re: "If You're A Terrorist Abroad, the Fact that You're an American is Only Incidental"

Rusty Shackleford, Ph.D at The Jawa Report ("Sand people, get it?") explained, as you would to a child, what you do to enemies in wartime.

Money quote(s):

"The way you word things matters and I've become more and more annoyed over the past few years as many on the Right have increasingly adopted the phraseology of ardent Leftists. People who only a few years ago were die hard supporters of the war on terrorism today use phrases to make it seem that the same policies carried out under Bush are now leading to jack-booted-thuggery.

....

The particular wording I'm annoyed at today is the description of drone strikes as the "targeted killing of American citizens"."

Read on, MacDuff.

"We're at war. In a war, you kill your enemies. The fact that your enemies who are members or leaders of a foreign terrorist organization operating overseas are American is only incidental to the fact that they are terrorists.

We didn't kill Anwar al-Awlaki and Samir Khan because they were Americans. We killed them because they were terrorists.

This wasn't a case of the President of the United States killing a criminal in lieu of a trial. These were enemy combatants. You kill your enemies, you don't bring them to trial.

The fact that your enemy is an American citizen is irrelevant." (Emphasis in original text. - CAA.)

Simple truths. It's troubling that they need to be stated, and re-stated (and re-stated yet again) but that's why they pay us bloggers the big (non-existent) bucks.

(After all, if it was easy, everyone would be doing it.)

"The idea that we are going to fly FBI agents to Yemen, read members of al Qaeda their rights, and then bring them to Virginia for a trial is sheer fantasy. It's completely and utterly disconnected to reality.

Yet that is what you are arguing for if you oppose targeted assassinations or military trials. Unless, of course, you are arguing that the US should do nothing about jihadi terrorism, even when that terrorism is directly targeted against the United States.

Before 9/11 the policy of the US was to treat terrorists as criminals. After the USS Cole and African embassy bombings, President Clinton sent in the FBI to investigate.

Yeah, that did a lot of good. 9/11 was an outgrowth of that policy position.

So, if you want to go back to that model then, by all means, keep advocating for an end to drone strikes and military commissions.

And when we're hit on a mass scale like we were on 9/11 again, I'll blame you and your legalistic ideology in regards to notions of civil liberties for the atrocity." (Emphasis in original text. - CAA.)

2/1

re: "There's something I like about Newt Gingrich"

Ann Althouse at Althouse ("blogging since January 14, 2004") likes Newt for intellectual reasons.

Money quote(s):

"Most of the candidates will listen to a question and then answer some question they wish they'd been asked. This is a standard approach to answering questions on television. It's a way to avoid letting the questioner control you, and you create an opportunity to say what you want to say.That's not what Newt does. He listens to the precise question asked and examines it, then works out, before our eyes, what is wrong with that question and what the real issue is. He has a depth of understanding and flexibility of mind that allows him to do that, he cares about doing that accurately and well, and he has the style to want to perform reasoning for us."

I rather like this Gingrich quote myself:

"It is the rule of law. If you engage in war against the United States, you are an enemy combatant. You have none of the civil liberties of the
United States. You cannot go to court."

Also:

"There is a huge gap here that, frankly, far too many people get confused over. Civil defense, criminal defense is a function of being within the American law. Waging war on the United States is outside
criminal law. It is an act of war and should be dealt with as an act of war, and the correct thing in an act of war is to kill people who are trying to kill you."

11/13

re: "State Department refuses to release documents about jihadist on CIA's kill or capture list, citing his right to privacy"

Robert at Jihad Watch ("dedicated to bringing public attention to the role that jihad theology and ideology plays in the modern world, and to correcting popular misconceptions about the role of jihad and religion in modern-day conflicts") asked a decent-enough question:

"Why is the Obama State Department worried about the privacy rights of this Islamic jihadist who has repeatedly inspired and masterminded plots to kill large numbers of Americans?"

And even posts the answer, in an excerpted passage:

"The Department of State, Passport Services has reviewed your request
and has given full consideration to the reasons provided. However, we have determined that your request must be denied. This denial is pursuant to subsection (b)(6) of the Freedom of Information Act. The release of this information to you would be an invasion of personal privacy of another person, without written authorization from that person."

Triple-A is now, thankfully, deceased, so the Privacy Act exclusion would no longer apply. Prior to his demise, however, even the fellow citizens we don't like are still entitled to their privacy rights.

This doesn't mean that law enforcement and other government agencies couldn't access that information for lawful purposes; that's part of the Privacy Act as well.

8/27

re: "WTF? State Apologizes to Dead Terrorist's Family (Updated)"

Rusty Shackleford, Ph.D. at The Jawa Report ("Sand people. Get it?") reacted strongly (and negatively) to reports of an official apology.

Money quote(s):

"I'm not sure if I should be laughing at this or getting really, really pissed off.

On the one hand, we pay the State Department to lie. And, if saying you're sorry for killing a terrorist isn't a lie, then I don't know what is!"

Khan wasn't the intended target, apparently, in this; Anwar Al-Alaki (sp?) was.

So perhaps we were apologizing for poor marksmanship?

(Actually not.)

"Please tell me this is part of some larger duplicity which leads to the entire Kahn (sic) family being deported and/or indicted?

I've always had a rather low opinion of State. But after this, I'm left to wonder which side of the War on Terror they're really pulling for?"

Trust me; the people at State who are aware we're in a war at all (and there are many, perhaps even a majority) are pulling for our side. Fact is, State folks have been some of the primary targets for the other side for several decades now.

It's still true that more U.S. ambassadors have been killed in the line of duty since WW2 than general officers and admirals combined.


10/7

re: "Not the Change They Were Looking For"

Lex at Neptunus Lex ("The unbearable lightness of Lex. Enjoy!") delineated his comfort, and discomfort, zones regarding the "Triple-A" killing.

Money quote(s):

"I am, in the main, comfortable with the extrajudicial killing of Anwar al-Awlaki, the Yemeni-born American citizen who coached Nidal Hasan through his killing spree in Fort Hood, amongst other crimes and misdemeanors. In an ideal world, he would have been isolated, seized, arrested, Mirandized and brought to justice. In the end, the result would very likely have been the same, apart from the vastly greater sums being expended in security, trial, appeals, not to mention care and feeding while on death row. (All of it spent for the opportunity to congratulate ourselves for our moral superiority and more refined social consciousness as contrasted to the terrorists we grapple with, if not the societies which gave them birth. Because that would require the ability to make distinctions between one thing and another, which many of us have lost the ability to do, sing kumbaya.)

But we don’t live in an ideal world." (Bold typeface added for emphasis. - CAA.)

You lie down with with terrorists at war with the U.S., and you get up with a Hellfire missile. Or don't get up, as the case may be.

"All that said, I do find myself a little queasy with the process by which candidates are nominated for death by lethal explosion"

Yeah. I can see that. It's one thing to targeteer a bombing raid on an enemy military headquarters, and if there's an American traitor on the premises that just his bad luck.

It's a bit of another thing when the target itself is in fact a himself.

This is a logical consequence of our surgical strike capability achieving such fine granularity that it's now micro-surgery.

"So a “secret panel” of “senior government officials” using no process defined by law “informs the president of its decisions”. That president’s role in approving those decisions is “fuzzy”, but at the output end people – American citizens – get got.

I don’t want to go all slippery slope here, but that just doesn’t quite seem to be in concert with the Constitution that I swore an oath to support and defend."

I wouldn't describe this targeteering scheme as being unConstitutional so much as being perhaps extra-Constitutional, and even that may be a stretch. Presumably the JAG folks have been over this backwards and forwards; it'd be a good deed of some of their advice could be released to the public.

"Now unidentified “government officials” are not just spying on people, but morting them, with no controlling law, no judicial review and “fuzzy” oversight.

I just don’t know."

It seems to me that the president, as commander-in-chief has delegated this targeteering function to certain of his lawfully appointed subordinates. All well and good. After all, most warfighting and commanding is (or should be) delegated by the CinC.

They make a recommendation, and then president, this time in his role as "chief magistrate," gets a chance to over-rule it, or not. Makes a certain amount of sense, but my theoretizing is just CAA spitballing here; what did the in-house JAGs have to say about this? What's the process and who designed it?

10/6

re: "al-Awlaki and Citizenship"

Peter Spiro at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") discusses AAA and what to do about his like in the future.

Money quote(s):

"Al-Awlaki obviously was obviously hostile to the United States; in an older world, in which our adversaries were also states, he would have lost his US citizenship as a member of the armed forces of another state. But the only way to lose your citizenship today is to walk into a US consulate and formally renounce it, a step al-Awlaki wasn’t in a position to undertake.

One response would be to adopt a Lieberman-type terrorist expatriation measure. I don’t think that would do a lot of good, other than generate yet another layer of litigation, this one over whether particular conduct evinced an intent to relinquish citizenship (constitutionally required, as per Afroyim v. Rusk). So that leaves us with some citizens who don’t really seem like citizens, which means that the citizen/non-citizen differential for rights purposes will get smaller still."

The laws regarding expatriation and expatriating acts are still on the books; this business about only those who voluntarily relinquish citizenship is a function of judicial interpretation, which can be overturned. And should be.

10/5

re: "Proscriptions"

Dr. Jerry Pournelle at Chaos Manor ("This is my personal journal and day book. Subjects include civilization and technology, strategy, climate, energy policy, space access, and other issues that interest me.") exhibits one of the qualities of good citizens; asking good and just questions about what our government does in their name.

Money quote(s):

"the justification for the missile attacks on two American citizens in Yemen is that this was an act of war against those who have publicly declared themselves to be enemies of the United States. They considered themselves at war with us, and we with them. This is war.

We can accept this, but questions remain.

First, this wasn’t an act of war against someone engaged in actions against the United States. At the time they were travelling from one town to another, and whether they were armed or not is not relevant. It was a missile strike without warning on specific and named individuals, and one presumes there is a list of others who merit the same deadly attention, all of them persons who are at war with the United States. Let us assume all those persons on that list deserve to be there; that they have in fact engaged in war against the United States, and hitting them with missiles, or a sniper’s bullet, is no more than they deserve.

Questions still remain.

The first question is, how do you get on that list? It surely isn’t automatic. Just because the press reports that you have publicly declared yourself an enemy of the United States doesn’t necessarily make it true. Newspapers have been known to get such things wrong. But assuming that we have good intelligence reports, how do you get on the list? Is this a power that lies with the President alone, or must he have the acquiescence of someone else? Who? We are well beyond the law or the constitution here. We have to presume that this is a war power and resides in the President and that he can delegate that power.

To whom is he responsible, and how must he convey this command?" (Bold typeface added for emphasis. - CAA.)

Good questions, all of them.

The U.S. is, at long last, at least somewhat at war with those who've been waging war with us for decades. That war is not, as sometimes happens, limited to distinct and discrete geographical theaters of war or campaigns or areas of operations but is, instead, waged globally and multi-dimensionally.

Still, for all that, to deliberately select and eliminate, whether by drone-launched missile or poison blow-dart, a particular person (regardless of their citizenship or nationality) begs the question of targeteering.

"Another question: if either of these American citizens had returned to the United States and come to Kennedy International where they presented their US passports at the entry booth, could they have been arrested? On what charge? Were there outstanding warrants? In the case of Samir Khan it is not clear what he could be charged with. He ran a blog, an Internet magazine – I do not know of any other involvement other than that he associated with Al Awaki who associated on line with Major Hassan. Perhaps either or both could be charged with conspiracy and with levying war against the US, but I don’t think that has been done. So: we establish that they could be killed out of hand while travelling from one place to another, neither carrying arms or engaged in any act of war, while in a foreign country: but could they have been shot down by a US Marshall while still in the part of the airport that is not yet in the United States? On international territory? Or after they stepped into the United States?

They can be killed but not arrested: it would take convening a grand jury or a warrant from a magistrate before they could be arrested at Kennedy?

I do not here seek to make life difficult for our military; but I do seek to ask questions. If American citizens can be put on a proscription list and those on that list can be killed on sight by launching high explosives as them, is it proper to ask the procedures required to get on that list?" (Bold typeface added for emphasis. - CAA.)

We do not, at present (nor since 1865 or thereabouts) routinely have U.S. military or law enforcement personnel execute "shoot on sight" orders against American citizens within our own borders.

(Historians of the Indian Wars may care to dispute the definitions implicit in that statement.)

So the idea that had either Triple-A or Mr. Khan appeared at an international air terminal (or other port of entry) they would be engaged with lethal force strikes us (and should) as quite alien. But as it is necessary to consider the eventual consequences of what Dr. Pournelle terms (with historical accuracy) as a "proscription list." It is further necessary to understand how such a thing functions.

"Perhaps the questions are frivolous? Perhaps as one reader says “It’s war and all’s fair in love and war.” Of course that statement is not true. And I do not seek to condemn Mr. Obama for ordering the strike. I do question whether we have sufficiently thought this through. Surely before American citizens can be put on a proscription list there must be some conditions: an act of war, a determination by the President, and surely there needs to be a declaration of war. We assume that the War on Terror establishes a state of war (although I believe Mr. Obama rejected that during the campaign; perhaps he has changed his mind, as he has changed his mind regarding Guantanamo, and trials of the inmates of Guantanamo by military tribunals (note that here there is to be a trial: the President does not seem to assert the right simply to order the execution of those held in Guantanamo without those military tribunals). Would it be good to write down the procedures for establishing the proscription list?

Well, enough. Had Mr. Clinton acted positively when Delta had Bin Laden in their sights, it might be that 911 would not have happened. Mr. Obama did not shirk the responsibility. We give him credit for that. But I do think it is worth discussing how we regularize the procedure for getting on the proscription list, and specify how one might appeal to get off it – perhaps by coming home to the United States and engaging a lawyer?" (Bold typeface added for emphasis. - CAA.)

10/3

re: "When "Expat" Becomes Enemy"

Robert at Atlantic Crossings ("Between the Hudson Highlands and the South of England…") noted how greatly things have changed since WW2.

Money quote(s):

"(T)his killing should come as no shock given how policy has developed in the last decade. If anything, it is just another example of those perhaps new “gray areas” to have emerged from the confused mess of the reaction to 9/11. Not only is the issue what is “an active battlefield” (especially when civil law is effectively non-existent), but more generally what precisely constitutes “war”, given that it now appears no longer nearly as easy to define as in 1917 or in 1941? Indeed, what is a “battlefield” now and what is not?: “front lines” are increasingly difficult to identity most of the time."

When your enemy is waging multidimensional warfare against you, your country, your allies, your people, and your civilization, it behooves you to respect that choice, to honor the threat. And to respond in kind.

10/3

re: "Barack Obama: Anti-Terror Warrior?"

MikeM. at Confederate Yankee ("Because liberalism is a persistent vegetative state.") still has a liberal friend (or two).

Money quote(s):

"(H)e was also exercised that al-Awlaki, an American citizen, was not given a proper civilian trial before being executed. Irony challenged, my acquaintance.

As to Awlaki's citizenship, the facts are clear. Awlaki was an American citizen, but a citizen who took up arms against America. We know this because he explicitly told us, many times, that he was at war with America. We know that he was a top enemy commander and that he was directly involved in the planning and execution of attacks against America, American interests and Americans, attacks resulting in American deaths, the Fort Hood attack being only a single example.Arguably, this would make Awlaki guilty of treason, and if captured, he could be tried for that offense. However, capture and trial were not required for one very powerful and well understood—legally speaking—reason: we are at war.

It is hard for most Americans to understand this simple fact: we are at war and have been since at least the first attack on the World Trade Center on Feb. 26, 1993 and probably since the Islamic takeover of Iran in late 1979. Because most Americans have to make no sacrifice, because the ongoing war does not disrupt or directly affect their lives in any way, the very concept of war seems a matter of semantics, a debating topic, not a deadly, personal or national reality. We will almost certainly be at war for a generation or more. We may not consider ourselves to be at war with our Islamist enemy, but he does not share our peaceful convictions.

In war, our declared enemies may be killed whenever and wherever they are found. This simple fact does not change because of the nationality of the enemy. This too is a well-settled fact of law. There are no clear demarcation lines on a worldwide battlefield. Americans have, in past wars, gone over to the side of America's enemies and have as a result become indistinguishable from any other enemy soldier or leader. We have killed them when necessary and captured them when possible. When captured they were tried by military commissions." (Bold typeface added for emphasis. - CAA.)

These are facts, stated plainly and without adornment. It pains me how many of my fellow citizens, even some of my FS colleagues, seem not to understand them.

"Some have suggested that due to the unique nature of our current world wide conflict, the Congress should enact standards for stripping Americans of citizenship so that they may be killed without trial when acting as an enemy of America, but this is unnecessary and likely designed to impede rather than assist America in her war fighting efforts. American and international laws and standards are quite clear on all of the issues involved and have been since the early 1900s."

Standards already exist for expatriation (i.e., loss of citizenship) as part of the public law, incorporated as part the Immigration and Nationality Act of 1952. I'm sure I don't understand why this hasn't been utilized, but I'm not sure it's ever even been considered in cases like these. Perhaps the legal bar is simply too high, would provide a public soapbox for avowed enemies of the U.S. as they (or their lawyers; i.e., lawfare) appealed such measures, and it's purely simpler (and just as legal) to kill them.

10/2

re: "No Foe, No Friend"

Richard Fernandez at Belmont Club discussed having it both ways (or not).

Money quote(s):

"Walter Russell Mead, writing in American Interest, believes the root of the problem is that the President wants to fight terrorism in two potentially contradictory ways: as a war and a non-war; as combat and as law enforcement. In his view the Al-Awlaki operation highlights the problem of trying to have it both ways at once."

It's interesting how this circle has been squared. Rightly or wrongly, then-presidential candidate Sen. Kerry was vilified for comparing international terrorism for comparing international terrorism to a law enforcement problem such as prostitution (IIRC). But keeping one's options open is generally thought to be a good thing.

"(W)hat Walter Russell Mead believes and what Barack Obama believes are two different things. While Mead may want clarity, Barack Obama is following the time honored political tradition of creating two sets of rules which he can separately invoke as convenience demands. When it suits him to act the “law enforcement officer” in order to mollify his left wing base and European opinion, then he will don that hat. When it suits him to act like a Commander in Chief to prevent the eventuation of a threat (which would lose votes), he will don the other other hat."

We should be thankful that sufficient motivation exists for acting like a commander in chief.

"The basic cultural problem is the media has conditioned the public not to be able to handle the truth. Certain segments of the public want safety but don’t want to be told how it is obtained."

"You can't handle the truth!"?

Well, judging by what we've seen of the Occupy Wall Street phenomena, Solyndra, and other stories, there's no desire on the parts of many to be told the truth, at least not by those who those many are likely to be listening.

"But trying telling the truth on the air and a whole line of pundits will queue up to call you a bigot and warmonger; except when the same set of people aren’t demanding that you do the opposite to be kept safe. Walter Russell Mead is right. You can’t have it both ways. But it is politically incorrect to say so. Therefore people like Judyth Hill of the Nuclear Age Peace Foundation can say with a straight face that our response to September 11 should be to “make soup … Breathe in terrorists and breathe out sleeping children and fresh mown fields”. This passes for wisdom and if you disagree you’re a bigot.

And since logic like that can stand as public policy, we will inevitably reap its logical conclusion. We’ll get fantasy for fantasy. A fantasy strategy will eventually result in an imaginary victory for the protection of imaginary rights. Because what goes around comes around. You get what you pay for. So what does US citizenship count for? What in a war or under law enforcement? It is ironic that no one realized that when the clear bright line between enemy and dissident was muddled that everyone would wind up in the same pot. When there are no enemies — except sometimes, then there will be no rights — except sometimes."

10/2

re: "Was it legal to kill al-Awlaki?"

Neo-Neocon ("slowly but surely leaving the fold and becoming that dread thing: a neocon") is asking the right questions.

Money quote(s):

"Was it legal to kill al-Awlaki without due process, courtesy of drone?

Some will say “who cares? Good riddance.” But they are ignoring the importance of the issue and the possible danger of the precedent, while those who question the mission’s legality are asking a question that is necessary to confront: under what circumstances can a president order the liquidation of an American citizen (or possible former American citizen) without any courtroom procedure, even a military tribunal?"

Obviously, this question is only of interest to those 300,000 or so folks who happen to be U.S. citizens.

"Fighting international terrorism presents us with a different kind of war. That does not mean we can do whatever we want. But it does mean that the rules need developing and clarifying."

(10/1)

re: "The Left's Rage Over 'Assassination' Of US Citizens Begins"

Jason Bradley at Big Peace addresses some of the proper issues surrounding "Triple-A" 's death.

Money quote(s):

"Assassinating US citizens without due process is in fact wrong. But there is nothing basic about the kind of terrorists’ threats we face daily. We do not have drones patrolling the skies of Los Angles and we are not targeting American civilians in all out military offensive. These terrorists are not simply breaking laws. They are more than just your common criminal or gangbanger. They are continuously plotting to kill as many Americans as possible. They are financed and organized by governments and terrorists organizations that stretch the globe and have plenty of resources from which to operate. That makes them threatening in such a way that due-process would actually be a hindrance in protection of the homeland.

Al-Awlaki’s ‘citizenship’ is the product of an outdated and erroneous interpretation of the 14th Amendment. He is about as much of a citizen of the US as Osama bin Laden was. If he was truly a US citizen he would live here, pay his taxes, and be a productive member of society. If individuals like al-Awlaki can be considered a US citizen with a straight face, then perhaps there is need to approach the ideas that constitute citizenship. Al-Awlaki stopped being a US citizen the moment he sat down with terrorists and collaborated with them to kill American citizens."

1. Al-Awlaki got precisely the due process (under the laws of land warfare) that any other enemy of the United States gets; not a trial by jury in a courtroom, to be sure, but by targeteers and military commanders performing their lawful duties.

2. There are those who make this fairly reasonable argument, that children born to foreign citizens who are not themselves legal residents (a broader category than illegal aliens, by the way) in the U.S. aren't due American citizenship under 14th Amendment authority. So far this hasn't been the interpretation of the SCOTUS, but it's not that unreasonable an interpretation.

3. Mr. Bradley's point with regards to expatriation (i.e., loss of U.S. nationality), is meaningful and well-taken. There are existing laws, on the books, to strip U.S. citizenship from those who wage war against America. They ought to exercised.

(10/1)

re: "Re: Who Was Awlaki"

Mario Loyola at The Corner takes it by the numbers.

Money quote(s):

"First, for purposes of combat actions such as the targeted killing of Awlaki, the battleground in our war against al-Qaeda is not “everywhere.” It is in those few countries that either willingly or unwillingly provide significant safe havens for al-Qaeda. Yemen is in the first rank of that group of countries, along with Pakistan, Afghanistan, and Somalia.

Second, legitimate al-Qaeda targets in each of those countries are subject to attack pursuant to Congress’s 2001 Authorization to Use Military Force after 9/11, which even Vice President Biden has deemed a constitutionally sufficient declaration of war. That disposes of the concern that the executive branch is operating without the imprimatur of Congress. And the president is at all times subject to a variety of laws that constrain his conduct as commander-in-chief. Just because this particular killing is not justiciable (on the facts known to us) does not mean that federal courts cannot hold the president to account for violations of U.S. law.

Finally, to the extent your reference to “checks and balances” goes to due process, our rules of engagement are informed by international law and fall within the regulatory powers of Congress. Nobody is alleging that the rules of engagement were not followed in this case. The Constitution’s due process guarantees for criminal defendants in a civil prosecution are meant to protect private citizens from the power of the state. They have never (at least not until recently) been understood to benefit combatants – U.S. citizens or otherwise — who have taken up arms against the state itself."

He (correctly) draws the following conclusion:

"An al-Qaeda convoy riding along a desert road in Yemen is a legitimate bombing target, period."

(9/30)