Wartime Process

Please excuse the interrupted posting schedule — it’s like this, but probably in a good way ;). Basically, wish me luck for some things that have to happen today.

With apologies to Glenn Greenwald, I think it’s time for Democrats (and Americans, writ large) to become comfortable with targeted killing, even of a U.S. citizen. We’ve covered targeted killings here before. The power derives from the sovereign national right of self-defense, and trumps executive orders and international law “forbidding” assassinations — though to be sure, most authorities on the subject forcefully disapprove of the assassination of U.S. citizens. But, a string of Supreme Court decisions takes the legs out of Greenwald’s larger argument, that federal due process is actually violated when a citizen-belligerent is killed abroad. Although the Fifth Amendment does apply overseas, its force depends at least partially on the practicalities of the situation. Reid v. Covert, 354 U.S. 1 (1957); U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990). So under current law, whether it’s right or wrong, nothing Obama’s done is clear, black-and-white illegal, and none of it comes close to the Bush administration’s grave transgression of the effective suspension of the writ of habeas corpus over federal lands, accomplished (but ultimately halted by the Supreme Court) during the Bush years.

What we should do is set aside histrionics and ask ourselves first whether the targeted killing of men like Anwar al-Awlaki is ultimately illegal, as an improper compromise of the mediated foreign Fifth Amendment, and second, whether it should be. These are harder questions, both requiring a debate that can’t be started and ended so quickly.

Greenwald gets his quick answer by assuming al-Awlaki was killed “far from any battlefield.” But one of the things Bush got right — even if he applied it in a fundamentally flawed manner — was that the old definition of a “battlefield” doesn’t work anymore. No matter how we decide to define the term, the absence of a European line-of-battle formation, spent shell casings, or entrenchment is no longer dispositive. The enemy chose a nontraditional battlefield for us, and we cannot deny the battle.

On that basis, I would permit assassination only outside of American borders — we cannot permit the complete disintegration of the pomerium — and of American citizens only in those isolated situations where (1) the citizen’s connections to terrorism, apart from First Amendment activity, are not true subjects of debate, (2) where the citizen presents a clear and present danger to American security at home or abroad, and (3) where neutralization by other means continues to be, after reasonable investigation, impossible. If we want to consider truly routinizing this type of assassination, we might consider a warrant system, where citizens are given reasonable notice and opportunity to present themselves peaceably for trial to American authorities. There is, after all, no debate that al-Awlaki knew he was a target, but remained at large both to avoid justice and continue his fight against America.

But I suspect we don’t want to go down that road. Greenwald’s right about one thing — as a country, we’re far too good at avoiding serious moral debates. But he’s as guilty of that particular sin as the rest of us. Staking out an untenable, extreme position, one with no possibility of ever attracting serious support, hardly qualifies as constructive political participation. We need to be prepared for compromise, even ugly compromise, if we’re ever to deal appropriately with the fundamentally American questions posed by global terrorism.



  1. The U.S. Constitution

    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.

    The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

    Amendment V

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Man, I don’t often say you’ve drunk the Kool-Aid, nor do I do it before Mike does, but this time, you have. And a lot of it apparently. If you read the above sections of the Constitution (my emphasis added) you notice two things. First, Treason (which COULD be the basis for Mr. Aulawlaki’s murder) must be tried in open court; send, there is no geographic proscription to the fifth Amendment. As a citizen, you enjoy its protections. And sorry to say, the development of a secret list somewhere does not constitute due process in this or any other instance.

    So no, we as citizens do not have to accept the murder of our fellow citizens, no matter what their alleged crimes; Doubly so when they are condemned to death without the bright light of law actually being shown on the evidence against them. And those of us sitting on the left side of the aisle don’t now get to give a blind pass to our Dear Leader (especially since it is becoming very apparent that he’s not actually one of us).

    1. not sure hwy my html didn’t take . . . .

    2. I tried to fix your HTML for you, no worries :)

      Anyways, you’re clearly right on treason, and that’s a unique enough thing that I wouldn’t bring it up to support my position. You’re entirely correct that it’s a very hard thing to be convicted of.

      But the law theoretically — on one reading of the cited cases — does recognize geographic limits to the Fifth Amendment; even though (again) you’re right that it’s not in the text, nor does it have to be. There’s the old saying that “the Constitution is not a suicide pact” and, strictly speaking, process requires a judicial system capable of rendering it. I want you to be right — really I do! But I can’t help but thinking that what happened here was the least-bad resolution of a terrible situation. What other option was there?

      1. Capturing him and putting him trial. Ditto for the previously dispatched Mr. Bin Laden BTW. Nothing would take the sails out from under the Islamic Fundamentalist Terrorism approach faster to see the two of them sitting in Rikers for the rest of their lives as common convicted criminals. And if the SEALS could put eyes on one of them to kill him, they could just as easily have cuffed him. They could also have spent time leaking the story that Mr. Aulwalaki (sic) ahs 3 prostitution convictions in the U.S. It would have turned them from martyrs to thugs who are not bound for paradise.

  2. Marius I like your analysis on this. Especially the creative idea for a new kind of warrant.

    A question, though. Was he still a US citizen? It is possible to decitizenify yourself, and even if he didn’t go through the renunciation process some of the ways are automatic by doing certain acts in a foreign country. And if he was no longer a US citizen then this is all academic right?

    1. From all published media reports, he still held a valid U.S. passport, and had never done anything affirmative to denounce, renounce, or otherwise change that status. He did also apparently hold a Yemani passport, but that doesn’t automatically make one no longer a citizen.

    2. Correct. There’s also no way to renounce citizenship (I don’t think) other than affirmatively accepting citizenship in a country that doesn’t permit dual citizenship or, perhaps, accepting a British title of nobility :)

      1. 8 USC 1481(a) lists seven voluntary ways to get rid of citizenship. Two are renunciation. And it appears the US recognizes dual citizenship for immigrants but not emigrants.

        1. And according to a press account I read today, when the State Department was asked about it, they said he hadn’t done anything on that list, so as far as they were concerned he was still a citizen.

  3. ok citizenship question answered. New questions! “Due process of law” being just the process you’re do according to law, assuming all procedures set by law for “identifying locating targeting and killing suspected Al Qaeda member in Yemen” were followed, wasn’t Fifth complied with?

    And how does the Two Eyewitnesses rule work with modern telecommunications of TV and Internet Video?

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