).

    1. Strong government assurances of his guilt, largely based on non-public evidence.
    2. Public circumstantial evidence.

    We now know the first was mostly lies. As for the last, we learned again the wisdom of Sherlock Holmers (familiar to attorneys and Judges):

    “Circumstantial evidence is a very tricky thing. It may seem to point very straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different.” {The Boscome Valley Mystery}

    The government now admits he is innocent, and paid $4.6 million in damages. If the government had executed him without trial we’d still believe his guilt.

    (2) What kills a Republic?

    When enough people regard themselves as subjects of the government, rather than citizens, then the Republic has died. Regime change will inevitably follow. My guess is that we’re nearing that point. The usual candidates are people who see the government as patron, living off its grants. That’s so, but another type is equally dangerous: people who see the government as their masters. Government words are truth; government decisions are just and binding; our role is to obey.

    (3) About debates with true believers

    The dinstinguishing characteristic of these, seen in hundreds of cases in comments on the FM website, is refusal to acknowledge facts. Rebuttal facts are ignored; each response consists mostly of new misinformation, increasingly absurd — obtained from the same sources that provided initial false information.

    The doctrines of Left (climate change) and Right have become to a large extent complex interlocking webs of lies. True believers can consume vast amounts of time citing layer upon layer of myths and misrepresentation, all the while ignoring contrary data.

    The latter is the key aspect. Belief in these edifices of fiction is the totem of membership, so they no brick can be questioned without risking the entire structure. At the end of this post are links to discussions about climate change which illustrate these traits to an almost deranged extent.

    Both sides of the American political spectrum have become dominated by true believers. I don’t see an exit from this situation. Perhaps time will open new paths to understanding and agreement.

  3. I suppose that a reasonable thing would have been for the government to try to charge him, in absentia. I wonder what the charges would look like? Conspiracy to commit murder? It sounds like that would be hard to prove. Speaking against the government? I do that. It’s a citizen’s duty to do that.

    The notion that “government wants to sustain a clear distinction between responses to criminal actions and responses to military actions” is interesting. We are not in a state of war with Awlaki, either. I suppose that the idea of an individual declaring war on a country makes sense – but the notion of a country declaring war on an individual seems a bit sketchy.

    The litmus test that I apply to the acts of the powerful is based on whether or not they would permit those same actions against themselves. (A derivation of Kant’s categorical imperative) So when I see our government decide it’s OK to skip a trial and go straight to extraterritorial assassination, I wonder “why is the US government complaining about alleged Iranian attempts to assassinate a Saudi Arabian citizen on US soil?” Apparently, such things are fair game if you’re the US but not if your Iran? Presumably the other diners in the restaurant where Adel Al-Jubeir was going to be killed with a bomb would have been just as upset as the bystanders at Awlaki’s assassination by hellfire missile. I am not trying to draw a “false moral equivalency” here this is a moral equivalency.

    Furthermore, no matter how you want to parse and slice it, Awlaki was not the only victim – there were bystanders. Note, I do not say “innocent bystanders” because one of the three other dead apparently was a blogger. And there were two other people injured. Does this now justify the Yemeni government in establishing a secret panel to decide who in the US was responsible, and send a drone over to kill them?

    “Might makes right” is a great policy as long as you’re the mighty. Will we whine and snivel when we fall from power and someone else’s boot is on our face?

  4. “The US military actively sought the killing of Admiral Yomomoto”

    Yamamoto was flying in a military aircraft (a bomber) when he was shot down. He was probably in uniform, too. I think that’s all that needs to be said about that.

    1. That is an important point. Yamamoto was in a Mitsubishi G4M1 Betty (a 2-engine bomber), escorted by Zeros. The comparison to a civilian driving in a civilian car is the type of analogy made by people desperate to justify government actions, without regard of fact or logic.

  5. Is that Venus the goddess or Venus tennis player or Venus the planet?

    Anyway, since this site seems to demand sources, here’s some material related to the second set of references at the end of the original post:

    For a sound scientific explanation of how the atmosphere, including solar heating, works, see chapter seven in this simplified online textbook “Fundamentals of Physical Geography” by Dr. Michael Pidwirny of the University of British Columbia:

    For a look at an admirable compilation of a large number of peer reviewed scientists on climate change, everyone ought to read and consider “Climate Change: Observed impacts on Planet Earth,” edited by Trevor Letcher.

    1. Please stay on topic. There are dozens of posts discussing this complex and multi-faceted topic — but this is not one. The point of mentioning beliefs about the climate was to reference posts discussing the occurrence of this phenomenon on the Left as well as Right (the accuracy of professional work on climate science is irrelevant to this point).

      Also, this is daft — introducing basic texts in response to discussions (ref in the links at the end) whose topics I suspect are unknown to you. It’s a silly stunt — as in “I don’t know what you believe, but the library refutes you.”

      For a more useful set of references see these FM reference pages on the right-side menu bar:

      1. Science & Climate – studies and reports — Sorted by subject, mostly peer-reviewed
      2. Science & Climate – the history of fears about the climate
      3. Science & Climate – general media articles
      4. Science & Climate – FM articles
    2. BTW – you did not reference the most relevant chapter of Pidwirny’s Physical Geography (perhaps you should re-read it). Section f of chapter 7 “Atmospheric Effects on Incoming Solar Radiation“. This discusses several of the key variables in the debate about anthropolic global warming: changes in the earth’s albedo (eg, from changes in ice area and land use) and IMPORTANTLY feedback effects from changes in the atmosphere content of water. The later is perhaps the single major unknown — the extent of heating accelleration from increased water vapor (and effect far larger than increased co2) offset by clouds. The have been several papers recently debating the latter factor.

      My guess (based solely on similar comments from other people) is that Cirigliano is probably a good Green, and hence quite ignorant of the actual debate about these issues. Much like Staunch, his sources reveal Truth, which he does not question.

    3. A reader has said that my reply to Marc A. Cirigliano was rude. Perhaps so.

      Posts take hours to write. I try to respond to most of the people who take the time to comment here, but time limitations allow only seconds to do so. So some comments are intemperate in tone.

      Nor have I a set policy for responding. By design, the content of the FM site gives non-consensus analysis of controversial topics. No surprise that the majority of the 17 thousand comments are some form of rebuttal or criticism. Many are hostile, many mocking or derisive in tone.

      How to reply to these? I try for a detached objective tone. But that’s difficult and often boring. Sometimes I reply “tit for tat”. Sometimes derisively. It’s not the high road, which is the best course — as all who have studied 4GW know. But at some level we are all weak.

  6. One minor quibble with Marcus J. Ranum. He states, “The Geneva Convention and the protocols that the US is signatory to, make it clear that avoiding civilian casualties is paramount.”

    This is false. Avoiding civilian causalities is not “paramount.” Otherwise, belligerent armies could all just include a few civilian human shields to avoid attack.

    Death of civilians in a military action is not a war crime unless they are directly targeted or the incidental civilian causalities would be clearly excessive in relation to the anticipated military advantage. I suggest that commenter Ranum read up on the Principle of Proportionality, which is codified in International Law and the Law of War, as well as in the obligations stemming from the Geneva and Hague treaties.

    To the broader issues, there is just something inherently wrong about our Executive deciding which citizen to designate for vaporization and then keeping secret the evidence, the process, and the justification for its constitutionality, claiming that this is a war power granted by Congress, without the slightest review or check on its abuse. It stinks of tyranny.

    1. Thanks for raising this. It’s marginal to the point of the discussion, but important to know. The whole “minimize civilian deaths” gig became pretty much null and void during the 20th century.

      For example, US military and civilian leaders loudly condemned strategic bombing of cities — until we did it. Big scale, irrespective of any direct military benefit.

      It’s one of the few but large ways in which western civilization has regressed from what we were (offset in many more ways by progress, of course).

    2. I agree that the Geneva Conventions are more honored in the media than on the battlefield. There is also, for what it’s worth, rules against use of human shields. If the argument is “two wrongs make a right” I don’t want to be on either side of that discussion.

      I’m familiar with the principle of portionality. It applies in more than just a military context, as I am sure you know. In the civilian world that comes to “the punishment should fit the crime” – but I suspect you’re referring to the military sense, which amounts to a get out of jail free card for those who want to assert military necessity. As it appears, there were harrier jets and a boots on the ground strike force within calling distance when Awlaki was killed (1) So was a shot that included civilian casualties a military necessity? Or was it convenience? I’m OK with asking the talented members of the USMC to do what they do best – run risks and accomplish missions – if one of the things they are defending is the US moral high ground. Of course, that battle was lost a while ago, wasn’t it?

      One can attempt to justify virtually any crime as a “military necessity” in an age of total warfare if, in doing so, you’re willing to throw away any of the ways of distinguishing the “good guys” who rain random death from the skies from the “terrorists” who rain random death from the skies.

      (1) “Al-Awlaki strike plan included jets, special ops“, CBS, 30 September 2011

  7. What trial? The one after few weeks of torture? Water-boarding for breakfast, for lunch maybe few cuts here and there, and pleasant dinner of electrocution? Why don’t you guys teach these psychopaths in DC to play with their penises or other way to distract themselves from sadistic urges? They should be hospitalized, you let them ‘run’ the country. And on top of that they believe their destiny is to rule the world.. Send them on some uninhabited island, it will take less then three days to cut each-other throats.

  8. I think we’ve gotten confused between the forest and the trees here. Obviously, we have different premises that lead us to different conclusions. My original objection from the post a few days back is this statement that the constitution is dying because of killing of Al-Awlaki as an American citizen. My contention is the the military targeting and killing an American citizen is perfectly legal under the constitution. It appears that most of your argument is that either (a) it is not legal or (b) he’s not a military target. So forget about him for now, (but I will get back to him) because using a real figure adds all sorts of secondary and tertiary information that obfuscates first principles. Instead, lets do a hypothetical of Mr. X. I would like to hear your answer, but I will give my own first.

    Hypo:
    Mr. X is an American citizen. Mr. X, moved to foreign country A many years ago. In foreign country A, Mr. X had joined an organization that, amongst other objectives, had the objective of frustrating American foreign policy, attacking and killing American soldiers, and attacking and killing American citizens. The USA government is given authority to attack, defend, and frustrate said organization. Mr. X reaches a position within the organization that gives him some operational command and has recruited, raised funds, and organized logistically attacks against US interests, service members, and citizens within the US. The US government believes it knows his location and is deciding whether or not to drop an ordinance on his suspected location.

    (1) Can the US, knowing its target is a US citizen, commit force to kill Mr. X, without due process?

    Legally, yes. First, lets go to the horses mouth. The Due Process Clause of the 5th Amendment.

    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.

    Notice I highlighted the term “person” and the last clause, which is the due process clause. The US constitution uses the term “person” in certain parts and uses the term “citizen” in others. These are not the same things. The Constitution explicitly uses them with two separate meanings. The Due Process clause of the 5th Amendment applies, as it says, to all persons, meaning citizens, resident aliens, and immigrants (legal or otherwise).

    Now if the due process clause protected citizens, an argument could be made that Mr. X may be protected under that clause. But, because it covers citizens, there are only two logical ways it can apply. (1) That “No person shall… be deprived of life, liberty, or property, without due process of law” in the US or (2) “No person shall… be deprived of life, liberty, or property, without due process of law” in the world.

    I think #1 is the only option that can stand logically,or else one could argue that all actions taken by the US against a person, anywhere. It would mean if we owed Mr. X protection under due process it would mean that every person would be protect by the due process clause. Saddam Hussein. Bin Laden. Any enemy in any war. All would be protected by the due process clause. Obviously that is well beyond the scope of that clause and in no way was the intention of that clause written to protect persons outside of the jurisdictional territory of the US. To hold otherwise, would make that clause some globalist/international that was not intent.

    (2) What is the standard of proof necessary for the US government to order the killing of a US citizen who is an enemy combatant of the US?

    Reasonableness. While criminal actions require a burden of proof of beyond a reasonable doubt, enemies at war have a much lower standard. All that is necessary is for the government to have enough evidence to reasonably believe that Mr. X has committed or assisted in the committing of violence against US interest, soldiers, or citizens. 50.0001%.

    Anyway, as I’ve said, my original objection was to this claim that the constitution ways dying because an American citizen was killed in Yemen as part of a military operation.

    We come from different premises. You think that this isn’t a war. I do. And the Congress passed an authorization for the use of force, so while you may not believe it should be a war, legally, it is a war.

    You can say it isn’t a war. You can say Al-Alwaki is just a mere preacher. You can say we’re going about this all the wrong way. Fine. Fine. Fine. But if this is a war, and Al-Alwaki isn’t a mere preacher, then the US has every legal right to kill him in Yemen, citizen or not.

    These premises will not be bridged any time soon. Our legal system is set up to deal with two types of (relevant) cases: criminal and military. It’s unfortunate that it is that way. I understand your arguments. It would be nice if we had entire different legal code for this area. But we don’t.

    While Westphalia hasn’t completely broken down, it is eroding. As it erodes, lawyers and citizens can look to either criminal law or military law as precedent on how to make the rules of the future govern these types of actions. In my observations, if I have to choose if the actions of Al Qadea, it’s affiliates, or other terrorists organizations are closer to criminal precedents (organized crime or “typical” murders) or military precedents (the legal precedents and history of war), my gut and my brain tells me to err on the side of the latter.

    1. (1) Your earlier statements suggested that you rely on sources of information that lie to you. Belief about Awlaki giving up his citizenship, the bizarre arguement that the hit on Awlaki was like shooting down Yamamoto, that hits were OK during the Civil War. All of these were matters of fact.

      (2) Now it looks like you’re just making stuf up. You’re making technical legal arguments. Example: “What is the standard of proof necessary? Reasonableness.” Your past two comments give these little credibility, and I’ll not bother to research them unless you can cite supporting evidence.

      (3) This is exactly the behavior I described in my post. Past examples of others suggest that this can continue for a long long time, as you reply to each rebuttal by more misinformation or actual fantasy. And ignore the rebuttals ripping apart your previous assertions.

      (4) Most important, you ignore the primary point: you appear to accept as gospel the government’s statements, and are willing to have a fellow citizen executed on that basis. Despite their long history of lies and errors in such matters. Most of this is just chaff, an evasion of that key issue.

      (5) “It would be nice if we had entire different legal code for this area. But we don’t. ”

      Don’t worry. If we get more people like you, we will get a new legal code. And a new govenrment, better suited to subjects (with no role for citizens).

    2. Staunch writes:

      The USA government is given authority to attack, defend, and frustrate said organization.

      Right there is where you beg the question. You may as well say “the USA government is given authority to commit extraterritorial assassinations in countries we are not at war with” and be done with it.

      Where is the USA government given authority to “attack, defend, and frustrate” (I assume you mean “defend against”?) a non-state organization that is operating in another country? If they’re insurgents operating in another country, they’re that country’s problem unless their military requests assistance. Or, they’re a police problem – the Yemenis might request assistance from the FBI and/or we might request the Yemeni government extradite them. Instead of requests coming from the Yemeni government, wikileaks’ embassy cables seem to show that the US is asking the Yemenis to allow US access to overfly interdiction against Hamas attempts to smuggle weapons into Gaza (are we in a state of war with the elected government of Palestine? I forget…)

      Anyway, as I’ve said, my original objection was to this claim that the constitution ways dying because an American citizen was killed in Yemen as part of a military operation.

      I think the issue is that the constitution is being killed by people such as yourself who are cheerfully adopting flexible justifications that allow the free use of military force, and don’t show the slightest shred of intellectual honesty about it. The the government has managed to produce a bunch of shrill shills that accept an exceptionalist unilateral position outside the rule of law – that, that is what is killing the constitution. In your comments on this thread, you have utterly ignored issues of constiutionality, and I have to assume you either know it (and are lying to us) or don’t (and are lying to yourself)

      Here’s an example:

      And the Congress passed an authorization for the use of force,

      In Yemen? Did I miss when Congress authorized The President to use force in Yemen? Or is The President dodging the war powers act again?

      Or are you just comfortable with the clear unconstitutionality of the action?

      I think that one interesting thing we could have done, had President Bush been a visionary, would have been for him to ask Congress for a declaration of war on Al Quaeda. That would have been interesting. At the very least it would have attempted to put some of our actions on a good (or excitingly arguable!) footing in terms of international law and would have clarified many issues regarding collateral damage, proportionality, and the torture of prisoners.

      Our legal system is set up to deal with two types of (relevant) cases: criminal and military. It’s unfortunate that it is that way.

      The problem is that the US Government is following neither the rule of law or the laws of war. I disagree with you that it’s “unfortunate” that it’s set up the way it is – I like the way it’s set up. I wish that the US Government was abiding by one of the two sets of laws, or establishing new moral high ground to engage with other nations to resolve the dilemma. Instead we get unconstitutional resort to naked force, and apologists for it. To defend and uphold The Constitution we require those that swore to do so to speak in its behalf and not try to weasel around it by picking whichever arguments are convenient from the laws of war and criminal law.

    3. You asked for a specific reply to a question, which I forgot to give. Your hypothetical:

      “Mr. X had joined an organization that, amongst other objectives, had the objective of frustrating American foreign policy, attacking and killing American soldiers, and attacking and killing American citizens. The USA government is given authority to attack, defend, and frustrate said organization. Mr. X reaches a position within the organization that gives him some operational command and has recruited, raised funds, and organized logistically attacks against US interests, service members, and citizens within the US. “

      We can only guess at such things, but it seems that your love for the government — or perhaps your fear — blindss you to rather obvious things. Your question is an age-old one: what should we do with people we know to be deadly criminals? Why grant them trials, risking a divided jury that frees them? Why sentence them to jail, when after release they might again commit crimes?

      Citizens should learn these answers in grade school. That so many reach voting age ignorant of these things threatens the Republic’s continued existence, forming a domestic group hostile to the ideals of the Constitution.

      In any case, your hypothetical has little relevance to the case under discussion. It’s like your previous mention of killing on the battlefield, or attacks on uniformed members of armed forces with whom the US is at war — chaff, intended to deceive both yourself and us.

      No matter how much you lie to yourself and us, we do not know that al Awlaki has done anything more than preach sermons denouncing foreign policy and actions of US government. That is his right as a US citizen, even if it motivates people to act against us.

    1. (1) Spelling is not important in comments.

      (2) I cannot spell well either.

      (3) Most of your assertions have been shown to be false, which you ignore. You don’t attempt to defend them, or acknowledge their rebuttal. That should concern you, not your spelling.

  9. As regards point (7), it might prove interesting to note the historical reason why individuals cannot declare war against anyone, and why states cannot declare war against individuals.

    The treaty of Westphalia in 1648 is regarded by most historians as the turning-point at which the modern nation-state system was established. Prior to the modern nation-state system, any individual or group of individuals could declare war on any other individual or group of individuals. This led (naturally enough) to family vendettas — a situation familiar in the American Appalachias with the Hatfield-McCoy feud. These private wars went on for generation after generation, and it was exactly this kind of unending familial vendetta that led to the Thirty Years War.

    After the Thirty Years War, the Treaty of Westphalia outlawed organized mass violence except between states. Since 1648, only states can declare war, and then only on one another. Abrogating this basis of the modern nation-state system would plunge us back into a situation akin to the Thirty Years War, when entire cities were left depopulated by 100 years of endless vendetta-based private wars between competing royal families.

    Interestingly enough, Martin Van Creveld’d prediction of the weakening of the modern nation-state system should have led us to predict such a development. According to van Creveld, we are currently living in a new middle ages. We should expect further regressions: public execution of witches and heretics, book-burning, and probably some sort of modern Grand Inquisition.

  10. It’s surprising that our anti-American commenter, who clearly despises the constitution of the united states, didn’t try to use the AUMF as the supposed legal basis for assassinating Al-Awlaki. The 2001 Authorization of Use of Military Force does indeed authorization American military forces to pursue the perpetrators of the 9/11 anywhere in the world, for any length of time until the sun goes dark, and subsequent AUMF resolutions also authorize American military forces to pursue anyone “associated with” the 9/11 attackers anywhere, at any time, until the end of eternity.

    Unfortunately for people like our anti-American commenter, the AUMF is a resolution. A resolution passed by congress is not a law. A resolution has no force of law. A resolution is not a legal document.

    A resolution passed by congress is a statement of position. It enacts no law and carries with it no penalities if disobeyed.

    A typical example of a congressional resolution is the unanimous resolution passed in 2008 declaring the month of July “National Watermelon Month.” Such a resolution carries no criminal penalities if people choose not to observe it. There are, for instance, no JSOC assassination squads dispatched to murder people who refuse to recognize July as National Watermelon Month. No SWAT teams will break down your door and hurl flash-bang grenades and haul you off in handcuffs if you refuse to celebrate National Watermelon Month in July. No judge has the power to imprison you for refusing to acknowledge National Watermelon Month.

    A congressional resolution is not a law. It is a statement of belief, akin to the statement “I think it would be a good idea if we celebrated Martin Luther King’s birthday as a national holiday.” The state of New Hampshire refused to celebrate Martin Luther King’s birthday as a national holiday for 31 years. The Pentagon did not dispatch Marine Corpse assassination teams wearing ghilley suits to take out the state government of New Hampshire because a congressional resolution has no legal force. It is not a law. It is merely a statement of collective belief by the congress of the united states with no criminal penalties attached for failing to agree, and no legal status.

    Consequently the 2001 AUMF cannot authorize anyone to assassinate anyone. The 2001 AUMF has no legal force. It is not a law. It has the same status as the congressional declaration of July as National Watermelon Day. The 2001 AUMF most certainly cannot abrogate the constitution of the united states, since the constitution itself stimpulates that the only way to change the constitution is to pass an amendment, or to completely rewrite the constitution by calling another constitutional convention.

    Amendments 5 and 6 and 8 and 14 of the constitution prohibit the governmental murder of American citizens. Amendment 5 requires

    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…

    This prohibits the governmental murder of an American citizen without first charging him with a crime, facing him with his accusers, and arraigning him in a court of law.

    Amendment 6 requires

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

    Al-Awlaki was never charged with a crime. Al-Awlaki was never arraigned. Al-Awlaki was never given a public trial. Al-Awlaki was never faced with a jury which heard evidence against him. Al-Awlaki was never allowed an attorney to defend him. Indeed, efforts by Al-Awlaki’s father to file a petition enjoining the government from assassinating him were denied.

    Amendment 8 requires

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    Sending a drone to fire a missile that blows up a person who has never been charged with a crime seems like a cruel and unusual punishment. if you disagree, please cite the numer of times police who wanted to interview someone without charging him with a crime have called in an airstrike to blow him up with a missile.

    Amendment 14 requires

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    If our anti-American friend dislikes amendments 5, 6, 8 and 14 so much, he should emigrate to North Korea. He will discover that North Korea does not have these annoying constitutional amendments to impeded the smooth progress of justice. North Korea also does not tolerate dissent, so he would have been shot in the head and thrown into a ditch by now.

    It’s called “constitutional democracy.” Love it or leave it.

    1. While I agree with most of this — strongly agree — the opening is not correct in stating that the AUMF has less legal effect because it is a joint resolution — not a bill.

      From the Library of Congress page How Our Laws are Made:

      “Joint resolutions may originate either in the House of Representatives or in the Senate-not, as is sometimes incorrectly assumed, jointly in both Houses. There is little practical difference between a bill and a joint resolution and the two forms are sometimes used interchangeably.”

      From the US Senate page about The Legislative Process:

      “Like a bill, a joint resolution requires the approval of both Chambers in identical form and the president’s signature to become law. There is no real difference between a joint resolution and a bill.”

  11. Thank you for correcting me. A joint resolution does indeed to be a law with the same effect as legislation passed in the ordinary way by congress.

    In that case, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) clearly makes the 2001 AUMF and subsequent AUMFs unconstitutional. The 2001 AUMF is therefore null and void and has the same legal status as a law declaring pi = 2 and gravity nonexistent. Marbury v. Madison clearly states:

    “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”
    In the majority decision written by Chief Justice Marshall, 1803

    Note that Al-Awlaki was specifically denied remedy for the violation of his vested legal rights according to amendments 5, 6, 8 and 14 of the Constitution of the United States. This citation of Marbury v. Madison is therefore directly relevant.

    1. You go to the heart of the matter, as does this post. We may have decisively moved beyond the boundary defining the Republic, set by the Constiution.

      We disguise this grim fact from ourselves by lies, as Staunch does here.

      It’s not a matter of good people and bad people, friends and allies. American citizenship is a process of choices. And people like Staunch have made different choices. When there are enough of them, the Republic will fall — to be replaced by a new system. They might not like what they get.

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