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Light of Truth - In Warfare, it is Legal to Kill Your Declared Enemies


by: Eric Roberson

Sun Oct 09, 2011 at 10:50 AM CDT


A little more than a week ago, President Obama ordered, and the US government executed, a drone strike in Yemen that killed Muslim Cleric and avowed Al Qaeda terrorist leader Anwar al-Awlaki.

Awlaki was infamous for being an American citizen, and the mastermind of numerous attacks against the United States in the name of Al Qaeda.  

Although the Congressional leadership of both parties have supported this strike, some limited leaders and pundits on both the left and right have been critical.  

From the left, MSNBC host Rachael Maddow and several ACLU leaders have questioned the legality of this action based on the fact that al-Awlaki was a US citizen.

From the far right, Republican/Libertarian Ron Paul has gone further, stating:

• "It's pretty clear that you can't take a life without due process of law, especially of an American citizen, ....We've never had a policy that said we can put somebody on an assassination list by a secret tribunal."  Paul said Obama should have ordered al-Awlaki's arrest and brought him to trial in the United States.  Paul has even suggested that Obama could be impeached for ordering the killing of an American citizen, "I think it's an impeachable offense,"

This morning the New York Times reported the detailed legal analysis the Obama Administration performed prior to the ordering the killing of al-Awlaki: http://www.nytimes.com/2011/10...

For me, as a former Naval Officer, what Paul and Maddow are missing is that (1) Al Qaeda has declared war on the United States and backed it up with repeated and numerous attacks, killing thousands of Americans; (2) al-Awlaki has openly declared himself to be a member of Al Qaeda; (3) al-Awlaki has been limked to numerous attacks on the US, including the Fort Hood killings, and (4) Congress has authorized the use of force against Al Qaeda.  

This war is different than most of our prior wars - the lack of uniformed fronts, etc...  There are valid arguments against the wisdom and facts of expanding the war to include Iraq, which are not addressed here.  

However, there is simply no doubt that Al Qaeda attacked the USA and that the Congress authorized military action in a de facto declaration of war.  To most Americans it is permissible in a time of war to kill an openly announced member of the enemy who is actively planning attacks on the United States.

While there are reasons to insure that the use of military force be within the bounds of law, it seems clear that the Obama administration has gone through the difficult steps of doing so.  Certainly these actions were legal.

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Capturing vs. killing isn't so simple (0.00 / 0)
In war time capturing someone is a lot more easily said than done.

I fully agree with your analysis.

"I love America more than any other country in this world, and, exactly for this reason, I insist on the right to criticize her perpetually."- James A. Baldwin


Not convinced (0.00 / 0)
I'm not convinced that this killing was legal, justified, or in our long-term security interests. Al-Awlaki was not apparently killed on any battlefield, and it's not clear to me how far his actions rose beyond mere advocacy to active conspiracy in terrorist acts. I don't think you can legally justify a policy of ongoing worldwide war that allows us to assassinate "enemies" with impunity. I believe even the current Supreme Court would hold that this American citizen had some due process rights before being summarily executed. Of course if you take every word of the administration at face value the action looks more reasonable. I'm personally a supporter of the President generally, but the political implications here are disturbing. Also, the public nature of this killing seems likely to provide inspiration and motivation for new terrorists.  

And if you don't believe me, (0.00 / 0)
here's constitutional law scholar Bruce Ackerman:
http://www.foreignpolicy.com/a...

Agree to Disagree (3.00 / 1)

Eli:

While I do not doubt your sincereity or patriotism, nor those of the learned professor, there are two factual flaws with his analysis.

First, to claim al-Awlaki was a mere preacher and not operationally involved is factually challenged.  By his own words, al-Awlaki was actively involved in planning strikes.

Second, while Al Qaeda in the Arabian Penensula was not a seperate group at the time, this does not alter the fact that they are apart of the Al Qaeda network by voluntary action.  This would be like saying we could not sink a Imperial Japaneese navy ship that was built after Pearl Harbor.  In other words, in my opinion, there is no distinction, as far as our legal ability to strike, any group that is openly a part of the Al Qaeda network.  (There is a potentially different analysis for the wisdom of attacking all groups simultaneously, but that is a political and/or military analysis, not a legal one)

Democrats must be able to ask tough questions about military action without having their patriotism questioned, or questioning the patriotism of those who disagree.  I appreciate your question, and accept you not being convinced.

Even so, following international and constitutional law does not mean being defenseless or impotent when an international organization declares war against us.

This is an asymetrical war.  Al Qaeda hides behind the protection of human shields and a false and bastardized versin of Islam.  They use their lack of uniforms against us, knowing we follow the law.

Those who publically claim Al Qaeda membership for themselves, and who plan attacks against us, cannot attack us without fear of legal and righteous retribution.  This is not a robbery or mugging, it is open actions of terrorism on a global scale.

We cannot go and accuse anyone who lives in the Middle East of being Al Qaeda.  But the legal analysis of the Obama Administration is more than Al Qaeda gave anyone on 9/11 and more than meets Constitutional muster.


[ Parent ]
Another supporter of Eli's position (0.00 / 0)

Eli:

Here is a link to another post showing the strong opinions on this topic.

http://www.huffintonpost.com/2...

In the original New York Times article I linked to there are two prominent civil libertarians identified, David Barron and Marty Lederman, who had been critical of waterboarding and certain other war decisions made by the Bush Administration (Having been waterboarded in POW School, I concur that waterboarding is torture, inhumane, and produce inaccurate intelligence).

The Huffington Post piece includes a quote from Jonathan Turley, a scholar at George Washington University, describing the Barron/Lederman memo as being "stabbed in the back by a friend."

I think it is interesting that the authors who determined al-Awlaki was an unlawful enemy combatant include two prominent civil libertarians, and that this is not enough to satisfy even their closest friends.

While I do not have the depth of legal background in this area of these three scholars, and while I respect the opinions and the legal practices of the civil libertarians on both sides of these linked articles, I still think the President made the right call, and a legal one.

Your fellow citizen. Eric


[ Parent ]
Stunning (0.00 / 0)
Obama has gone so far to the right on war powers and civil liberties issues that there is no way the Republicans can outflank him. This may (or may not) be good politics, but it is horrible policy.

The AUMF was passed days after 9/11, before we really even knew who or what attacked us, and is very vague and general. The only thing we are SURE that Congress was authorizing in 2001 was an attack on Afghanistan, which is where we thought the people that attacked us were based.

To say that short, vague act of Congress gives the President - 10 years later - the power to assassinate anyone, anywhere in the world who he, without outside review, deems to be a terrorist is insane. That interpretation means the AUMF is more important than the Constitution, because the Constitution clearly limits the president's powers. That is the whole purpose of the document.

If Congress truly intended to give the President that power, they need to be explicit and clear about that. Full debate. There is nothing to indicate that was Congress intent in 2001, and proper legal analysis says this statute is to be narrowly construed - meaning if it is unlear that Congress gave the President a certain power, then they did not.

BTW, do you know the President has refused to release the legal analysis supporting this assasination? Unauthorized leaks describing it in the NYT are all we get.

Are there any doves left in American politics? Or is it just the hawks and the uber-hawks nowadays?  


This mischaracterizes the Obama administration (0.00 / 0)
Obama has disappointed on a number of civil liberties issues and war powers issues. In particular, the Libya campaign clearly violated the War Powers Act. (I'm delighted that we intervened, but after 90 days Obama needed to either get congressional authorization or get out.  He did neither.)

However, there's a night-and-day difference between Obama and Bush. In case you haven't noticed, torture is once again illegal. Obama tried to close Guantanamo, and when Congress blocked him he promulgated rules with real due-process for military tribunals.

As for the AUMF, its clear purpose was to authorize striking back at Al Qaeda and its enablers. Saying that we're allowed to strike an enabler (the Taliban regime in Afghanistan) but not allowed to strike at Al Qaeda itself is absurd!

As for al-Awlaki, he was an American citizen engaged in war against the United States. If captured, he should have stood trial for treason. But this isn't just a case for law enforcement. By his own declarations, he was a combatant, in much the same way that generals in any army are combatants, whether or not they actually fire guns at people. As such, he was a legitimate target, and I'm damn glad that we got him.  


[ Parent ]
Where is the evidence? (0.00 / 0)
Which declaration? Where is the evidence that he was operationally involved in Al Qaeda? If so, when did he become operational? Clearly he was a propagandist and an advocate of terrorism, but that is not illegal. He is dead now and still the administration refuses to release any evidence linking him to any specific plot or even release its legal analysis of why the president has the power to kill him. I would not accept that from Bush and will not from Obama.

Torture was and still is illegal. So who did Obama prosecute for torture? Who did he discipline or demote or fire? Was there any consequence whatsoever for anyone that tortured while representing our flag? No. All Obama did was sign an executive order banning torture, which can be rescinded at any time by Obama or any future president. What courage. What vision.

The reality is that Obama's record in this area is atrocious. He has assumed the powers that Democrats justifiably criticized Bush and Cheney for. But it is OK because he is a Democrat? I can't support that.


[ Parent ]
Great questions by Tapper (0.00 / 0)
http://www.youtube.com/watch?v...

The White House's inability to answer such basic questions is beyond troubling.


[ Parent ]
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