I confess, I was having a hard time getting too worked up over the leaked DOJ White Paper describing the legality of the Administration policy for assassinating American citizens abroad who are supposedly actively working against our interests. But then I was asked by a serious person I take seriously to write about it “from a lawyer’s perspective”.
So I read it, and I find myself in what seems to me to be an odd place with regard to it: opposing another lawyer who I respect a lot…Mark Levin. Earlier this week, I was listening to Mr. Levin when I was driving home from work, and he was talking about how he thinks that the media that is actually talking about it (as the usual suspects have been expectedly silent on the matter) is wrong, and that as a Constitutional scholar, he has no problem with it. As I listened with a measure of surprise to him talking about it, I wondered what it was that was in the white paper that left him so unconcerned about it (because I hadn’t yet read it). My takeaway was that the conservative media’s opinion on it tries to take war off the battlefield and put it in the courtroom, which is what we expect the left to do, with the abortive attempt to give Kalid Sheik Mohammed a civilian trial, and to have civilian proceedings for GITMO detainees as well, and because these al-Qa’ida leaders, US Citizens or not, are trying to kill us.
I remain unconvinced, largely because in this case, Mr. Levin is wrong. (And with this statement, my chance to ever have him sign my copies of Men In Black, and Liberty and Tyranny go straight down the toilet.) And someone needs to say so, even if he is unlikely to take notice, or care.
Why is the estimable Mr. Levin wrong? I’m glad you asked.
First, the KSM trial, and a lot of GITMO detainees are NOT citizens. I know it has been Demcong policy for decades to devalue the worth of citizenship, spearheaded by their constant attempts to give away many of the benefits to those who have not earned it, or made any attempt to lawfully attain it, and bolstered by their constant cultural attempts to balkanize us with “identity politics” and the inevitable hyphens that accompany it, and their moral relativism, which stubbornly maintains that there is nothing exceptional about being American, and there is nothing that makes our culture better than anyone else’s, despite the sometimes frantic attempts people from other nations will make to come here, and live and breathe FREE. But if the essence of American conservatism is an appreciation of the freedoms we have guaranteed to us, then it also means that citizenship means something.
This isn’t a new idea, and it isn’t even a uniquely American idea. In the Bible, the Apostle Paul was a Roman citizen. His ministry was offensive to Rome, and in some cases, breached the Pax Romana…an offense worthy of death for those who weren’t citizens. But in Paul’s case, it meant that he had rights that not every person who lived in the Roman Empire had. Among those were the right of a citizen to not be summarily executed on the authority of a government functionary. And today, nations recognize that citizenship affords rights and privileges, and these are not casually given away to those who do not have that status. Heck, even Mexico treats its citizens much differently than non-citizens. Don’t believe me? Try to sneak into their country along their southern border. Accepting the idea that any citizen can be targeted for assassination on the say so of the President, or “an informed, high-level official of the U.S. government”, even within the framework of the test set forth in the White Paper is unacceptable because it further cheapens the concept of citizenship.
Mr. Levin is also wrong with his argument that to oppose the practice and adhere to the idea of due process is trying to drag war into the courtroom the same way that leftists would like. Resistance to an assassination protocol for American citizens is distinguishable from an abortive and ill-conceived attempt to try KSM in Manhattan if for no other reason than KSM is NOT an American citizen, and as such does not have the same due process rights as a citizen. While there are instances where a representative of the government may end up killing a citizen without due process, those situations are NOT necessarily ones where death of that citizen is the reason why that action is taken. Suicide by cop doesn’t happen because the cop has marked the citizen for death. It happens because that citizen (or not, in some cases) does something to deliberately put someone else in danger, and the police have to act in order to protect the public, or themselves. A U.S. citizen who is on a battlefield shooting at our forces could likewise expect that they are going to be killed, but again, the difference is that there was not a mission planned and dedicated to the sole purpose of ending that citizen’s life.
The White Paper itself sets forth the following test for determining if it’s ok for our federal government to snuff a U.S. citizen in a foreign country:
“In the view of these interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances:
(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
(2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether a capture operation becomes feasible; and
(3) where such an operation would be conducted with applicable law of war principles.”
Of course, this standard raises all manner of questions that should be asked. “Who is “an informed, high-level official”? A Cabinet Officer? A member of the Joint Chiefs of Staff? A czar? The Commissioner of the Internal Revenue Service? The Senate Majority Leader? The standard as it is set forth in the White Paper is incredibly nebulous. The Imminent Threat standard as set forth in the White Paper raises questions as well. On page 7, the White Paper makes clear that this requirement “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” While this was followed by a somewhat unconvincing argument that such a burden would reduce American defensive options, the explanation really goes off the rails at the end.
(what constitutes an imminent threat “will develop to meet new circumstances and new threats….It must be right that states are able to act in self-defense in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.).”
Got that? We use the word “imminent” without defining it, claim self-defense without having to prove what we’re defending against, because we think that people who don’t like us are going to do something bad, somewhere, at some time. Sure. That’s certainly enough to allow government to deprive a citizen of their right without due process.
The next question is “Who is it who is monitoring who decides if capture is feasible?” This is a fair question, if only because this administration has proven to not necessarily be inclined to give much credence to the military’s recommendation on various operation that it has been tasked to accomplish. I’m not sure that there is much incentive for the “informed, high-level official of the U.S. government” to consider an option that isn’t as easy as using a Predator drone and smoking the citizen.
Finally, if this is “to be conducted with applicable law of war principles”, aren’t we back to bringing the war into the courtroom, just as Mr. Levin wants to avoid? Hasn’t one of the main arguments against the war in Afghanistan been the rules of engagement that have hampered and even endangered our soldiers?
The White Paper also goes to great lengths to point out that the policy applies to “senior operational leaders of al-Qa’ida or an associated force”. Who decides who is a senior operational leader? Who decides what is an associated force? And why is this process not subject to some kind of oversight?
While the White Paper lays out a legal foundation establishing the legality of this practice sufficient enough to give cover to a Wise Latina Woman or Laney Kagan, I cannot support it, not only for the reasons stated above, but also for the reasons not stated by Mr. Levin, or the authors of the White Paper.
I discussed this for a while with a friend who believes that this policy is just fine, because guys like Al-Zwahiri have “committed treason” against this country, and acted in a fashion that is inconsistent with citizenship by plotting to kill Americans. My problem with this is that Treason is actually the only crime set forth in the Constitution, and the standard of proof is specifically set forth in the Constitution, in Article 3, Section 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
While treason is punishable by death, unless you are killed in the act of committing it, the state may only impose this penalty if you are convicted of it. While this standard was drafted before the due process requirements of the 5th and 14th Amendments, it comports with them. And, unless you are a naturalized citizen, a conviction for treason will NOT result in the loss of your citizenship, as only naturalized citizens may be involuntarily stripped of their citizenship. The only way for a natural-born citizen to lose their citizenship is by renunciation according to 8 U.S.C. 1481(a)(5).
Finally, my last objection is my lack of trust in government. Government has proven to us time and again that there is no power that it won’t abuse at some point. And we currently have an executive branch that doesn’t respect the Constitution as it is, whether it is determining for itself whether or not Congress is in recess for the purpose of making appointments, or by brazenly declaring that the President decides who is “entitled” to Second Amendment rights. I would have trouble trusting a different administration with such a nebulous authority to abrogate basic Constitutional rights, let alone one that believes that the President can determine who is entitled to exercise Constitutional rights. Citizenship means more than that, or we have allowed them to render it worth little or nothing at all.
Sorry to go O.T. before this even starts, BIC. But I just received this and thought it pretty much summed up how I feel about President Nero.
SUMMATION OF BARACK AND MICHELLE
by Mychal Massie, a respected writer and talk show host in Los Angeles .
The other evening on my twitter, a person asked me why I didn’t like the
Obama’s? Specifically I was asked: “I have to ask, why do you hate the
Obama’s? It seems personal, not policy related. You even dissed
(disrespect) their Christmas family picture.”
The truth is I do not like the Obama’s, what they represent, their ideology,
and I certainly do not like his policies and legislation. I’ve made no
secret of my contempt for the Obama’s. As I responded to the person who
asked me the aforementioned question, I don’t like them because they are
committed to the fundamental change of my/our country into what can only be
regarded as a Communist state.
I don’t hate them per definition, but I condemn them because they are the
worst kind of racialists, they are elitist Leninists with contempt for
traditional America . They display disrespect for the sanctity of the office
he holds, and for those who are willing to admit same, Michelle Obama’s raw
contempt for white America is transpicuous.
I don’t like them because they comport themselves as emperor and empress. I
expect, no I demand respect, for the Office of President and a love of our
country and her citizenry from the leader entrusted with the governance of
same. President and Mrs. Reagan displayed an unparalleled love for the
country and her people. The Reagan’s made Americans feel good about
themselves and about what we could accomplish. His arrogance by appointing
32 leftist czars and constantly bypassing congress is impeachable. Eric
Holder is probably the MOST incompetent and arrogant DOJ head to ever hold
the job. Could you envision President Reagan instructing his Justice
Department to act like jack-booted thugs?
Presidents are politicians and all politicians are known and pretty much
expected to manipulate the truth, if not outright lie, but even using that
low standard, the Obama’s have taken lies, dishonesty, deceit, mendacity,
subterfuge and obfuscation to new depths. They are verbally abusive to the
citizenry, and they display an animus for civility.
I do not like them, because they both display bigotry overtly, as in the
case of Harvard Professor Louis Gates, when he accused the Cambridge Police
of acting stupidly, and her code speak pursuant to now being able to be
proud of America . I view that statement and that mindset as an insult to
those who died to provide a country where a Kenyan, his illegal alien
relatives, and his alleged progeny, could come and not only live freely, but
rise to the highest, most powerful, position in the world. Michelle Obama
is free to hate and disparage whites because Americans of every description
paid with their blood to ensure her right to do same.
I have a saying, that “the only reason a person hides things, is because
they have something to hide.” No president in history has spent over a
million dollars to keep his records and his past sealed.
And what the two of them have shared has been proved to be lies. He lied
about when and how they met, he lied about his mother’s death and problems
with insurance, Michelle lied to a crowd pursuant to nearly $500,000 bank
stocks they inherited from his family. He has lied about his father’s
military service, about the civil rights movement, ad nausea. He lied to
the world about the Supreme Court in a State of the Union address. He
berated and publicly insulted a sitting Congressman. He has surrounded
himself with the most rabidly, radical, socialist academicians today. He
opposed rulings that protected women and children that even Planned
Parenthood did not seek to support. He is openly hostile to business and
aggressively hostile to Israel . His wife treats being the First Lady as her
personal American Express Black Card (arguably the most prestigious credit
card in the world). I condemn them because, as people are suffering, losing
their homes, their jobs, their retirements, he and his family are arrogantly
showing off their life of entitlement – as he goes about creating and
fomenting class warfare.
I don’t like them, and I neither apologize nor retreat from my public
condemnation of them and of his policies. We should condemn them for the
disrespect they show our people, for his willful and unconstitutional
actions pursuant to obeying the Constitutional parameters he is bound by,
and his willful disregard for Congressional authority.
Dislike for them has nothing to do with the color of their skin; it has
everything to do with their behavior, attitudes, and policies. And I have
open scorn for their constantly playing the race card.
I could go on, but let me conclude with this. I condemn in the strongest
possible terms the media for refusing to investigate them, as they did
President Bush and President Clinton, and for refusing to label them for
what they truly are. There is no scenario known to man, whereby a white
president and his wife could ignore laws, flaunt their position, and lord
over the people, as these two are permitted out of fear for their color.
As I wrote in a syndicated column titled, “Nero In The White House” – “Never
in my life, inside or outside of politics, have I witnessed such dishonesty
in a political leader. He is the most mendacious political figure I have
ever witnessed. Even by the low standards of his presidential predecessors,
his narcissistic, contumacious arrogance is unequaled. Using Obama as the
bar, Nero would have to be elevated to sainthood… Many in America wanted
to be proud when the first person of color was elected president, but
instead, they have been witness to a congenital liar, a woman who has been
ashamed of America her entire life, failed policies, intimidation, and a
commonality hitherto not witnessed in political leaders. He and his wife
view their life at our expense as an entitlement – while America ‘s people
go homeless, hungry and unemployed.”
If we don’t manage to reestablish character as a desirable trait in our
society, we simply will not survive —
“when injustice becomes law, resistance becomes duty”
-Thomas Jefferson-
Speaking strictly as a laymen I think the objections here are mostly along the lines that were raised with the USA Patriot Act in that too many people like the idea in principle except when their political opponents have the reigns of power.
Awlaki was clearly allied and supportive of the enemy. He was clearly a source of intellectual and “legal” (in a shari’a sense) justification for any number of acts. His treason, regardless of the degree to which he considered himself an American citizen, was brazen and blatant. The fact that he wasn’t actually on a clearly defined battle field is not persuasive as most planners in any military or quasi-military organization are not exposed to the battle. The idea that he wasn’t holding a gun to the head of one of our thus he can not be killed is a dangerous position. To use an example by Ilya Somin at Volokh Conspiracy what if Yamamoto had become an American citizen or more aptly by some accident of history been born here. Would shooting him down been extra-legal? Would you have tried the General, the crew and the DC bunch in charge with murder? As much as I would love the rouge crypto fascist Roosevelt to be tarnished by the brush of history this would not be one of those things he for which would deserve opprobrium.
However I am highly sympathetic to rest of your argument. Policies that are deemed fascist or fair play depending on who is making the decisions are not really good policy. Like Milton Friedman said we shouldn’t be trying elect the right men but we should be creating policies that give incentive to those we elect do the right thing.
There is way too much subjectivity in the parameters of this policy as we have a President,a party and their camp followers who have no problem throwing around epithets like, hostage taker, hate group, nazi and the taliban wing of the republican party. Way too many of them consider those who oppose their lawless power grabs as enemies of the state and would have no problem categorizing us as domestic terrorists. Oh wait that already has happened on multiple occasions.
This situation kind of reminds me of the garage seen in “Magnum Force” where Eastwood confronts the cops responsible for the string of vigilante murders.
“Where does it end. Pretty soon you’re executing people for spitting on the sidewalk”(paraphrase)
As a practical matter I have no problem taking out Awlaki as to me his complicity with al-Qaeda was well known and beyond dispute, his son not so much. Whether killing the senior Awlaki was the most prudent action is certainly something that is open to audit from any number of perspectives.
However the principle still stands. Due process is meant to mitigate the arbitrariness of those in power who would use their power not to protect the citizen but protect and enrich themselves and continue their usurpation. This regime is openly contemptuous of those that insist on our abrogated rights as guaranteed to citizens under the constitution and as an open opponent of this regime and it’s avarice for power I am particularly sensitive(assuming I would or could rise to such prominence that they would bother) to due process as they misrepresent and twist the clear meaning of the intent of the constitution and engage in a perverted legalistic legerdemain that rationalizes their lawlessness.
As you can tell I am of two minds on this. I understand why Awlaki needed killing but I also understand that this puts us on a dangerous path and post hoc rationalizations are insufficient if the regime kills the wrong person by mistake or on purpose. This regime has shown enough bad faith that nothing they do should go without second guessing and considering the slide into “pragmatics” by such stellar intellects in the other party such McCain, Graham et al who voted for the execrable and anti-American traitor John Kerry as new foreign policy errand boy for Emperor Obama, I don’t think I trust them with these type of decisions either.
FX, I realize that it may be a hair’s breadth distinction, but if “American Citizen” Yamamoto was still serving in the military of a nation that had declared war against us, I think it is distinguishable from this example.
I guess that’s where we differ in perception.
al-Qaeda is a military organization in the service of making their creed sovereign over the entire world. al-Qaeda declared war on us long ago. Awlaki had taken up it’s cause and lived in their midst and thus was an open combatant against his country of birth.
The fact that al-Qaeda is a military organization without a recognized country(it is an avatar for a certain segment of the “umma of Islam”) makes it a legal gray area from what I’ve read(mostly John Yoo’s “The Powers of War and Peace”). This is why the original AUMF used the term “use of force” rather than “war” is they were trying to split the legal hair of getting at al-Qaeda while invading a country whose people had nothing really to do with al-Qaeda. The way I understand it, war, in international terms, is a legal state and it changes the duties and rights of governments towards citizens of the now enemy county. It allows you to detain and expel “enemy aliens” and creates a new legal status towards the government and citizens of the enemy country.
That being said I do understand your position.If a clearly bad actor like Awlaki can expect the protection of “due process” then the rest of us(for the moment) are safe.With this regime that may be a lot to hope as it seems Americans in America are being assaulted everyday into giving up our rights and property to satisfy the egos and moral vanity of a ruling class that seeks to extend it’s rule.
But also understand this as well. Awlaki had long ago divorced himself from the western tradition that evolved the concept of due process and was actively looking to overthrow the order he inherited due to the accident of the place of his birth and that his epigones now wish to assert. Prudence dictates that those waging war(or war by another name) against us need to be handled and judged by the law they wish impose not the tradition they wish to subvert.
The above does not preclude some manner of due process.
The article I cited above has a possible solution to the due process conundrum
Assuming AUMF is a valid authorization of war on what pretext does a court intervene in the prosecution of such a declaration. The is no constitutional role for the judiciary in the war making process?
Congress could be the source of some sort of ad hoc committee along those lines that reviews such warrants as they are responsible for both the law and the funding.
Turn them speakers way up and sing along!
[…] But to get lectured by a cadre of people, who consistently demonstrate a dearth of intellectual integrity and stamina is beyond the pale. We’re consistently told that liberals are the true champions of civil liberties, even while it is liberals who work to constrain or remove Constitutional rights they don’t like (the 2nd Amendment), or limit speech they don’t agree with (fairness doctrine). However, there is no hypocrisy like this, to decry the abuses of power by Bush (warrantless wire taps, Patriot Act) and yet cuddle up to an Administration in Obama who has taken every single thing Bush did, and multiply by factors. Obama has expanded warrantless wire taps and Patriot Act actions, he has expanded drone operations and is openly granting himself the authority to be judge, jury and executioner against U.S. citizens that he deems a threat—an extremely slippery slope exceptionally explained by BiW. […]
I think Awlaki had no reasonable expectation of being afforded the rights of citizenship nor do I believe he felt he was under the cover of the US Constitution.
I think the Right in this matter is experiencing some of the same failings as the Left has in the past afforded scumbags rights above their station.
Hey man! Things are looking up. The DOW is at 14,000+ and everything is going hunky.
Here’s a little chart to soothe the brow (gulp):
http://www.aei-ideas.org/2013/02/missing-in-action-obamas-entrepreneurship-agenda/
[…] abroad? I have been thinking about this off and on for about a week now, and I think back to my previous post on the DOJ White Paper that outlined the government’s guidelines for making the decision to […]