Posts
by Dauphin
Thu Apr 08, 2010
What. The. Fuck. Actually, there are no other words which I can use to express my disappointment with Obama Administration's latest move: As both the New York Times and The Washington Post have confirmed, the Obama Administration has, for the first time in history, allwed the CIA to assassinate an American citizen, Anwar al-Awlaki, a Muslim imam and extremist.
From the New York Times:
WASHINGTON — The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.
But the director of national intelligence, Dennis C. Blair, told a House hearing in February that such a step was possible. "We take direct actions against terrorists in the intelligence community," he said. "If we think that direct action will involve killing an American, we get specific permission to do that." He did not name Mr. Awlaki as a target.
The official added: "The United States works, exactly as the American people expect, to overcome threats to their security, and this individual — through his own actions — has become one. Awlaki knows what he’s done, and he knows he won’t be met with handshakes and flowers. None of this should surprise anyone."
Really. Now, as a general principle, it's not considered illegal under international law to off someone who's an imminent threat to the security of a State. I admit, al-Awlaki is a nasty piece of work. People who write screeds advocating jihad against the United States and recruit for al-Quaeda. But imminence tends to be interpreted rather restrictively under both the US and international law.
In 2006, for example, a group of Canadian Muslims listened to Mr. Awlaki’s sermons on a laptop a few months before they were charged with plotting attacks in Ontario to have included bombings, shootings, storming the Parliament Building and beheading the Canadian prime minister.
"Al-Awlaki condenses the Al Qaeda philosophy into digestible, well-written treatises," Mr. Kohlmann said. "They may not tell people how to build a bomb or shoot a gun. But he tells them who to kill, and why, and stresses the urgency of the mission."
The horror! Clearly this is a man deserving of a bullet in a head! Well, my country has a saner limit to hate speech: Inciting people to violence is sanctionable. If they actually act on it, you can go to chokey for up to fifteen years (the minimum is three), if the Court really decides you've screwed up. But the United States has a little case called Brandenburg v. Ohio:
Conclusion:
The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
http://www.oyez.org/...
And let's just say that Brandenburg, a leader of the Ku Klux Klan, was a very nasty man. In tone, if not in politics, his screeds weren't that dissimilar from al-Awlaki's. So you have the absurd situation of something which doesn't rise to the level of banned speech not being enough to condemn you before a court but being enough to put you on the CIA's shit list. I mean, am I the only one who sees a bit of a problem with this? The Court would find no illegality but the executive branch can, without any judicial oversight, issue a de facto death warrant for someone. And, aside from their pro-Islamic and pro-al-Quaeda bent, Mr. Awlaki's screeds really aren't that different in tone from what the right wing lunatic fringe spouts.
And with regard to this case people usually spout that the man is obviously guilty as sin. Really? As determined by whom? The court of Public Opinion? That convocation of morons? The jury and the magistrates ignorant, the Judge Reporter a careless journalist? Yet, we are supposed to take it on faith that the executive has enough evidence, providence, and safeguards to order a summary execution of an "imminent" threat without any outside oversight at all. Here is a little something called the Fifth Amendment of the United States Constitution:
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.
I think the law couldn't be clearer: If you're a member of the US army or naval forces, of a militia in time of war or public danger, the Grand Jury part doesn't apply. First of all, the question whether we're in a state of war is irrelevant, since al-Awlaki isn't a member of the US armed forces. Secondly, this, if a war it be, is a very strange war. There has been no formal declaration of it, although certain laws of war do apply because of the AUMF that were given, but - and I should stress this - despite that, as even the Bush administration was forced, through clenched teeth, to admit in Hamdi, there is no state of war declared. Only Congress can do that, which is why AUMFs are very specific as to what they allow.
Furthermore, who are we waging war against, pray tell? Al Quaeda isn't a sovereign power. And, pathetically, we want it both ways: We want all the privileges of waging war yet we want to imprison enemies. Sorry, you can't convict enemies in a war and imprison them for waging it; yet I was under the impression that's exactly what most of the world does with terrorists. Clearly it's a criminal matter, not a matter of war. I mean, I don't care, we can call it a war, but that means that when al-Quaeda is destroyed all its captured soldiers have to be released.
Finally, as for those who thunderously proclaim that al-Awlaki isn't a citizen, because "he's a traitor," pray tell, who determined it? Last I looked no law determined you lose your citizenship ex lege if you act like a shit. And even if it did, which institution formally weighed available evidence and revoked his citizenship? Could he defend himself? Al-Awlaki protests innocence, but, with orders being given to put a bullet in his head, it's a bit hard for him to argue his case. It might even be a tiny bit dangerous.
Besides, that pesky thing called the Fifth Amendment applies to all people, not just citizens. So, dear citizens of the United States of America who have a problem with the assassination of one of your own, what the fuck took you so long? Your own cherished preamble to the Constitution, which you do so love to invoke for political goals, states that everyone has been endowed with inalienable rights, be it citizen or foreigner, Jew or Gentile, black or white or scarlet (with the exception of political rights, of course), and that everyone has the right of due process.
Yet, apparently, in cases of OMG TERRORISM the executive could, without supervision, allow executions of foreigners based on Carefully Weighed Evidence. Never mind the fact that no outside institution ever saw it and never mind the fact that the internal procedure has even fewer safeguards than mediaeval inquisitorial procedures had. I mean, the accused could at least petition the inquisitor to perform investigative acts for him before referring his report to the college of magistrates.
And, when that restriction on due process carefully went unnoticed, because, hey, it's just them damn foreigners, right? the next and perfectly logical step of arbitrage of who is worthy to get human rights has started differentiating between worthy and unworthy citizens people get worried. No kidding. This could've been seen a mile coming.
The logic here is the logic of homo sacer, of outlawry: We'll grant everyone human rights... except for people we don't like. Those people can be dealt with with impunity. This is actually a nativist branch of legal reasoning that occasionally resurfaces in the United States, like untreated syphillis. The reasoning is that because this is the US Constitution it should only apply to citizens, not, say, foreigners under the power of the United States. Basically, it aims at a personality principle (let everyone carry their law with them) without bothering to recognise any law that protects foreigners, not the US law nor their home law.
That is the true issue here, arbitrage between personal rights. Political rights are subject to arbitrage, but personal rights aren't. That has never been contentious, not since, well, the French Revolution. And it's a tacit policy the US can afford to maintain because there is no reciprocity.
Consider, for example, the US being on the receiving end. How many people here would cry bloody murder if Berlusconi were to declare the convicted CIA agents an imminent threat and authorised their assassination? And the nativist logic goes further: If other nations were to apply nativist legal reasoning, it would mean that a US tourist in, say, France, could be robbed, raped, killed, chopped into little pieces, and dumped into the river with impunity. After all, it's just a foreigner, right?
Do everyone a favour, please, and point out to everyone you know that acknowledging others' human rights, substantive and procedural, isn't a matter of convenience but of legal and moral obligation. And point out that, if you give non-citizens equality before the law which your law demands chances are the same courtesy will be extended abroad.
To the Obama Administration: You weren't doing a bad job. Healthcare reform I supported. Even the expansion of offshore drilling I could tentatively support, if accompanied with investments into green energy. But extrajudicial executions I cannot support. If you truly feel you have to assassinate someone, at least establish a procedure where you have to get a judicial approval. It would be vile, of course, but less vile than being able to decide "within the family" that someone, citizen or foreigner, is worthy of execution. Now, I'll still tentatively support you, because the other side is worse, but unless you clean your act up this is a bloodstain that just won't wash off. And if you are going to order extrajudicial executions, Mr Obama, no offence, but I hope the dead haunt you in your sleep for the rest of your life, even if the condemned were guilty. That's not how it is done.
Update:
As burrow owl points out below, trial by military commission is perfectly acceptable and in this case the laws of war do apply as determined by Ex Parte Quirin. However, that case still subjects killings to limitations (for example, in case an enemy lays down his arms, and so on), according to the laws of war, which is why I'd argue a carte blanche for assassination is still problematic. Two former attorneys general, as per the Daily Beast, disagree, arguing that it's simply a decision on "how war is to be prosecuted."
http://www.thedailybeast.com/...
http://en.wikipedia.org/...
Update II: The more I think about this the more I see the logic that led the Obama administration. I don't have a problem with invoking Ex Parte Quirin to justify a trial before military commission, and the fact is that there is no overriding need to capture enemies under the laws of war.
However, the problem is shown by the limits of the analogy used. It was established that you can declare war on an organisation like al-Quaeda. But this organisation is not a sovereign state and is not organised like one. The problem in such an organisation is (i) its cellular structure (what if some parts desire an armstice and others don't?), and (ii) stemming from that, how do we judge cases when a suspect's position is similar to the position of a member of criminal organisation, but not necessarily an enemy combatant? For example, are people who launder money for AQ enemy combatants? Because of this, while I see where the administration is coming from, I'd still have to disagree with its approach. You can only take an analogy so far.
In short, I'd argue the structure we're using to fight AQ is seriously lacking in detail and some safeguards should be introduced.
This shit sounds more like something that I would have expected from former Prez George Bush.
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