Superficially, the rule seems like it would be based on whether capturing / arresting the person is not feasible, but doing nothing has a high probability of resulting in that person being involved in a violent crime (killing of hostages, participating in a terrorist act). Unfortunately, deciding if that is true for a given situation is of course a judgment call. But to simplify it down to "the government shouldn't kill people without a trial" overlooks some things that need to be considered. Could he have been feasibly arrested? What would have been the consequences of doing nothing?
If and when the memo is produced, we can discuss its content; until it is, we should simply ask for it.
The whole concept of "secret legal memos" is the most preposterous thing I can think of. Secret orders may be a necessary evil; but secret legal justifications? What could that even mean??
The argument is that by disclosing the legal justification you give information to the targets. For example, if the argument for allowing a drone killing required an explicit threat to commit a violent crime by the target, targets could know what to keep their mouths shut about in order to avoid qualifying. It's a weak argument. But hey, maybe they can keep that argument secret too and then no one will be able to challenge it.
If there's a law that's punishable by death, it better be publicly known.
So now the overwhelming majority of the world goes dark on the law because a minority of uniquely dangerous criminals are lawyer-like Westboro Baptists with bombs.
If terrorists wish to confine their behaviors to the technicalities of western law because they would rather get arrested than shot, that is actually a highly desirable outcome. We should seek to capture all criminals alive and decently, and gather what data they have to attack other networked crime. Seriously, law-conscious Westboro Baptist terrorists would be a positive development.
This is no different from a criminal learning about the circumstances in which a cop might shoot them, and thus opting to drop their gun in certain situations. The criminal is being more legally conscious as part of their strategy.
While wrongdoers who play legal strategy can be a frustrating nuisance, but the alternative is secret legal memos, which I find more frightening.
This way a justification can be made without details being made public that would alert a sensitive target. It is also necessary to make sure that a potential authorized kill could not be held open indefinitely and the details released publicly in a timely manner.
His citizenship is neither here not there for me. If it's acceptable to target foreign al-Qaeda leaders in overseas theaters (which I believe it is, in many cases), then it's equally acceptable to do the same to an American who chooses to take up such a position.
In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
It's frustrating that, after reading all the other comments here and at the NY Times website, it seems like at least half of the people disagreeing with this article are doing so because they didn't read that passage.
Perhaps this discussion is tainted by the submission title: "Show us the legal case for executing a United States citizen without a trial." The hostage taker hypothetical is an example that goes against that. That person would be a citizen, not in a battlefield, guaranteed the right to a trial, executed by the government, without a trial. The article does not do a good job of distinguishing that example from Awl Alaki. Meaning I think the central argument isn't all that good, and needs to be more specific / nuanced.
Firstly, there is no mention of citizenship. Secondly, the loophole covers any land force, sea force, or militia, and the service can be in any time of war (not necessarily currently engaged in battle) or any time of public danger. There is no mention of loyalty to the U.S. as enemy or ally.
Obviously, the intent of the loophole was to address the question "How can we possibly fight a war if 23 people have to hear evidence before every musket ball flies?" But thanks to poor bounds checking, the protection against arbitrary extrajudicial executions is severely weakened.
By a malicious reading of the amendment, I could argue that, by the tenets of Islam, every Muslim is a member of the militia, and that every member is called upon to wage war upon the unfaithful, heretics, and apostates. That is, they would all be "Militia, when in actual service in time of War or public danger." They don't even need to be at war against the U.S. The loophole does not specify.
It would seem that the source code for U.S. Government should be updated, and a patch released.
Specifically, the US Senate unanimously wrote that the US "has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen" (that being the older term for Muslims).
That nitpick aside, your statement is still true - the loophole would be to declare that, say, the tenants of the Wahhabi branch, or the Ahmadiyya branch, of Islam are not part of the true Muslim faith as meant in the Treaty of Tripoli.
The U.S. could target a South Korean soldier at a defense conference in the U.S. South Korea is still at war with North Korea, so that's a soldier, on the job, during a war. All the requirements are met. It does not matter one little bit whether the soldier is actually a danger to the U.S. or anyone associated with the U.S. It might cause a diplomatic ruckus, but the U.S. is allowed to do it by the 5th amendment.
It's a horrible, horrible loophole.
The requirement is that they be in military or militia service during a war or public crisis. Any war. Any crisis. If you are shooting Martian invaders with a slingshot, you fall into the loophole. If you are an Indonesian soldier delivering drinking water to tsunami victims in Indonesia, you fall into the loophole. Get it?
If you say that being in the militia is a requirement of Islam (and a quick search of a Koran does not find that to be true), then it was equally true when the US signed that statement; and I have no doubt that some Muslim somewhere was involved in a public crisis even at the time it was being signed in the Senate.
But change one single iota of your premise away from specific treaty terms, or clarify that the US has the ability to declare someone to not actually be a Muslim, then you're golden.
You also need to be careful to not trounce over other treaties, like the UN Charter. That's not hard, if the last 50 years of US military interventions is any indication, but it's not so easy as only using the language of the loophole.
You are completely missing the point. This doesn't have anything to do with Muslims or Islam. It has everything to do with some psychos in the U.S. government ruining the rule of law for everybody in the entire world, because it has some tiny benefit just for them in the short term.
The 5th amendment basically says that the normal rules do not apply in a war or public safety threat. Therefore, if you, as an agent of the government, wish to operate outside the rules, you just create a war or public safety threat. That's what we call a perverse incentive.
I could be wrong but I'd tend to believe it is because they are a clear threat and not because one has poor choice in friends or makes suspicious trips to unusual destinations.
I'd love to be able to trust the governments ability to decide who and what is a 'clear threat', it'd make a lot of things a lot easier. But unfortunately history - including fairly recent US history - is chuck full of evidence to the contrary.
To the extent that there is a difference, I'm much more concerned about the former, but worry that the government may (naturally) be more concerned about the latter.
Hence, the call for the disclosure of the memos.
And the government doesn't feel like it's obligated to make a public case for what they've done.
And no, that is not a snarky joke. Reference: recent ex-NSA's (chief?) quoted revelation.
"Oh, we're not monitoring your calls, that would be bad! Just simple meta-data, nothing to worry about at all..."
If you know the rules, you can exploit the rules.
I am pretty sure that they are already operating under the assumption that, because they want to kill others, America wants to kill them. If that is indeed our legal justification for killing them, publicizing it would not modify their behaviour in any way.
This isn't about getting the list of people targeted for killing. This is about getting the legal justification for the killings at all. If the justification is as you suspect it is, then there is no value in hiding it. That they are fiercely protecting the justification itself strongly suggests that you are wrong.
Hey, it worked for me as a kid.
But the devil is in the details. How does the US define 'clear threat', exactly, I think would be useful for an enemy to know and possibly exploitable.
And I don't think the US is hiding the overall justification which is "These are people who wish to use violence to act against the United States and its citizens to push their own political agenda. In short; terrorists."
I mean, these are not people who are running for Mayor in their particular part of the world and we don't like their policy decisions. They are doing things like running training camps where they teach others how to make IEDs.
Rest assured that anyone who could be considered a terrorist knows that, if they surface on the US's radar, they will be targeted. They take it for granted that they are targeted, because that is the safe assumption to make.
> "And I don't think the US is hiding the overall justification which is..."
I am not interested in the "PR justification", which is indeed "Turrusts!" I am interested in the legal justification. The only thing that they want us to know of that is that it is secret.
If it were nothing out of the ordinary, it would not be so secret.
(Also, normally I try to avoid doing this, but since you are being so persistent in using strong wording in your comments, I feel that I don't have any choice: These are not people running training camps or making IEDs; these are people accused of doing those things. The difference is important, because it is the reason we are having this discussion. It is particularly important because it is suspected that their legal justification extends beyond people who have actually allegedly done anything, and in fact also covers "people who have communicated with those who have allegedly done things" or "any 'military-aged' male in the family of anyone who has allegedly done things")
If these people are not terrorists, what would the US have to gain by killing them?
I am all for oversight and checks and balances. We need to be sure that we are killing actual threats. But I also understand that, as a practical consideration, it might be counterproductive to make the oversight public.
We don't have the luxury of doing full investigations and putting people on trial. It sounds nice, but it is impossible.
For the record: I think it is unfair that you charge me with "Using strong language" and in the same breath deride my position as merely parroting PR "Turrist" propaganda. Cheap shot.
Not that the question is bad, it's just that it's not rhetorical at all, you might want to try to actually answer it. And while you are at it, you might also want to read up on how most of the things that were done to jews (and some other minorities) in the third reich were also legal, at least according to german law at the time.
(edit: and mind you, they also had ways to justify those laws, it's not like they just made the "be evil law", of course it was all about protecting the home country or race or whatever, if you wait for an abuser of power to declare themselves an abuser, you'll generally wait until after all the bad stuff has happened ...)
Who exactly are we at "war" with? On what Constitutional basis was this "war" declared? Under what conditions will hostilities cease? On the enemy's side, who has the authority to sue for peace or sign surrender documents? What laws of war under the UN, Geneva Convention, and/or various treaties apply to this one?
You don't get to do anything you want, and kill anyone you want, just by declaring a "war" on an abstract noun.
The US declared an open-ended war against those people and organizations that the President determines were involved in the 9/11 attacks, and al-Qaeda is one of those organizations. While one might argue (as many have) that the an open-ended declaration of war was a bad idea, or (as others have) that "al-Qaeda", given its nature, is more of an ideological alignment than an actual organization, the power to declare war has never been Constitutionally limited to declarations with nation-states as the target of the war declared.
No it did not. There was no declaration of war, there was an authorization for the use of military force. Two very different things.
No, they aren't different Constitutionally at all. The AUMF is an exercise of the Constitutional power to declare war, which does not require any particular language to be used in exercising it, just as the Constitutional power to levy a tax depends only on whether the effect is a tax, not whether the Congressional action imposing the liability calls it a tax.
(It's possible that statutory provisions passed by Congress under its other powers may be conditioned on the specific language in a declaration, such that there may be different effects of something like the 9/11 or Iraq AUMF and something that explicitly uses language like "declares war", but that's a distinction caused by the exercise of other Congressional powers, not a Constitutional distinction that makes the former something other than an declaration of war from a Constitutional perspective.)
Because its the only Constitutional power of Congress which could support it.
> rather than Congress' power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."?
The necessary and proper clause isn't an independent alternative to other Constitutional powers, there still has to be a base Constitutional power to which the function is necessary and proper.
You've also overlooked the possibility that the AUMF is simply unconstitutional.
In any event, to end this sub thread, at least for my part, whether we are at war or not still doesn't answer the question because declaring war is not a carte blanche to ignore the rest of the constitution (see Hamdi v Rumsfeld). It in no way comports with war traditionally understood to assassinate personel vaguely associated with the enemy involved in the production of propaganda thousands of miles from any active battlefield. Nor is such a killing 'necessary and appropriate' in the words of the AUMF.
That doesn't change the answer. There's no other Constitutional power to which there is even a colorable argument that the AUMF is "necessary and proper" such that it would be supported independently of Congress power to declare war.
> It could be an Article II power, such as the CinC power.
It's doubtful that any such power exists -- the designation of the President as Commander-in-Chief of the military in Article II is a limitation on Congress' Article I power to regulate the military (specifically, it prevents it from dividing the roles that the founders saw as having an executive character by creating a separate C-in-C of the military, which its Article I powers would otherwise permit). But its not a power of government -- the designation of the President as CinC doesn't give the government any power that doesn't come from some other provision of the Constitution, it simply limits the manner in which other Constitutional powers may be exercised (it distributes some powers to the President to the extent that they already exist within the federal government, but for them to exist within the federal government, they must be grounded elsewhere in the Constitution.)
> In any event, to end this sub thread, at least for my part, whether we are at war or not still doesn't answer the question because declaring war is not a carte blanche to ignore the rest of the constitution
The answer was offered to the question of when did we declare war on the targets of these actions, and was not intended to say anything more about the Constitutionality -- and, even more so, appropriateness even if Constitutional -- of the actions, which is, I think, a much harder question that can't be answered without a thorough application of principles to the changing factual circumstances of technological means and realities of modern warfare.
However, I must point out one important characteristic of these pseudo-wars the U.S. keeps having - it's always on foreign soil.
Without disclosing the rules, it opens us to moral hazard. There is no incentive to feel accountable, and as we've learned lately, the government does not do well without accountability.
Please tell me the US government had the foresight to avoid choosing---as the name of a core algorithm employed by its covert services---a name shared by the fictional criminal organization for world domination in the Marvel Comics universe, which is itself opposed by that fiction's analog to America's covert services.
Someone in the chain of command is either deeply ignorant of Marvel Comics (completely understandable) or deeply, deeply cynical about the state of the world (completely concerning).
If there's a hostage taker pointing a gun at someone's face, I can see what we're trying to do: step in at the last minute and prevent someone who is already visibly committing a crime (brandishing a weapon, threat of lethal force) from killing a person. Some unarmed guy outdoors, though? From a mile away? Because a committee put him on a list? What was he about to do that we stopped?
The point is there is no oversight the president can just kill whoever he want not to mention it shouldn't be legal to begin with.
There's a reason for a trial and part of it is weeding out procedural mistakes or abuses of power.
Great. A lot of new followers for my books are from Pakistan.
I see no way in which the drones sent could be reasonably explained as attempting to apprehend or arrest the subject.
Is there any proof or evidence? It seems the lack of evidence made public is why people are upset.
These guys are destroying the best parts of America because they're lazy, they're incompetent and/or they don't respect the Rule of Law. Any of these three reasons is sufficient not to allow anyone involved in these criminal acts to prosper, flourish, or succeed in any meaningful way in our country.
I do have to be a pedant though and point out that "fatwa" just means "legal opinion" - in common parlance, we use it to mean "death sentence" because we think of people like Salman Rushdie (whom Khomeini sentenced to death under a fatwa in 1989).
If anything, this makes it worse - at least Khomeini had to provide some legal justification for his decision, whereas Obama has refused to do even that.
 A legal justification under Islamic law, which many would agree is itself arbitrary, but that's still marginally better than "trust me, it's legal, but I'm not going to tell you why".
Eschewing the rather more obvious argument that the US military's policy of unannounced drone strikes in ostensibly neutral countries could prove counter-productive, we've got this rather absurd line of argument that someone who has to all intents and purposes publicly declared war on the US, is well beyond the reach of domestic law enforcement and actively encouraging militant attacks on the US military deserves due process and a civilian trial because he was born in America.
But he's happy to endorse his fathers' proposal to reward rather less surgical strikes by dubious third party bounty hunters without any more semblance of due process, provided the alleged terrorists aren't American.
The problem is how that trial would be conducted in absentia would have been a farce. The government would also be concerned about its classified evidence. Worse, if the trial led to acquittal, it would have legitimized his cause.
An acquittal is a scary prospect of bringing out other copycats. But more scary is executing someone without trial that would have been acquitted. But we'll never know. They should have held a trial.
How so? He hadn't been charged with a crime.
It's not the government killing people, it's an individual cop, and if they do so unlawfully the criminal exposure is personal. (In practice, prosecutors are reluctant to actually go after cops in anything but an extreme case, but this isn't unique to police killings)
The preliminary question is whether the state is allowed to assassinate citizens without trial outside wartime, and refuse to reveal why. That's the position of the Obama administration - you have no right to question their assassinations, you must simply accept that the government knows who, when, and how to kill. That's the question Rand Paul is asking in this essay (and a few others have asked before him), that's why he says 'show us the legal case', and talks about the rights of all American citizens to a trial by jury rather than 'this action was wrong'.
If you accept that the state has the power to kill without justification or investigation (before or after the fact), a lot of the other rights you are supposed to have as a citizen become meaningless. The rule of law (especially restricting the state) is vital to protect citizens without the resources to fight the state. That's why this first question is so important, whatever you think of Anwar Awl Alaki. The rule of law restricts the activities of the state and makes it less powerful and effective, that is as it should be, so you shouldn't argue that this makes our government less able to kill people quickly - that's the point.
Moving on to the question you address of whether it was actually legal or justified - typically killings outside the judicial process and outside of wartime are viewed as assassinations and very difficult to justify; I'm not aware of evidence that Anwar Awl Alaki was planning a particular attack or involved in one, and the killing of his son a few weeks later along with some other teenage friends is based on even more tenuous evidence and justification (if any). We didn't mean to kill him is not a reasonable excuse for a government agency outside of war, and to kill someone like a hostage taker a government agency would have to submit to an investigation afterward. Killing without trial or investigation means your government can assassinate citizens at will.
I did not expect to see such arguments on HN. Its more commonly seen in bad B plots of TV shows where the malicious doctor explain that he is saving people by releasing a deadly plague, and the deadly consequences of doing nothing would kill many many more.
An sniper may take out an armed hostage taker because the hostage is in imminent danger, and the sniper reasonably believes that deadly force is the only possible way to protect someones life. Can you honestly say that about Anwar Awl Alaki?
And that's not even the worst case - at least here one of them was a dangerous criminal. But there are many cases of police fatally shooting mentally ill, disturbed people or just somebody that looked dangerous to the police officer at the wrong place in the wrong time.
So there's no question there is an ample precedent of killing US citizens without trial by US law enforcement, and even in situations where they reasonable could be subdued. The question can be only - can US do to the terrorists the same it does to a robber or a mentally disturbed person?
"In an emergency situation, men’s primary goal is to combat the disaster, escape the danger and restore normal conditions (to reach dry land, to put out the fire, etc.)."
My take on that: under metaphysically normal circumstances, a court process is entirely appropriate. If you're in the position of the sniper, though (armed, and in a position to take a shot to save an innocent life) it's entirely rational to take the shot, and hope like hell that you were right.
I think the fundamental problem is the definition of imminent threat to human life and the fog of war. Unlike a situation where a person point a gun at a policeman, imminent threat in a geopolitical stance is hard to assess.
Issac Asimov explored many of these issues in the Robot novels. How do you judge whether an individual is an imminent threat to your country? Or humanity? The answers aren't necessarily black and white.
This is the whole basis of the article.
The Magna Carta?
Oh no, must be the Fifth Amendment. "No person shall be deprived of life ... without due process of law."
Since that letter, I have learned more. The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.”
I joined the ACLU a couple years ago in part because I'd read a lot about the various illegal and immoral activities parts of the government has done and didn't see an obvious way for me, a somewhat normal, random guy, to do much about it. There's a lot of (justified) Internet outrage over the murder of Anwar al-Awlaki, widespread spying, and so forth. But without converting outrage to action, the outrage means very little.
Does my $50 do much on its own? Perhaps not. But it means something.
It is annoying that they keep calling you, though.
Remarkably, and to their credit, the solicitations from the ACLU and other groups did cease. However, despite my strong personal support of the ACLU's legal and political stands, I am not willing to submit myself to that level of junk mail and information sharing again.
It's amazing how quickly an NGO can burn off its good will.
A reminder email or letter, fine. Maybe even a courtesy phone call, I can see that.
I've received no less than 7 or 8 letters from them, two or three phone calls, and I'm not sure how many emails because Google helpfully began filing them away as spam.
At least NPR takes the hint. Once your membership lapses, you get a single email/letter from them.
Since revenue is not profit, and most charities are non-profits anyway, more revenue does not necessarily equate to more money for betterment of the causes the charity serves.
As a complete hypothetical scenario examining two extremes which hopefully do not exist.
Charity B.A.D. could spend 100% of its revenue on seeking more donations and maintaining existing ones, leaving no resources for actually doing anything related to their cause, or distributing non monetary resources donated even. But they double revenue every year.
Charity P.O.R. Could spend 100% of its revenue, which are fixed at $10 a year, on advancing their cause.
My entire point is instead of saying 'increases revenues' you should say 'increases the money it budgets toward advancing its cause.'
The thought behind that is that they should be maximizing their effectiveness not their revenues, and so should have lots of better things to discuss.
What other things do you not do, in case it upsets wingnuts?
Obama's assasination program throws away 800 years of progress of civilizing the world.
That said, even if we some day manage to summon political will to regulate the use of violence by our government more strongly, violence of the threat thereof is an essential part of relations between human polities - framing it as uncivilized will not change that.
I was under the impression that killing US citizens without a trial had been considered pretty much unthinkable until a few years ago, when your president allowed it. I may be mistaken, as I'm not from the US and so not immersed in the culture on a daily basis.
If that's true, I would say that the current development is in the opposite direction of more restraint.
U.S. citizens were killed in the bombing of Hiroshima and Nagasaki, and it is believed that some of the ones that went to fight for the Nazis were also killed by American soldiers on the battlefield.
The president who "allowed it" (how can I put this very tactfully) was likewise, as you put it, not so immersed in the culture on a daily basis (to wit, raised outside the US) - exemplified with Anwar Awl Alaki and Benghazi.
(Am trying to handle a hot topic delicately, pointing out differences.)
Sadly, I suspect the wind will blow the other way on this one.
It is the difference between supporting a mission (even one that many may disagree with), and simply being an organization that exists to continue itself.
America is the only civilized country where the state sanctioned murder of foreign nationals is called an execution. Principles are principles and they extend to all human beings regardless of race or nationality.
Shame on America.
These are killers with an agenda. It is quite literally kill or be killed.
They didn't. That is the issue.
Even a secret in-absentia trial with an appointed defender unable to communicate with the person they are defending would be better than the current system. It would still be a farce, but it would be vastly better.
The current system is state sanctioned murder. Nothing less.
That none of the people in the chain of command is on trial for murder says all we need to know about the callousness of the US government.
You are simply saying that the officials should be taken on trust alone?
An American citizen who open admits committing a crime gets more due process than a harmless child in some third world country. Do American military men ever have to produce evidence before killing children, as in www.youtube.com/watch?v=5rXPrfnU3G0?
Why would the US kill these people if they are not a threat? What would the motive be?
As for your request:
and on and on and on...these are not harmless children.
>You are simply saying that the officials should be taken on trust alone?
No, not alone. There needs to be oversight (and I believe there is) it just doesn't need to be public.
Or because some analyst needed to prove he is fast worker and decided to check "terrorist" box in some internal software. Or because boss decided give bonuses for catch terrorists and someone wanted a new car. The system with no independent oversight will end up abused in millions of ways, most often by people not caring about doing it right.
Heck, even real world cops make tons of mistakes or arrest people just to fill arrested bodies quotas and they do have judges to check upon them, at least in theory.
Or, most dangerously, because that person is outspoken politically dangerous person, not a terrorists and not planning anything, but did actually met with some terrorist twice. Say, muslim active in politics just about to do something uncomfortable for administration.
In the U.S., the founders expressly rejected the idea that courts and judges might bind the hands of the President and Congress in matters of foreign policy and security. The judicial branch is, by design, a domestic institution. When acting abroad, the American President, advised by Congress, retains all the powers that are inherent in an independent sovereignty. And that includes killing outsiders who pose a security threat. Sovereign nations have always had that power, and I doubt there are any that would explicitly disclaim that power.
Clearly, though, the powers the President can project domestically are circumscribed by the Constitution and can be reviewed by the courts. The touchy part is figuring out how to draw the lines: where does the jurisdiction of the court end and the sovereign foreign-affairs authority of the President begin? It is very dangerous to draw the line in a place that overextends the courts' inherently domestic authority and jurisdiction.
I propose that it's better to kill a terrorist like Al Awalki by drone strike than to degrade the judicial system by trying him in abstentia. Trials in abstentia degenerate to farce, and are illegal under federal law (http://www.slate.com/articles/news_and_politics/explainer/20...) as well as under the laws governing the International Criminal Court. Nothing in the Constitution says that due process always requires a trial. Saying that Al Awalki has due process rights, and that those rights are satisfied in his peculiar circumstances by consideration of an executive tribunal, does less violence to the rule of law than trying him in abstentia.
Declaring that the US has the right to murder anyone at any time anywhere without trial or legal remedy is declaring war on the world.
"negative rights": the government is not allowed to stop or punish you from doing something.
"positive rights": the government is obligated to facilitate you doing something.
"natural rights": nothing inherently stops you from doing something.
(Constructive discussion welcome.)
I realize many comments, don't believe the distinction between citizens and non-citizens as particularly important, but I think it is the crux of the matter. As a citizen, before roads, a post office, police force, health care -- before all of those -- I demand that my government not murder me.
If we at all pretend to live in a free society, with government buy the consent of the governed, that right should be the most fundamental.
(Furthermore, there are of course many people who think that the death penalty is acceptable in principle but take exception with how it is currently carried out; possibly believing that our justice system is insufficiently just to use the death penalty.)
While many in the US do support the death penalty, very few are interested in handing the power of judge, jury and executioner over to the police.
So your position is that drones will always be an exclusively US technology? Nobody is going to be capable of delivering a kill by a drone on US soil in the foreseeable future? Nobody is going to justify doing that on the basis of some US actions are terroristic or otherwise illegal? Seriously, we're going to monopolize the technology and moral high ground, never mind "forever" but for five years?
I don't see why anyone would "sing a different tune" in your hypothetical. Would it be contrary to the U.S. Constitution for Yemen to use a drone to strike within the U.S.? No. Could we legitimately take it as an act of war justifying a strike against Yemen? Sure. And I think it would be justifiable for Yemen to take any drone strikes on their soil as acts of war.
In this case, we have the approval of the government of Yemen. Does it violate a provision of their laws? Maybe. Were the shoe on the other foot, our government approving drone strikes by Yemen on U.S. soil would be illegal and treasonous. But that wouldn't be Yemen's problem...
There is a false adultness about claiming that nations are in a "state of nature" and that we should take comfort in living in our exceptional leviathan's panopticon.
Frankly, I don't think that drone strikes are worth the collateral deaths and bad PR. But there is a difference between that and saying that we "can't" engage in them, because of Constitutional law or international law or moral law. Because I think such a position is totally inconsistent with the fundamentally violent nature of international relations.
Clearly, all of these problems disappear if we just sentence people without bothering to try them. I'm glad someone was here to explain this.
Is the executive then to get free reign, unrestrained by the judiciary, to declare a citizen an "outsider"?
As far as I can tell (and the whole situation is bizarre and confusing, so it's hard to be sure of anything), the prisoners there are under US civil jurisdiction, and the ongoing troubles they have with basic rights are due to the fact that they're "enemy combatants" than the fact that they're in Cuba. Being in another country seems to be more about making it in practice harder for US civil courts to exercise their jurisdiction, but not shut them out altogether. There have been quite a few relevant rulings by civil courts.
Is the executive then to get free reign, unrestrained by the judiciary, to declare any given US citizen currently not on American soil the proper subject of an extrajudicial killing?
The first is that most people do not realize how long and difficult the modern training pipeline is for SOF. Operators are extremely valuable and hard to come by and you do not want to risk them unnecessarily when you have other legal means of accomplishing the mission. For example, it takes 12 months to even qualify as a Navy SEAL, and then another 12-18 months of platoon training before a deployment. Only a tiny fraction of those who start the SEAL pipeline actually make it through due to the difficulty of the training. It is for this reason that the Navy offers $40,000 to anyone who can make it through the training (http://navyseals.com/files/ChallengeSEAL.pdf) and reenlistment bonuses for operators can approach $100,000. And never-mind the cost of the equipment used during the operation. How much do you think the stealth helicopter that got destroyed during the Osama Bin Laden raid cost?
The second is that there is some serious armchair quarterbacking going on. I think its crazy to assert what our armed forces should and shouldn't do without a full understanding of what you are asking of them. The complexities of planning a SOF operation that goes deep into a place like Yemen are quite involved. For more on this, I suggest the book The Black Banners by Ali Soufan. It possible (and even likely) that a capture operation for Anwar al-Awlaki was either impossible, or possible but likely to end in the death of al-Awlaki anyway.
There are a lot of people out there who seem to feel pretty strongly about sending our armed forces in harms way in this type of situation. I can't help but wonder if any of those people stand to lose anything if such an operation were to go poorly. It just boggles my mind that we would risk American lives and millions of dollars of training and equipment when we have other legal options that are less risky.
>when we have other legal options that are less risky.
What other legal options are you talking about? What they are doing is 100% illegal, it goes directly against the 5th amendment. Straight from the article:
"The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel."
I believe that the question is not one of capability, but of resources. We could do it, but the cost to do it is deemed too high -- especially when the gov't feels that they can just send in a missile.
First of all, I think you under-estimate the financial cost of highly trained military personnel.
Secondly, there's a metric ton of political capital at stake when the special forces are called in. The US may be more de-sensitized to loss of life than pre-911, but it's still a Big Deal(tm). The decision to send in warm bodies is not taken lightly, in large part because failures can be catastrophic and quite public.
I'm not disagreeing but killing American citizens without due process goes 100% against the fabric of our Constitution. Every special forces member I have met has a fervent desire to support and uphold the document that makes this country great. If we have enough intelligence to target this person with a drone, in my opinion, we probably have enough to send in a team to grab him.
> The decision to send in warm bodies is not taken lightly, in large part because failures can be catastrophic and quite public.
I think this statement holds true for both a drone assassination and sending in US personnel to capture an enemy combatant. Neither should be taken lightly.
I'm not disagreeing with what should be the case, but the current reality is that the decision to use drones in lethal strikes is taken far more lightly than any equivalent measure using conventional or special forces.
Snatch-and-grab in other countries is one of the most hazardous operations that SF does. In fact, it's one of the few operations where all of our advantages go out the window. You're fighting on their turf for a target they know you're after. What's more is that you have to fight them on their terms, as you can't just go in and kill everyone. So, imagine Mike Tyson, except he has one hand tied behind his back and one hand with a Sockin' Bopper. Sure, he'll probably still beat a lot of people, but it's likely that the other guy is going to give him a black eye.
Because of this, there are only a few times when they're willing to do snatch and grab:
1. When the person is especially vulnerable and easy to get. They might be in recently captured terrain, for example. All of his friends have run away, and he's stuck in a hideout. SF can then get a lot of support from other elements - they'll get a company from a nearby battalion, motor transport, medevac if needed, etc. The operation then becomes very lopsided, which is exactly how you want a smash-and-grab operation to go. You'll often get 20-30 people, not counting support, on an operation that takes 5 people. This is how a lot of al-Qaeda leaders got captured in Iraq.
2. When the person is so high-profile that he needs to be nailed and they need 100% confirmation that the guy is captured or dead. See Osama bin Laden.
Not only that, putting boots on the ground to grab people in other countries is a really sticky situation politically. You think the fallout from a drone strike is bad? Take a look at the fallout from SF doing hostage rescue.  Now, imagine us doing it all the time. People would be infuriated in a way that they aren't with drones. I don't know why; after all, the drones are the faceless annihilators, while a snatch team is trying to do the right thing. But the idea of 30 Americans flying into a city to grab someone is much more unpalatable than a drone.
Basically, I don't have a problem with SF doing it every once in a while when it's really, really important, but I wouldn't want them having to do it all the time. Better to have a process in place to use drones, one that we can all look at and vote on to decide whether we want it or not. Of course, if we want to vote for it, we could also dramatically ramp up SF involvement as well.
Granting the premise of your first sentence, you might want to talk to some Navy SEAL veterans (or Army Delta Force, or Marine Corps Force Recon) about the degree of difficulty and expense.
EDIT: And what @doktrin said below.
It's better to just say that the criminal trial procedure doesn't apply in this case than to water it down to make it practical for this case. It's worse for Al Awalki, of course, but better for everyone else.
I would draw the comparison to someone holding a hostage at gunpoint. You don't put that person on trial before final judgment comes down.
Bob is actively trying to kill Americans and is avoiding trial by hiding in a foreign country. Joe is a peaceful guy who's falsely accused of trying to kill Americans, and lives in a foreign country for unrelated reasons. By what system do you propose we distinguish between Bob and Joe?
I would draw the comparison of someone holding a hostage at gunpoint, so cops go and kill an innocent guy in neighborhood that is pretty much unrelated with the person holding the first as hostage. I'd definitely want to setup a way to judge those incompetent cops.
...better have a judgment from a jury, proved beyond a reasonable doubt, after considering the necessary evidence that satisfied any warrant requirements and related rules.
Failure to satisfy this due process - even when the target is a well-known criminal who has fled to another country - could be evidence of the murderer having violated their oath to office. It's certainly not a quality we should allow in our politicians, officers, or civil servants.
/yes, I realize that's not the antecedent for "someone" you intended
Now how should we make sure that they are indeed trying to kill American citizens before we punish them?
It should be fairly simple to find a single charge made by the US government that he was killing american citizens...
It really irks me when this kind of discussion is focused on US citizenship, as if nobody else counts. Either the US government has a right to decide that somebody somewhere is so dangerous that he needs killin', and then go whack him, or it doesn't. I don't see how it's not OK on due process grounds, but only if the guy is a US citizen. Anyway, this kind of rule is likely to result in some kind of a circular arrangement, in which the US whacks undesirable French citizens and France whacks German citizens in return and then Germany reciprocates by killing US citizens, and hey - no rules are broken.
BTW, I can't say that I am against all government-ordered killings in principle. Governments conduct wars and military operations, sometimes with good reasons. And wars don't just result in killing people "on the battlefield", as Rand Paul says. Suppose that some terrorist group is preparing an attack somewhere - are you supposed to send special forces after them with a death sentence from some court in their pocket?
In the case of the "late unpleasantness", "war of Northern aggression", "war of secession", "civil war", whatever you label it: those targeted had declared themselves a separate country, wore uniforms thereof, and operated in clear cooperation for military ends. Be that deemed international war, insurrection, etc it was clearly under conditions where individual trials were infeasible, akin (at minimum) to police attempting to take down an armed gang violently resisting arrest: trials only work when the defendant is engages in docile participation in the judicial process.
And yes, if one is not operating under insignia (usually of a nation) in war, to wit a citizen acting treasonously out of uniform and out of organized conflict, largely independently, there is indeed the option of "trial in abstentia" and sending in special forces to extradite - with extreme prejudice if necessary.
Every nation has the sovereign right to kill people in other nations. It's a fundamental precept of sovereignty. However, nations also bind themselves to their own laws. In the U.S., the Constitution gives U.S. citizens certain rights even when they are not on U.S. soil. That is the only thing that would make it illegal for the U.S. to kill someone on foreign soil.
Civil governments remove this "state of nature", curtailing liberties and creating rights - for example, giving you the right not to be murdered by while taking away your liberty to murder other people.
As there is no government of governments to pass or enforce international laws, nations are in a permanent state of nature. One nation bombing another over some land is like one wolf fighting another over some dead prey - they're just doing what they naturally do. It's not like the wolf-police are going to stop them.
Right, its a thought experiment like Schrödinger's cat.
Sovereignty simply means the nation in question can govern itself. It says nothing about having the right to kill people of other nations.
("And here we have the plain difference between the state of nature and the state of war, which however some men have confounded, are as far distant, as a state of peace, good will, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction, are one from another. Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho' he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge.")
Read the whole chapter. While he disagrees with Hobbes, who felt that men without government were always in a state of war, he still allows that when there is a "declared design of force" and no "common superior on earth to appeal to for relief" that in such a situation a state of war exists and one is entitled to kill even a thief for taking one's coat.
See also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) ("It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens . . . .")
Moreover, I am not convinced that quoting Locke, Hobbes and US judicial precedent provides enough proof that "every nation" has a "right" to "kill people in other countries". Enlightenment philosophy is not an ultimate argument, you know.
Personally, I think this viewpoint is morally bankrupt and no government employing this "right" should be supported by its citizens.
Here, I'm not arguing that my viewpoint is "right" or "wrong" or that Locke is "good" or "bad." I'm arguing that it's consistent with the philosophical underpinnings of the Anglo-American legal and political system. Like it or not, Enlightenment thinking and Lockean philosophy in particular are an important reference point when evaluating questions about America's political system.
I'm fairly sure that if we were discussing Iranian intelligence blowing up airliners of US nationals you'd not be using that argument.
Someone has to de-escalate. I know that's not a popular view in a country where the answer to gun violence is more guns, but it's the only way to peace in the long run.
I agree with you that it's very strange and tribalistic to think that Americans have "more rights" than any other person. If we think that a US citizen should receive due process before being killed or imprisoned indefinitely (as in Guantanamo) without evidence, so should other people. Unfortunately, countries generally protect citizens and selectively ignore the rights of foreigners.
> "Suppose that some terrorist group is preparing an attack somewhere - are you supposed to send special forces after them with a death sentence from some court in their pocket?"
Here I think you're trying to use a rare occurrence, for which we already make exceptions, to argue against the rule. Posing an imminent threat changes the rules. If you are about to shoot someone or bomb a building, you don't get a trial.
It'd be nice to have some visibility into when and where it was determined that someone was an imminent threat and whether we check that they actually were, but this letter is more about how the administration justified the killing of citizens that were not, so far as we know, imminent threats. We don't know at this point whether the administration is stretching the meaning of "imminent," whether they had info they're not sharing with us, or if they just chose to execute someone who was on the wrong team.
Re: your hypothetical. Yes, you send in special forces to stop them based on your intel. If they lay down their weapons, you capture them. If they fire on you, you kill them. Americans don't kill people just because we think they are planning on doing something bad.
There's a way to get rid of a president. It's called impeachment. Impeachment is a political trial for political crimes. Basically looking like an idiot. It's not a criminal trial.
Why is that important? Because we don't criminalize politicians doing their job. It's expected that the president do things which would never be acceptable if an average citizen does them: kidnapping spies, blowing up things here or there, sending warships in harm's way, and whatnot. We don't call these crimes because in point of fact somebody has to make decisions like this. It's part of the job.
(I'm not approving of any of this, simply trying to explain how the system works.)
So I agree with Mr. Paul's first sentence, with one change: "I BELIEVE that the systemic killing of American citizens without a trial is an extraordinary concept and deserves serious debate."
Or, in other words, killing any American overseas without a trial is wrong all the time, but I understand presidents do things that are extraordinary. One of the jobs of Congress is to provide a check on his power. (Congress has made a terrible mess of this oversight responsibility. Congress is ultimately at blame in all of this for giving a wink and nob when it was started.) What's, for lack of a better term, evil, is the creation of a system to automatically do things that bend the rules to this degree without the president having any skin in the game at all. He gets this crazy-broad power, and he's not risking his office when the decision is made to use it. That is insane. And I do not believe a debate has anything at all to do with it. It's wrong. It should stop. There's nothing more to be said.
If the president wants to go off on some bone-headed assassination adventure, he won't be the first one, Congress should debate and take action depending on the specifics. But if he wants to create a system whereby robots are used to assassinate citizens abroad on a regular basis without trial? There's no amount of debate in the world that's going to make that work.
Opposed to killing anyone without a trial?
Is it acceptable to bomb a tent of generals planning a campaign in the middle of a war?
Is the United States at war with Yemen? No.
Are the Yemenis being bombed civilians or military? Well, they're not the military of any particular state. We're in a murky territory here now, where the US gets to unilaterally declare war on individuals and deem them "not civilians" so it's ok to bomb them.
We are clearly not at war with Yemen. Yemen, the state, is cooperating with US efforts in their country.
The US gets to unilaterally go to war with individuals (that are part of a larger movement that relies on extreme violence against non-combatant civilians to achieve its goals, it is important to remember) because they've unilaterally gone to war with the US.
I hope I am no longer around when a different, tyrannical regime develops a technology that gives them an edge that negates all of our defenses and we are subject to random drone attacks on our neighbors, communities, cities.
Face it, we are an unprincipled, unjust tyranny. We are more like than not any other tyrannical regime that had legal protections in place for the approved group of people, while totally negating those rules for people that weren't part of the approved group. It's nothing more than present day, larger scale primitive tribal society. It's pathetic.
If we want extrajudicial executions, we need transparent and verifiable proof and capital punishment for abuses and even mistakes. The higher the stakes, the more costly the mistakes.
If everyone is so confident that there is nothing wrong with their actions, why are they not stepping forward demanding capital punishment for any transgressions.
It kind of says it is OK to kill non-citizen untermensch. I find this attitude very common and highly disturbing.
Russian army managed to takeover Crimea with only handful of deaths. If you count death toll, US army looks like bunch of happy-trigger-amateur-cowboys.
Why does the author not doubt it? I doubt it until I have seen evidence.
It is my understanding that Awlaki called for the murder of American civilians, but I do not believe that meets the legal standard of treason. The Obama administration has said that Awlaki was involved "operationally" in planning attacks on Americans, but the national security state has said all manner of speech constitutes operational involvement in terrorism, including Javed Iqbal's broadcast of Al Manar, a Hezbollah-controlled television channel, and the Humanitarian Law Project's attempts to teach peaceful conflict resolution strategies to a terrorist group.
It's possible he also believes that Awlaki committed treason, but more importantly, by making that point without any kind of moderation, he's making it substantially harder to accuse him of wanting to be soft on those horrible, evil terrorists.
He's also implicitly making the argument for a trial stronger: If it is entirely certain that Awlaki committed treason, then surely the government has clear evidence that would have made a trial a formality?
His propaganda wasn't that America sucks, it was a call to take up arms against US targets. He exchanged emails with the Ft. Hood shooter, he advised the underwear bomber, he was not a good guy..
Spies are under similar guidelines..sometimes they get trials sometimes they just get shot
Sure, they probably Mostly get bad guys, but the implications and ramifications of being able to kill anyone in the world at any time by remote control at the whim of a select group of people are too large to ignore. The fact that some of them are US citizens is just legal icing on the cake.
It is asked very often but bears repeating one more time... Why is it that people feel the need to take up arms against the US? I don't think this is a namby pamby kumbaya question either but is directly relevant to our long term security.
Note that I'm talking about executions, not killing as part of warfare.
Not all Americans agree with this behavior.
I'd be curious to see where you, personally, would draw the line.
Is it not warfare to kill someone that is plotting on harming civilians as a primary means to advance their agenda?
I think you just defined a whole lot of law enforcement operations as warfare. I do not agree with that definition, nor do I suspect many would.
If the US had invaded Yemen and they were targeting specific people to help with their strategic objectives there, that would be a more fuzzy area, and the morality of that would depend on the situation of the invasion.
As it stands, the drones are executing people in countries the US is not at war with.
That said, where do you personally draw the line? Now, take that situation and imagine that instead of the US sending robots to kill muslim preachers, that some place like Iran or China had sent in robots to the US to kill a US citizen like Jim Bell (after all, he has advocated for assassination markets, so the same argument can be made that he is dangerous). Is the line in the same place in that situation?
Because we are not fighting a state. We are cooperating with these countries not fighting them. They don't have the resources (or the resources are unreliable) to treat these things as law enforcement problems.
And I'd personally draw the line at a clear and credible threat. If they demonstrate they have the will and have, or are actively trying to obtain, the means to attack.
For example, if someone speaks about killing people then amasses a bunch of explosives, it is time to act. If someone seems to be acting in a command capacity to people that have the means and will, as previously described, it is time to act.
On the other hand, if someone happens to be in contact with someone in that first group but does not seem to be aiding them (passing commands, gathering materials etc.) then that person should not be targeted.
If we could go to these countries and tell them "Listen, we have intelligence telling us that this person is training people and sending them into this country to kill people. Could you go grab them for questioning and maybe gather some evidence and put them on trial?" and if they would act on that, that'd be great. I'd be all for that. But that seems like wishful thinking more than anything.
Seriously - sovereignty of other countries is a thing. Learn to respect that.
The word "terrorist" has become so powerful that it supersedes judicial processes. In early 2002, federal agents harassed many of my friends who belonged to a mosque in the Northeast. Some were detained and abused by police officers. Sadly, this behavior has continued, further evolving into a vehicle for racism and religious prejudice. I recall a story on HN several months ago about a startup investor who was detained in an airport all day because he was Muslim.
If you don't like your neighbors because of their names, their traditions, the color of their skin or the smell of their food, you can simply call them terrorists. That word, even when it is devoid of concrete evidence, has the power to ruin someone's life. In this specific sense, our modern fear of "terrorists" reminds me of the power of the word "communist" during the 1950s, in the McCarthy era.
Eventually, most Americans saw McCarthy's so-called Red Scare for what it was: an excuse to act based on personal prejudices and political agendas.
Technology has simply given the tool to anyone and its a matter of time before that threat becomes far to real against even safe targets
That doesn't seem so fail-proof seeing as maybe 4% of death row inmates have been wrongfully convicted.