This man deserves nothing less than assassination.
US Born Cleric calls for killing US Civilians
I can understand why someone might feel a population is to be held accountable for it's government - after all, this is what John Locke said and what we believe in (what our founders believed in as well). It justified our bombing of Tokyo. It justified our bombing of Nagasaki.
It is often hard to discriminate between population and war making ability, BUT...
This man isn't calling for making war on the US solely, he is calling for exclusively seeking out the US population because of "intentional" deaths in Iraq and Afghanistan. First of course, most US civilians have NO desire to see innocent civilians die in Iraq (or Afghanistan).
Second, these Yemeni Wahabi ALSO killed indiscriminately in Iraq and Afghanistan. Whatever complaint this 'cleric' has with the US, he has ten-fold with his own people who started killing in Iraq long before we arrived (they hated secular Iraq) and in Afghanistan - and they'll likely be killing long after we leave.
Making "total war" is often brutal and ugly, and it leads to offended, embittered families - who prove ably that an eye-for-an-eye simply leads to endless war and a lot of blind people. But when you hide behind your frock/cloth/prayer shall and call for the killing of children because people do inadvertently what you do overtly, you've parted with the rational world. If the US can find this man, then his own speech clearly puts him in conspiracy with those who have both tried and succeeded in killing US civilians. Perhaps some sort of trial in abstentia would be more thorough, but if it's not practical, the world will not judge us harshly - the innocent will not find us at fault for removing such vileness. He complains about the deaths of those he'd gladly see killed. Apparently he's only mad HE didn't kill them or cause their deaths.
As horrible as this man is, I would far, far rather see him captured and tried in a court of law here than assassinated, Pen. He is an American citizen; we don't summarily execute our citizens; we don't assassinate the citizens of other countries either (in case he is giving up his citizenship in this country to try to avoid justice).
ReplyDeleteOur justification for the bombing of Hiroshima and Nagasaki was that it was the only way to stop the fighting.
Dresden, imho, was about revenge, for the bombings of London. The horror of that firestorm is haunting. Let us not give in to that, let us always be honest with oursevlves about our motives.
What we do or refrain from doing is not about the actions of others, it is about who we have decided tobe, it is about who we are.
I see no difference in how someone should be treated if they are a US Citizen abroad vs. some other person.
ReplyDeleteI believe our Constitutional protections were INTENDED to be thought of as appropriate for anyone, citizen or not.
Bills of Attainder are expressly forbidden, and I support that.
Trials in abstentia are a legal abhorance, and I support that.
However, when someone is actively working to murder US Citizens, if they become "available" - no differntly for US Citizens or not - then that's the risk they take.
If this person COULD be captured, then without doubt a trial contrasting the conduct of his particular form of hate vs. that which he preaches against would be FAR better than making a martyr out of the man - BUT, I suspect capturing him would be virtually impossible.
Look - the best thing to do is to arm and prostelitize to those who are more moderate, convincing them that radicals like this are killing innocent muslims too, that in fact most of the 1M deaths this guy talks about come from inter-religious terror, not the actions of the US, and if those who oppose Wahabis are so inclined, arm them to defend themselves and to take the 'war' TO these extremeists (in Yemen, in Afghanistan) - in short, deligitimize the message.
But, if this guy is in a position one of our operatives could act to remove him, I say he's fair game. I recognize that Posse Comitatus restrictions prevent such actions on shore, but that is because folks like this are able to be caught and tried on shore - he is in Yemen, and it would be VERY hard to catch him (at best).
The distinction abroad has to do with the fact you are proposing to assassinate an American citizen on foreign soil, with all of the complications relating to actions outside our appropriate jurisdiction. We would be very unhappy with another country for violating our proper sovereignty if they started vilently killing people here, instead of going through proper channels to capture and extradite that targeted person.
ReplyDeleteApart from that rather large obstacle, the international communit quite properly objects to assassination generally. We have finally begun to regain the respect of the international community under Obama after losing ground in that regard under the Bush administration, with governments and with civilian populations.
How are you prosing we get close enough to this man to assassinate him? If we do succeed in placing someone that close, is it a hugely greater risk to capture than to kill him? Or, alternatively, if you are suggesting some remote method like drones, how many innocent, or perhaps not so innocent, natives of Yemen are you willing to sacrifice to kill this man? Before you answer to hastily, ask yourself how you would react to a citizen of another country killing a fellow citizen of that country here, and risking harm or even death to one of our citizens, possibly you or me or one of our respective family members.
It is not that I like this guy any more than you do. I want him stopped, and I want him held accountable. But it by what we will and will not do, and why, that our characters and our priciples are measured, not how our adversaries behave.
Yemen seems entirely disinclined to assist in extraditing this man, much as Paraguay was disinclined to assist in extraditing Adolf Eichmann.
ReplyDeleteKilling someone is much easier than capturing them - without any question. Could it be done, perhaps, but how many people are you willing to sacrifice in the attempt?
With regard to a loss of innocent life, his life is not worth more, or their's less, so no, I don't support using a drone or any other potentially indiscriminate method. The idea is to convey the message that such conduct makes you an enemy of the US, citizen or not. We would not (and have not) hesitated to kill Al Qaeda operatives in Afghanistan or Pakistan, why should this man be treated any diffrently. I object to "collateral damage" killings on two accounts, the first being that the life of some terrorist isn't so important that it trumps the lives around it AND because it creates NEW terrorists like the Times Square Bomber.
However, as I said, the far more preferred method to deal with this man, frankly to deal with Al Qaeda, is to point out that everything they complain about the US doing (killing muslims, opprsssing muslims, seeking to impose a version of islam they don't prefer) THEY, Al Qaeda are doing as well. They are responsible for the deaths of tens of thousands (probably hundreds of thousands) of Iraqis and Afghanis, they are oppressing the faith, they are imposing a version many muslim object to.
In short, equip the secular Sunnis and Shias to fight these guys. If they want to take the fight to Yemen, help them - if they want to take the fight to Saudi Arabia for that matter, help them - though I suspect that would take a different form than direct military action. Help them do so in Pakistan as well - by pointing out the rampant hypocrisy of Al Qaeda, letting the populace see that Al Qaeda is just another power-grabbing, corrupt and immoral movement as is ANY movement that advocates killing civilians.
That said, this guy is no less a legitimate target than any member of Al Qaeda, the fact that he is a US Citizen is of no consequence to me because I believe EVERYONE is due the same basic rights, due process, freedom of speech, etc.. but conspiring to kill isn't free speech.
We invaded Afghanistan, we were going after more than one person. We act in Pakistan mostly in cooperation and with the permission of the Pakistani goernment, howver imperfectly our relationship might proceed.
ReplyDeleteAre you suggesting we invade Yemen?
If not, this should remain a theoretical exercise. To do otherwise is an act of war.
You may want to revisit the fallout from the Eichmann incident for the Israelis, if that is what you are proposing.
I'd consider as an alternative putting a bounty on his head, wanted dead or alive.
But then I think the ideal solution to the Somali pirate problem on the nearby horn of Africa is to grant select, well-screened mercenaries (say those very effective ones from South Africa, for example) and to revive the letters of marque and reprisal, giving them legal cover to go after pirates, freeing up our own naval resources and the resources of the other international participants.
With respect, the reasons we invaded Afghanistan are well known, by me, by you, by all. They aren't at issue here.
ReplyDeleteWhat IS at issue is that there is a similarity between attacking an AQ member in Afghanistan and/or Pakistan as in Yemen. What is at issue is whether we give a US citizen more credence in staying our hand than someone else.
Those are the salient issues to me - if you feel otherwise, please elaborate how the nature of our invasion makes Afghanistan different from Yemen. We chose to overthrow the 'lawful' government of that nation for harboring terrorists who attacked the US. Yemen is doing little different. The only difference PERHAPS is that they are impotent vs. overt, but that's up for debate.
That said, clearly I did not advocate for invading Yemen with US forces, I advocating for supporting moderate Muslims who may chose to hold this man and the Yemeni (or Somali or Saudi) government (and/or those within it) who abide/abet AQ members accountable.
The fundamental precept in question is what is required to be a lawful nation. My proposition is that acting to eliminate sworn enemies of a nation trumps due process when the person is beyond the normal reach of the law. This is hardly a new precept, but is open for debate since the Executive Order in the mid-70's (following the assassination of Salvador Allende in Chile) forbad assassination of foreign citizens.
The balance of your objections are other topics. Our nominal support from the Pakistani government, just like the reasons for our invasion, do not give us the moral right to kill collateral civilians. Nor do they make the relationship with respect to 'taking out' a sworn enemy acceptible vs. not - because in all three cases each government has admitted these people are impossibly beyond the reach of their justice systems. While Israel paid a price for the Eichmann abduction, I suspect strongly they'd do it again.
My question for you is this, this man declared himself an enemy of the US, conspired and assisted in the attempts to kill US soldiers and civilians, and is out of the reach of the host nation's government, and outside our reach (almost certainly) to capture him. If the opportunity arrises to kill him, as a soldier of our enemy, what is your choice to do with him?
Second question, if we could incent/motivate more 'rational' elements in Islam to do the same - in short to KILL A US CITIZEN ABROAD - do you support it? If so, why, if not why not?
We invaded Afghanistan to stop people who had conspired, assisted, an advocated killing Americans, for having done so in the 9/11 attacks and for the reasons of anticipating there would be more of the same kind of attacks forthcoming.
ReplyDeleteYou advocate, as I understand it, for the killing of this cleric in the country where he is hiding, which we believe to be Yemen.
You say you do not favor use of drones to do this, but you still favor some kind of assassination. I don't really think it is likely that you - that WE - would be successful in finding, and incentivizing, such a killing. Further, I would be highly skeptical that someone who was muslim, from a muslim country, had succeeded in such a killing, absent verification.
So......who do you anticipate will carry out this assassination, and how?
If we use members of our military or some other agents of our government who have the specific requisite skills, and they are operating in Yemen (or any other country), then those men or women are already at tremendous risk, whether they kill the cleric or capture him.
We put members of our military in harms way, in defense of civilians. But as I know you agree, this is a decision tha we must undertake carefully and with the greatest care and concern for them, not something we do lightly or casually. I don't know that we can't get permission under the right circumstances to send a team of some kind into Yemen; it wouldn't surprise me to find they want him out as much as we want to get our hands on him. He's trouble - trouble for them, trouble beecause of the pressure from us.
I want to see us do what needs to be done the right way - if at all possible. I want to see us make it as safe and LEGAL for our forces to do so, for their safety from the actions of the Yemeni government as much as our image or other considerations.
I think you are mistaken in thinking we can persuade moderates to deal with this cleric. Rather, I think you can expect we would persuade far more people NOT to view the cleric as a martyr if we capture and try him.
We seldom disagree much, 'boss'; and we are not so far apart here. We want to see this man stopped, we want to see him no longer pose a danger to civilians or the military (as was the case with Nidal Hassan for example).
Would capture be harder, riskier, than killing? That depends on who and how you propose the assassination be completed; you have been a bit vague on any details.
I'll answer your questions when you answer mine.
ReplyDeleteI asked you if an opportunity presented itself what would you do?
The mechanics are secondary to the question. If you feel you are ALLOWED to do something, then you begin to plan the mechanics. That it is not possible today, doesn't make it impossible tomorrow. Typically you don't decide whether something is correct to do based on whether it is possible. The theorhetical question has to be answered first - is it proper? Is it appropraite?
With respect to answering your question, however, I have no issue trusting a Muslim to act as an operative in Yemen, I certainly would have little issue trusting an Iraqi Shiite to do so.
You have made comments about wanting to do it legally. My questoin for you is, do you think using drones to kill people in Afghanistan is legal? Is doing so in Pakistan legal?
The fundamental question still remains, if terrorists are operating outside the law and beyond our judicial/law enforcement reach, do we have the right to act against them (with violence clearly) if the opportunity to do so presents itself. Do you think we do or don't you? If your answer is, only if legal, which I didn't advocate doing anything illegal, you appear to have inferred that - but rather, is it proper? I frankly believe international law supports that we can act if the host country is incapable - I could check - but even if it doesn't - US law is generally silent. The question is, is it proper? Deflecting the question into "but who would you use" or "only if legal" fails to address the underlying moral question.
I contend there is effectively zero difference in attacking this person from attacking some other AQ operative in Pakistan or Afghanistan - I contend this on moral, not legal grounds. On legal grounds, we do not have the right to cause collateral deaths, but we do, don't we? Conceivably we could even be tried (as war criminals) for causing such deaths - so the question isn't that it's legal in Pakistan and not in Yemen. What we do in Pakistan may have their approval, but collateral deaths are not legal - and beyond that are immoral. Attacking in Yemen MIGHT be legal - but is it moral? That's the question.
My dear Pen, esteemed colleague, it was never my intention to avoid answering your questions.
ReplyDeleteLet me attempt to do so here.
As a result of your post, I did a little bit more reading on the subject, inclduing the article from today's Minneapolis Star Tribune.
Two comments struck my attention.
One, that this country maintains lists of people for assassination. I do not believe assassination to be EITHER legal or proper tools for our government, as a response to this kind of threat.
Two, that the cleric here is believed to be associated with Al Queada but his exact role is not understood. He himself is claiming Nidal Hassan and the 'Eunuch'bomber as his 'students'.
Please by all means check to see if it is internationally regarded as legal to pursue someone if the host country cannot or will not. My understanding is pretty clear that it is not, but I am open to additional information.
If I am correct that it is not legal, according to our law and to international law, then I would respectfully suggest that adds another layer of complications and contra-indications against such an action.
But to address the question at the heart of the discussion, is it ever right to kill someone without due legal process? No.
Collateral damage is not 'all right' either, but it is something we try very hard to avoid - and should try even harder to avoid. That puts it in a very different category of action from intentional acts to prevent people from harming others.
Btw - according to my reading today, the cleric's tribe is protecting him, and insists he is not participating with any other Al Quaeda personnel. My impression in both Afghanistan and Pakistan is that we are going after not only leaders but groups of AQ forces.
ReplyDeleteYou and I disagree.
ReplyDeleteI believe that in war, it is legal to kill without due process.
This man undoubtedly considers himself "at war" with the US, we undoubtedly consider him at least a violent felon evading capture by all means necessary and in a place beyond our reach.
The question is whether it is ethical to kill someone who is a sworn enemy, appears to have engaged in planning deaths in the US. As a matter of prevention (at worst), any chance to remove him (or anyone else) due process or no, should be taken IF due process is effectively impossible. Killing/removing/denying the enemy the ability to continue the fight, is neither legally unheard of nor fully decided. I will look as well into what can be found in international law, but I suspect strongly that while apprehension is strongly prefered, when no other option is present, elimination is tolerated.
Tricky stuff. The government knows more about this guy than we do. There are some situations that may justify, if not require, an extrajudicial solution. GITMO is an example. President Obama learned that it is much easier to campaign on closing this facility than it is to do so. So, we are holding these guys without trial, although modest habeas corpus rights were afforded to them. Like DG, I am reluctant to endorse government sanctioned killing an American citizen for what appears to be incendiary speech. There may be some legal fuzziness as to when an individual is classified as an enemy combatant or terrorist, and not just a free speaking American. These are not academic first ammendment debates in a law school seminar; real lives are at stake. I wonder if DG's view would be different if this guy were not a U.S. citizen.
ReplyDeleteMichael, I don't approve of assassinating anyone, ours, others.
ReplyDeleteA long time ago it seemed to me to that what differentiates us from other countries, countries that are oppressive of their citizens is that we don't have to be afraid of our lawful authority doing things like disappearing people or killing us.
We haven't been doing so well on not disappearing people. We shouldn't be assassinating our own. We should be finding other ways, ways which make use of our courts before any sentence is carried out.
I think Michael, in his comment, hit on what troubles me when he wrote "the government knows more about this guy than we do."
ReplyDeleteObviously, the government has access to information we do not. But this is the same government that told us the WMDs in Iraq were "a slam dunk", that sent General Colin Powell to the UN with misinformation.
When we try someone, we don't always get it right, but at least we have a process in which claims and information are challeged in the adversarial system of our courts.
Trust but verify are wise words to live by with respect to other governments and treaties; they are also good words to live by with our own government. We verify the truth of accusations made by our government and the incriminating evidence that proves those claims is accurate and correct in our courts. I am not willing to approve or condone our government executing anyone, but least of all one of our own citizens over whom they have legitimate authority, without that best possible attempt at fairness and objectivity.
I am not willing to trust our government's decision in what Michael refers to as 'extrajudicial' solutions. Killing someone for a crime should not be done in or from the shadows. It is a sufficiently serious event that requires the brightest light of day in front of the largest possible number of people questioning it.
DG's comment: "We should be finding other ways, ways which make use of our courts before any sentence is carried out. " Let's use GITMO as an example. We are holding guys without charge. candidate Obama criticized Bush for this, but as President, he has continued GITMO and even extended many of Bush's security policies. It is easy to champion for due process, civilian trials, etc. for GITMO detainees, and others. Why hasn't our president, a former professor of constitutional law, done so? Because he is briefed by folks who tell him exactly what Bush was told. That many of these 'guests' are hard core evil killers, who will kill innocent people if they are released. Obama and Bush also understand that we don't have the evidence to convict in civilian courts, assuming that this would be the proper jurisdiction. What do you do, dear DG, with evil killers who may not be 'convictable'? Obama has concluded that detention without charge is the correct course of action.
ReplyDeleteObama's attempts at closing Gitmo have been thwarted. I'm not persuaded as you are that this is the same thing as Obama not wanting to close Gitmo, but rather reflects priorities. He cannot do everything simultaneously, there are only 24 hours in his days, just like ours. Bigger things have demanded attention first.
ReplyDeleteNor am I persuaded that Obama believes we are unable to convict these individuals, as it was Obama's preference for example to try KSM in a civilian trial. We have successfully tried, and mostly convicted, some 300 terrorists over the last decade or so in civilian courts.
This country has faced dangers and challenges before. I have never found where history supported the widsom of abandoning our principles and core beliefs. Invariably those decisions chosing expediency turned out to be mistakes.
But if some of the remaining 200 or so prisoners ARE, as you describe, unconvictable and unreleasable, then I would suggest we repatriate them to incarceration in their home nations wherever possible.
I am not persuaded that our government can KNOW someone is so dangerous, but not be able to demonstrate that danger sufficient to persuade our country to approve incarceration. In any case, as bad as incarceration is, it is not the same thing ethically, morally, or legally, as a death sentence.
A further thought, Michael. Given that an overwhelming number of detainees incarcerated at Gitmo, have already been released which demonstrates how very very many of our Gitmo 'guests' were NOT in fact ever dangerous. Compared to those who have been released who subsequently became our enemies if they were not so before, as a result of their incarceration. What persuades you, Michael that the individuals remaining ARE so very dangerous, and not simply unfortunately at the end of that long line of relatively harmless sould who should never have been detained in the first place?
ReplyDeleteIf I may respectfully point out - your last statement appears to be rife with assumptions about the situation, rather than facts.
We were told once upon a time (a phrase I use to underline the fairy tale nature of the statements) that ALL of the prisoners at Gitmo were dangerous, every last one of them.
ReplyDeleteWhich turned out not to be true.
Thank you DG, for your thoughtful response. I have a brief minute until I need to invade someone's GI tract. I never believed that all GITMO detainees were wanton, evil killers. Nor do I believe that every prisoner we incarcerate in the USA is guilty. We do not have a perfect system. Nevertheless, I do believe that there is a core group there who merits the label of 'unreleasable'. I disagree with you, with equal respect, that failure to close and release is a statement of the presdent's priorities. It's reality, not priority. We can only imagine how persausive the security evidence is to detain these guys, since Obama is breaking an important campaign promise by doing so. Finally, with respect to repatriation, as you know, we can't find countries willing to accept them.
ReplyDeleteI did a quick google search (not what I would consider real.ly research, but a quick update of my information on the status of Gitmo.
ReplyDeleteTo date, Obama is maintaining that he is going to close it, and every article I briefly scanned indicated this was still his stated intention, and that he was bucking political opposition - not that he had a change of heart.
He has not rescinded the executive order he signed.
So while you may be correct, that this claim to still intend to close Gitmo is just 'happy talk', I don't see anything that definitively indicates Obama has been briefed differently now from how he was briefed during the transition, or more persuasively. I can't even find clear indications that the intelligence community supports continuing Gitmo. What I've seen indicates the intelligence community wants it closed - which raises the question who is it that is being so persuasive? If you have links that show these people - not just political opposition, but professional people who are his actual chosen advisors - then I am certainly open to that information.
But if you don't have that important documentation, then at best we are both just speculating as to Obama's private intent, and we are left with his public statements about what he wants to do with Gitmo.
I'd also point out that there were a whole group of Uighars who were placed this past year in Bermuda. I understand that negotiations are still in play with some of the European countries as well to take detainees.
But even if for a moment we were to posit that there are people who are too dangerous to release - there may be a few, but certainly not all the remaining (there are some who have been cleared for release who have yet to leave Gitmo, for example) then we still need to incarcerate them indefinitely under some legal provision. If we don't have such a provision, then we need to devise some kind of legislation that is properly passed by Congress and signed by the President, and if necessary, which survives a SCOTUS challenge to detain them - or we need to let them go and deal with the consequences.
Gitmo "limbo" detention is not acceptable and never should be acceptable to anyone who claims to value freedom, and justice, for all.
@dg, alas I am 'linkess' to defend my speculations because of lack of time, not interest. I agree that everyone would like to close GITMO, more for political reasons than anything else. The reason it stll lives is because we have no place or country to transfer the detainees to. I don't think that Bermuda or Palau will welcome them. Regarding your comment: "Congress and signed by the President, and if necessary, which survives a SCOTUS challenge to detain them - or we need to let them go and deal with the consequences", I do not think we should entertain the latter part of your comment. My understanding is that the executive branch has power to detain without charge or trial under specific circumstances. You're the barrister. Am I correct?
ReplyDeleteAlas, not I, Michael. I tend to defer to our colleague ToE, who is employed in the legal field, as is our newest soon to be contributing author, who works in immigration law.
ReplyDeleteI am a humble but persistent researcher, and author. I like to dig into sources. Appreciating your lack of time, I promise dilligently to keep my eyes open as well for any sources which substantiate your point of view, and to share them here.
In the meantime, while I look for such information, I shall gently tug on my colleague ToE's sleeve, and sweetly enlist his help, as his time permits, to provide what information he has to hand about executive authority to EITHER order assassinations, OR detain dangerous individuals indefinitely.
I share your curiosity.
If I might offer an encouraging thought, Michael - I wish you successful 'spelunking' in your next appointment that takes you away from the entertainment provided by our blog, and I sincerely hope that we DO entertain and enliven, and do NOT remind you of.....certain aspects of your work, so to speak.
ReplyDeleteThe diagnostic burrowing I do is one of life's most rewarding, if not 'enlightening' pastimes.
ReplyDeleteI have every confidence the world is a better, healthier place for your efforts,
ReplyDeleteWell, mes amis, in my search of sources referencing the source of authority for a sitting president to order assassinations, I found this on the subject, (link follows quote):
ReplyDelete"Before the Geneva Conventions were first enacted, Abraham Lincoln -- in the middle of the Civil War -- directed Francis Lieber to articulate rules of conduct for war, and those were then incorporated into General Order 100, signed by Lincoln in April, 1863. Here is part of what it provided, in Section IX, entitled "Assassinations":
The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism."
and
"A 1981 Executive Order signed by Ronald Reagan provides: "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination."
http://www.salon.com/news/opinion/glenn_greenwald/2010/01/27/yemen
More, anon.
from the same cited article by Glenn Greenwald, this past January:
ReplyDeleteUpdate II)
"The Washington Post's Dana Priest today reports that "U.S. military teams and intelligence agencies are deeply involved in secret joint operations with Yemeni troops who in the past six weeks have killed scores of people." That's no surprise, of course, as Yemen is now another predominantly Muslim country (along with Somalia and Pakistan) in which our military is secretly involved to some unknown degree in combat operations without any declaration of war, without any public debate, and arguably (though not clearly) without any Congressional authorization. The exact role played by the U.S. in the late-December missile attacks in Yemen, which killed numerous civilians, is still unknown."
It also details claims by Al Alwaki's family that he is not working with Al Quaeda, and that his father had asked for time to persuade his son to surrender to U.S. authorities, but that he was denied that time.
If I may be allowed one more excerpt from that article - which is rich in docmenting links - it is this which shows us to be hypocrites by our words and actions:
ReplyDelete"UPDATE: In comments, sysprog documents the numerous countries condemned in 2009 by the U.S. State Department for "extra-judicial killings." I trust that it goes without saying that it's different (and better) when we do it than when They do it, because we're different (and better), but it still seems worth noting."
I object to that hypocrisy.
from "Opinio Juris"(link follows):
ReplyDelete"The [NY Times] article notes the international law justification for his killing: he is an avowed member of Al Qaeda actively engaged in hostilities against the U.S. Under either the law of armed conflict or the general law of self-defense, the Administration probably has the legal authority to kill him. (Unless international human rights law applies, but the administration plainly believes this law does not apply).
(my emphisis added)
http://opiniojuris.org/2010/04/07/the-constitutionality-of-president-obamas-targeted-killing-of-us-citizens/
While I will defer to ToE, if he has the time, on the Constitutional or other legal aspects, and from his navy experience, or perhaps Penigma, from his army background, to comment on those premisdes for the authority.
ReplyDeleteIn Boumediene v. Bush 553 US 723 (2008) the US Supreme Court held that Guantanamo Bay detainees were entitled to FULL constitutional rights. It specifically over-ruled those portions of the Military Commissions Act which purported to suspend the Writ of Habeas Corpus and to deny prisoners held at Guantanamo Bay any constitutional rights. The Court held that Congress cannot suspend the Writ of Habeas Corpus in this instance without following the proper procedure as defined by the suspension clause, (which would not be applicable in this case at any rate, (author's note)) and that there is no adequate substitute available under the Military Commissions Act.
ReplyDeleteI haven't commented much on this entire thread, because when I first read it, I was convinced that it must be a joke. I am horrified that my esteemed colleague, one that I greatly respect, Penigma, would ignore centuries of ethical realities, and furthermore ignore existing US Law which provides that under the 5th and 14th amendments, no person may be deprived of life, liberty or property without due process of law. Due process means a criminal or civil charge, a trial where the person has an opportunity to defend themselves, and where there is a presumption of innocence.
This is action that I expect wanna-be dictators such as George Bush or Dick Cheney to do. If President Obama is continuing this tradition, my respect for him has decreased dramatically. Extrajudicial execution of human beings (citizens or not)may also constitute a war crime under the 4th protocol of the Geneva Conventions.
Ethically, the answer is worse. If we are going to stoop to this level and to assassinate those who are a "potential threat", who makes that decision? Our intelligence in such matters is notoriously bad. Its also a very slippery slope until next we authorize an assassination on US Soil, and then decide to assassinate someone because we don't like what they say, (its "a threat"), but in fact, it just makes the administration look bad.
This is something that the US should not do, and we should publicly and unequivocally denounce such activities.
Michael,
ReplyDeleteI've been travelling (as I'm wont to do) for business and so missed the most recent comments.
First, Gitmo is an anathema to me, it is a direct violation of international treaties the US signed, was an abortion when created, createed a place to send prisoners who had done nothing wrong, and should be shuttered immediately. Send the prisoners to any penitentiary in the US you care to, but first, prove you should hold them. There is doubtless a problem or five in that some of the "evidence" to hold them was gained through coercion - my attitude is.. that's a shame, but it doesn't mean you keep doing it. Also, to be clear, Obama intends to keep about 20 prisoners - Bush was keeping 200 (plus) - that means Obama is closing out 90% of the use of Gitmo.
Like Michael pointed out the government knows a lot about this guy that we may not. They do have Nidal Hassan in custody and probably know a lot by now about how he was recruited. They also have the diaper bomber and the times square bomber and both were singing like canaries. When someone declares themself to be at war with the US and they are in a foreign country recruiting people to do harm to US citizens what is the president supposed to do? Like Pen pointed out the chances of capture and extradition are about zero so do you continue to watch him try to harm us and do nothing? Every president takes an oath of office and one of the most important and difficult jobs of that office is commander in chief. If there are attacks on US soil it ultimately comes back to the president. All the law enforcement, intelligence, and military agencies that are supposed to prevent such things report to him. If he can find no other way to stop the guy other than having someone shoot him, oh well, he is doing his job. The guy has the option of turning himself in, I don't think they would shoot him after he surrendered to interpol or the fbi.
ReplyDeleteAnd DG, the same Lincoln who said you cannot assassinate someone turned Sherman loose to rape, pillage, burn, and murder civilians in his march to the sea so I think his moral compass is not to be trusted much.
Tuck, I don't give old honest Abe a free pass; he was human. Being human, even he was flawed. He was a great man, not some kind of demi-god.
ReplyDeleteSo when Lincoln suspended habeus corpus, or consented to Sherman's conduct, I do not automatically applaud just because he's Lincoln. We can and should be critical even of the best of our statesmen (and women).
And it certainly doesn't mean that because of that, we condone or approve bad conduct NOW.
Time will tell which decision is the right one. I just hope that Obama is not sacrificing this man's life just to "look tough on terrorism" to his political opposition.
I cannot bring myself to trust our government will do what is right without oversight. LOTS of oversight.
I must disagree with esteemed Penigma and note that my views resonate with TTucker. While I can't prove it, I suspect that GITMO would have about the same number of detainees now had Bush still been POTUS. We're down to the hard core there. Can't agree with you re transferring to U.S. where these guys would then enjoy constitutional protections, and perhaps civilian trials. Sounds good, but I think that the risks, the stakes and the circumstances don't support this. Lincoln, as pointed out, suspended habeus corpus, interfered with U.S. mail, and I believe favored military trials over civilian proceedings. There needs to be enough elasticity within the system to prevent disaster. If the result of extending full rights and protections to terrorists is that we lose a city, then we need to use all means necessary to prevent this.
ReplyDeleteMichael, I agree with you there. We absolutely need to protect ourselves against threats.
ReplyDeleteWhere I think we might diverge a bit is that I find it hard to believe that we can be so very sure that these 20 or so of the less than 200 ARE terribly dangerous but that while we know it, we cannot prove the danger as a basis for their continuing incarceration.
The essence of the argument is that if we KNOW, not suspect, but have conclusive, compelling proof of the danger - Gitmo detainees, or the Rogue Cleric in Yemen, then it should be possible to share the proof, to persuade others who have oversight or the judiciary that the danger exists.
But if it is NOT that clear, then I'm not willing to agree that this is a good alternative - assassination, OR indefinite imprisonment.
Yes, Lincoln tried to suspend Habeus, and tried to use military tribunals for civilians as well; both of those actions were overturned by the courts, the actions were found to be illegal. (I'm a bit of a civil war buff too, btw.)
I am not arguing for us to be idealistic to the point of being dangerously stupid, and I don't believe Pen or ToE are either. There has to be a safer, saner middle ground that doesn't go too far either extreme.
@dg, your comment: "then it should be possible to share the proof, to persuade others who have oversight or the judiciary that the danger exists."
ReplyDeleteWhat makes you think that this is not already happening.
I'm a civil war enthusiast (see one of my favorite books under my profile!), but not an actual buff. I developed a relationship and correspondence with Richard Mudd, M.D., grandson of Samuel Mudd, M.D!
While Lincoln's actions may have been overturned, were they wrong for him to implement? President Clinton once opined, that if he were faced with a dilemman similar to those were are discussing, he would protect the country and worry about the legal judgements later. This Lincolnian approach seems reasonable.
Hmmm. You ask two good questions, which I had to think about a bit before answering.
ReplyDeleteMy qualms about the assassination question is that it appears from the 'push back' against this that the cleric is a less clear threat than would justify this extreme, so very final action. I'm also not at all reassured that this really is perfectly legal (just one aspect of the push-back).
As to Lincoln's actions, not everything that seems like a good thing to do for even the best intentions turns out to be all that good an idea. The overturning by the courts, and the accompanying opinions is in some ways unfair - a second guessing without the stresses inherent in the original decision. But that second guessing when it is possible to be as objective and cool-headed as possible, without that 'fog of war' affecting decisions.
We should learn the lessons of these decisions, and they should guide our subsequent actions. So for that reason, Lincoln was found to have acted wrongly - however well intentioned - and we should not repeat his mistake. If we do, it was a worthless exercise.
Michael,
ReplyDeleteLinconln's suspension of habeaus corpus was done during open insurrection and justified by the fact that 1/3rd of the nation was in rebellion - he was in danger of having the US Capital surrounded by a hostile state (Maryland). Given that his justification rested on the scale of the risk (1/3rd the populace) and that he quoted that figure as justification - I think the points aren't sufficiently similar.
The Constitution "isn't a suicide pact" as was stated in a SCOTUS ruling in 1963 with respect to draft evasion and stripping citizenship (Kennedy vs Mendoza- Martinez). On that we all agree.
In this case, I don't agree that Bush would have released the other 180 or so folks, there isn't evidence to support this claim. He slow-footed releasing hundreds of prisoners, and showed no inclination to cause the military tribunals to move ahead swiftly.
By contrast, Obama ordered an immediate review of all cases when he took office and based on that concluded he would not move ahead with all but "no more than 20 or so additional cases" resulting in the position that the other 180(ish) should be released.
That said, I see no additional risk to the US of housing those remaining "hard core" prisoners on our soil. GITMO was something done to skirt the law, not to avoid constitutional protections lawfully. SCOTUS ruled clearly that GITMO did not put the prisoners beyond the reach of legal due process and in many respects beyond the reach of US Courts - they required (SCOTUS) that Bush (now Obama) adhere to treaty obligations which he had failed to adhere to - claiming he didn't have to, but not really every justifying why not. They also required him to provide a legal course to proving innocence (or rather establishing justification for holding the prisoner) EITHER through military tribunal IF the tribunal could be shown to be fair OR through US courts.
Consequently, there isn't substantiation that GITMO places prisoners entirely or even primarily outside US law/courts. Simple capture puts the prisoners, wherever they may be, in the path/pipeline for military tribunal review, Gitmo neither confers that status nor enhances it. What Bush attempted to do in delcaring illegal combatant status was effectively struck down, as it should have been. It was a term which didn't exist prior to 2001, was a violation of international law, was a violation of our own treaty obligations, and frankly, was an immoral breach of the requirement to treat someone either as a POW or as a criminal as dicated in Geneva Convention III.
With respect to losing a city if someone is released. First, that risk exists today, and is no more enhanced materially should one of the 'hard core' folks be released than it would be if some OTHER captive in an Afghani prisoner escaped. Meaning, it matters, but there are thousands of committed Wahabis in the world, these 20 aren't exactly irreplaceable.
Moreover, hosting them on US soil is probably LESS likely to lead to escape than hosting them at Gitmo. Gitmo is 1/4 of a mile from Cuba. Should a prisoner escape, they would only have to make that run, climb a fence and they are G-O-N-E gone. Would it be easy, hell no, but escaping from a super-max facility is FAR harder - it hasn't yet happened that I know of. So those kinds of fears, like that the prisoner, who doesn't speak English, would somehow, in the middle of Kansas or Louisiana or Colorado, join up with other Wahabis, and by the nature of his escape be able to obtain weapons grade materials AND deliver them - I find highly improbable, as I think you may well if you consider it from that perspective.
Is it possible some escapee is so meaningfully dangerous that they could somehow aid OBL in attacking a US city, it's possible, but it's highly HIGHLY improbable. What they may know, or know of, is now 7 years old. It is likely OBL has lots of other people with similar knowledge, and his key problems at this point are money, liberty to move, and access. One terrorist more or less is not of significant help to him except if one is SOO brilliant as to be able to convey an idea they otherwise would never have thought of in seven years, and I personally find that highly dubious.
ReplyDeleteThat said, I have no issue using military tribunals, I also have no issue holding these guys until AQ sues for peace (holding them as POWs) - I DO have an issue with terrorism causing us to allow the executive branch to usurp rights in the name of making war on a tactic of warfare. We aren't at war, except notionally. Extreme measures need to be used only in extreme times. 9/11 was obviously horrid, but we've not required our nation to act accordingly in response. We invaded a non-beligerent out of choice, and instituted a corrupt failure in the country we needed to control. Let's deal with the hard and meaningful stuff and let the law deal with that which it is(and was) more than adequate to deal with. We don't need to enact extra-legal prisons in ways we'd never agree was ethical if done by another nation.
Good thoughts all the way around. Regarding Bush and GITMO closing, we just don't know. I don't sense much policy distinction on this issue - and nat'l security in general - between him and Obama. My argument is strengthened by Obama's jettisoning his promise to close the facility in 1 yr. I don't fault him for this. When he heard as president a full airing of the facts, he changed his mind to approach his predecessor's policy. I think that Bush & Co. would have liked to have closed it down for political reasons, but he collided against the same reailities that Obama now faces.
ReplyDeleteI recall that after Lincoln was assassinated, a military trial was held for the 9 conspirators. This was challenged as the nation was no longer at war and the civilian courts were functioning. I think these guys and gal should have had civilian trials.
Finally, with respect to the comment: "With respect to losing a city if someone is released. First, that risk exists today, and is no more enhanced materially should one of the 'hard core' folks be released than it would be if some OTHER captive in an Afghani prisoner escaped." Can't agree with this reasoning. We incarcerate thieves and murders even though the streets are full of other criminals. Justice demands that a guilty individual be punished, even if this won't effect crime statistics or prevent other criminals from lawbreaking.
With sincere respect for your position Michael, I'm not finding support for the failure to close Guantanamo as an indication Obama was persuaded by or responding to the same reasons that Bush used the facility. Nothing about the status of Gitmo seems to be fact driven, frankly.
ReplyDeletePretty much everything I can find is indicating this is still a strong goal for this administration, and has only been prevented by the tug o' war of politics, primarily although not exclusively, stopped by conservatives and Republicans.
I've set myself a goal of using two search engines, 100 separate (not copies) of sources as a fair sampling.
Lincoln wanted to use military tribunals far more broadly on civilians. His VP, Johnson, was following in his footsteps to a large degree - he wasn't much of an individual thinker, so far as I can read in history, unlike Lincoln.
"wasn't much of an individual thinker,"
ReplyDeleteYes, not a thinker, but quite the drinder!
Johnson and ol' Ulysses S. Grant could both put away the booze, LOL!
ReplyDeleteMichael,
ReplyDeleteI was apparently unclear - I was not advocating releaseing these folks, I was reacting to your expressed concern that putting them somewhere other than Gitmo was specifically more risky. I don't believe that at all (that it's more risky), and equally I don't agree with releasing them.
I support using military tribunals to try them. If sufficient evidence can be presented to hold them, especially their own words with respect to what they now consider themselves (not coerced commentary, though) - then they can and should be held indefinetely (for as long as the 'war' exits if you define them as POW's).
Clarification duely noted. Regarding, "- then they can and should be held indefinetely (for as long as the 'war' exits if you define them as POW's). ", this could be indefinite, true?
ReplyDeleteThat is a bit of a touchy question, the 'indefinite'.
ReplyDeleteWe are supposed to be effectively out of Iraq beginning in August?
And the pressure is increasing for us to exit Afghanistan. If you use the definition of being at war with those two countries which we have actually occupied....that definition might be a matter of a few years.
If we absolutely need to hold them, no other solutions are possible, then we better come up with a more legitimate reason to hold them, and means to justify a longer duration of incarceration.
I would respectfully suggest that it would go some way towards improving things if the detainees, prisoners, whatever we are calling them were not held incommunicado from their families --- even Iran allowed the mothers of three detained Americans to visit them this past week.
Obama ran into the same problem Bush did. There were somewhere around 200 prisoners there that Bush intended to release and no one would take them. Those Ughars we sent to an island, we paid the island $200 million to take them (or forgave that much debt I really can't remember).
ReplyDeleteBut on the subject of the assassination order. Think of it this way. If someone is trying to kill you then you have the right to use necessary force to stop him. Since he has put himself beyond the reach of our law enforcement the only available way of stopping him is killing him. And if he really is the one that recruited Hassan, the diaper bomber, and the times square bomber, then who cares if he has ties to Al Queda or is just doing his own jihad in his own way, he is still trying to kill US citizens.
True, but under a couple specific stipulations; First, that we have sufficient evidence they are combatants, even if we consider them akin to the Lincoln Brigade (in Spain) - as foreign fighters resisting our forces. Second, that if they are Afghani, or maybe even simply captured in Afghanistan, that eventually they will be repatriated now given that we have overthrown the government of Afghanistan and hand them over to that government for final disposition. You see, that's what you do with POWs once the 'war' is over. You don't hold them without hope, communication with family, or in intolerable circumstances (such as sleep deprivation, torture or otherwise).
ReplyDeleteMichael, I told you that I would look for sources that might validate your statement :
ReplyDelete"Let's use GITMO as an example. We are holding guys without charge. candidate Obama criticized Bush for this, but as President, he has continued GITMO and even extended many of Bush's security policies. It is easy to champion for due process, civilian trials, etc. for GITMO detainees, and others. Why hasn't our president, a former professor of constitutional law, done so? Because he is briefed by folks who tell him exactly what Bush was told. That many of these 'guests' are hard core evil killers, who will kill innocent people if they are released. Obama and Bush also understand that we don't have the evidence to convict in civilian courts, assuming that this would be the proper jurisdiction."
Instead of second hand assertions about what was persuading our president, I found this article in today's NYTimes, which I selected because it contains the actual report to the president (in a link) as well as the recommendations an decision of the president about Gitmo and those detainees. I respectfully would suggest that it does not reflect Obama continuing in any way the policies of George W. Bush, as you opined -- but the advice and decision are here for each reader to see and evaluate.
http://www.nytimes.com/2010/05/29/us/politics/29gitmo.html?ref=world
Thanks for the NYT link. Of course, I would have read it, had I been home in Cleveland, but here I am hours away from kid's graduation.
ReplyDeleteI think we simply view this differently. I don't see much difference between current and prior president with respect to GITMO. This is not simply 'second hand', but an observation that he could not close the facility as he promised. While he may have intended to adopt a different policy, the facts on the ground forced him to view the issue much more as Bush & Co. did.
From the Times article:
"The report also cited two primary reasons why the 48 detainees could not be prosecuted. First, it said, the vast majority were captured in combat zones when the focus was warfare, not court cases. While the intelligence against them was deemed credible, it said, evidence was not collected or preserved about them in a form that would be deemed admissible in court or that could prove their guilt beyond a reasonable doubt. "
This reminded me of some points in our own discusssion.
A link for scholars of Penigmatology! http://nyti.ms/dx3sZo
ReplyDeleteThanks Michael!
ReplyDeleteI thought this was an interesting excerpt:
"In a 29-page report to the United Nations Human Rights Council, the official, Philip Alston, the United Nations special representative on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq. "
There are so many extra-judicial executions, the UN needs a specialist?
Our own government just came out with a scathing condemnation for carelessness and unprofessional restraint re: the recent drone attack which killed some 20+ people. This criticism of our drone activity is both internal and external, domestic and international.
Drone attacks under Obama have increased because he and his team, like Bush, believe in the strategy and its legality.
ReplyDelete