RUTHFULLY YOURS

PLEASE READ THIS IN SEQUENCE….WHAT WILL THE OBAMATHONS SAY ABOUT THIS? WATERBOARDING IS BAD BUT JUST OFFING THEM IS GOOD?….RSK

FIRST:Obama OK’s Targeted Assassination of Awlaki, a U.S. Citizen   [Andy McCarthy]

NRO — The CornerWednesday, April 07, 2010

Reuters has the short story (via the Washington Post) here.

This is obviously the right call. We are at war against al Qaeda under an authorization from Congress. Anwar al-Awlaki, a purportedly American-born Islamic cleric, who is now operating in Yemen, ministered to the 9/11 hijackers, inspired the Ft. Hood assassin, probably directed the would-be Christmas bomber, and is believed to be orchestrating and recruiting for violent jihad operations against the United States. The president is the commander-in-chief with primacy on questions regarding the conduct of war. Even if we were to accept for argument’s sake that at issue is a legal rather than a political judgment, Supreme Court precedent (the World War II era Quirin case and the 2004 Hamdi decision) hold that American citizens who fight for the enemy in wartime may be treated as enemy combatants, just like aliens.

The only reason for calling attention to Obama’s targeting of Awlaki is its demonstration of the illogic of the Left’s position on treatment of the enemy. According to the report, a U.S. official told Reuters that “Awlaki is a proven threat,” and therefore someone who could properly be targeted for killing. But by leftist standards — including those urged by Attorney General Holder when he was in private practice filing briefs in support of American-born “dirty bomber” Jose Padilla — Awlaki is most certainly not a proven threat. He has not been convicted in a court of law.

So here is the Obama Left’s position. If an alien enemy combatant, such as Khalid Sheikh Mohammed, mass-murders 3000 Americans and is then captured outside the U.S. in wartime, we need to bring him to the United States and give him a civilian trial with all attendant due process rights. If an alien enemy combatant is sending emails from outside the U.S. to an al Qaeda cell inside the U.S., the commander-in-chief needs a judge’s permission (on a showing of probable cause) to intercept those communications. If an American citizen terrorist outside the United States — say, Awlaki in Yemen — is calling or emailing the United States (or anyplace else), the commander-in-chief needs a judge’s permission to intercept those communications. If we capture an alien enemy combatant conducting war operations against the U.S. overseas, we should give him Miranda warnings, a judicial right to challenge his detention as a war prisoner, and (quite likely) a civilian trial. But, if the commander-in-chief decides to short-circuit the whole menu of civil rights by killing an American citizen, that’s fine — no due process, no interference by a judge, no Miranda, no nothing. He is a proven threat because … the president says so.

That’s OK with me — I think the flaws in the equation are the various lawfare devices by which we now tie the commander-in-chief’s hands with legal processes. War is not supposed to be litigation. It’s not about rights for the enemy but rather victory for the American people. But why do I think the Left will suddenly be OK with (or, at least, muted in its criticism of) targeted assassination because the president’s name is now Obama rather than Bush?

SECOND: A RESPONSEAssassinating Awlaki   [Kevin D. Williamson]

I hate to play the squish, but am I the only one who is just a little bit queasy over the fact that the president of the United States is authorizing the assassination of American citizens? Andy writes that this is “obviously the right call.” I might be persuaded that this is, in fact, the right call. But obviously? No hesitation there? It seems to me that the fact of U.S. citizenship ought to be a bright line on the political map.

Surely there has to be some operational constraint on the executive when it comes to the killing of U.S. citizens. It is not impossible to imagine a president who, for instance, sincerely believes that Andy McCarthy is undermining the Justice Department’s ability to prosecute the war on terror on the legal front. A government that can kill its citizens can shut them up, no? I ask this not as a legal question, but as a moral and political question: How is it that a government that can assassinate Citizen Awlaki is unable to censor Citizen McCarthy, or drop him in an oubliette? Practically every journalist of any consequence in Washington has illegally handled a piece of classified information. Can the president have them assassinated in the name of national security? Under the Awlaki standard, why not?

Odious as Awlaki is, this seems to me to be setting an awful and reckless precedent. Consider how “interstate commerce” has been redefined over time to cover that which is neither interstate nor commerce, for the sake of political expediency. It is easy to imagine “national security” being treated the same way, particularly in an open-ended conflict against a loosely defined enemy. And we aren’t assassinating U.S. citizens under the rubric of interstate commerce.

THIRD: ANOTHER RESPONSE Re: Assassinating Awlaki   [Daniel Foster]

Kevin, when the first sniffs of this came up in February, I wondered how the White House-authorized assassination of an American citizen could do anything but undermine the Obama administration’s argument that water-boarding a foreign terrorist is barbaric and illegal.

And while I share your queasiness over the targeted killing of an American citizen by his government without due process, I still believe what I said at the time in response to a reader — that the aim of that killing surely matters:

Thankfully, it isn’t my job to adjudicate the matter, and my opinions on it are decidedly unsettled (and at times unsettling). I merely wanted to point to the prima facie oddness of a government that finds it acceptable in certain instances to kill American citizens abroad in order to disrupt plots against the republic, but finds it unacceptable to use enhanced interrogation techniques in pursuit of the same end.

Indeed, I intentionally kept my conclusion vague, because I’m unqualified and unprepared to endorse specific rules governing interrogation. And I purposefully didn’t mention techniques like waterboarding, which, even if it isn’t torture, is sufficiently close to torture to avoid being glib about. But I could do both and still open up the logical space between the two positions.

Another reader wondered whether my admittedly shabby argument could be used to justify torturing murder suspects (since it is already permissible for the state to kill them upon conviction). Again, my argument isn’t ambitious enough to justify any such thing. But I should say that the two cases aren’t analogous for a number of reasons, the most relevant of which is that capital punishment is punishment (at least in large part; that’s a whole other argument.). Killing American terrorists abroad is not intended to be retributive, but preventive. As Blair states explicitly in his testimony, American-born terrorists are only considered for assassination if they are involved in plots that pose an active and ongoing threat to American citizens. Mutatis mutandis, it is plausible (and I’d say, sensible!) to reject a technique for use as punishment, but to support the use of that same technique in an attempt to prevent some future harm.

 

When I say Obama’s decision was “obviously” correct, I am talking about the question from a constitutional standpoint. If we have American citizens who are fighting for the enemy in a war, some official of the government has to be responsible, in an ultimate way, for how we deal with that. In our system, that is the president. There can be no credible dispute about that. The Constitution makes the president the commander-in-chief, and thus the official responsible for the conduct of war. To the extent it was any of the courts’ business, the Supreme Court has held that there is no difference between American and alien enemy combatants — if they are fighting for the enemy, they can be treated as enemy combatants, meaning they can be killed or captured and detained outside the civilian justice system. The president is unquestionably the one to whom the Constitution entrusts this call.

I think it’s a good thing that you emphasize that your question is more moral and political than legal. The system the framers gave us was for a free, self-determining, adult people. It was not to be principally regulated by judicial processes. It was to be regulated by political processes, which is where the people’s moral sense best expresses itself.

All power can be abused, so reposing power in the courts is no more assurance that it won’t be abused than reposing it in the president. FWIW, I think the judicial power is far more likely to be abused because it is unaccountable. We can vote the president out of office if he oversteps his authority — and if he does it severely enough, he can be removed by impeachment. We can’t vote judges out of office and the possibility of impeaching them for poor judgment (as opposed to personal misconduct) is very remote. 

The examples you give of me frustrating DOJ and the reporter mishandling classified information are good ones for making this point. The category of person our government may lawfully kill or capture in wartime is “enemy combatant” (or “enemy belligerent,” the term Congress used in the last amendment of the Military Commissions Act, in 2009). To fit into this category, one would have to fall within Congress’s target in the 2001 Authorization of the Use of Military Force or within Congress’s subsequent definitions of enemy combatants. The AUMF authorizes force against “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons[.]” The later statutes brand as an enemy combatant or belligerent (a) members of al Qaeda, (b) one who engages in hostilities against the U.S. or its coalition partners, and (c) one who purposefully and materially supports hostilities against the U.S. or its coalition partners (the last category is controversial). My carrying out lawful activities that have the effect of frustrating DOJ would clearly be outside these definitions. The reporter engaging in the illegal handling of classified information may violate several laws, and may thus be prosecuted, but does not become an enemy combatant or belligerent who may lawfully be killed.

While the president lacks the legal authority to kill me or the reporter, he does have the power to kill us. Indeed, he has that raw power regardless of whether there is a war or not. What stops him from taking such actions is his own moral sense (including his oath of office), his understanding of our moral sense (meaning, it would be a political catastrophe to take such an action), and the potential for impeachment. I suppose it’s also possible that he could be prosecuted for murder, but there are legal questions about whether that is so. I doubt, in any event, that possible prosecution would weigh much in a president’s calculations. The moral and political pressures more than suffice as operational constraints.

Consequently, I don’t worry as much as Kevin does that the targeted assassination authorization is a reckless precedent. In fact, Obama is not creating a precedent; he is following one. Quirin is the German saboteur case from 1942. One of the eight combatants was an American citizen and six of them were executed within seven weeks of capture (off the top of my head, I don’t remember whether the American was executed or was one of the two combatants who were given long jail sentences). Despite the Quirin precedent, we really didn’t have another controversial case involving an American enemy combatant for over half a century. At that point, President Bush used the power exactly twice, and both instances (Hamdi and Padilla) clearly involved al Qaeda members. President Obama is now resorting to it for someone who is also clearly a member of al Qaeda. So while it’s certainly possibly that this power could be abused in the outrageous way Kevin suggests, experience does not indicate that it will be.

Finally, let me push back a bit on Kevin’s fear that powers and precedents can be stretched way beyond what was originally intended — as he says, witness the commerce clause. While that’s undeniable, our experience in the national security area shows that this can and often does work in the opposite direction — sometimes catastrophically. FISA and the infamous Clinton-era “wall,” for example, were overreactions to the broad powers to conduct warrantless surveillance conferred on the president by both the Constitution and court precedents. That is, Congress (in FISA) and the executive branch itself (in DOJ’s wall regulations) quite intentionally attempted to limit the president’s national-security power such that it was less than what the Constitution confers. One result was that, when an FBI national security agent realized in August 2001 that two al Qaeda terrorists were in the country, headquarters refused to allow the FBI’s criminal division to assist in locating them, interpreting the wall to forbid this type of collaboration. On September 11, those two terrorists were part of the team that plowed Flight 77 into the Pentagon.

I think the moral of the story is that the framers intentionally reposed awesome powers in the presidency. They were wise men and they well knew that power could be abused, but they believed (rightly, I think) that we could check abuse by the separation of powers and by ensuring that the president is politically accountable. Equally important, the framers (unlike us, I’m afraid) understood that the United States and our liberties were not necessarily forever, and that we would occasionally have to fight for them. They thus created a presidency that could quickly and decisively marshal all the power the United States is capable of bringing to bear in order to defeat threats to our security. There is always the danger that a rogue can accede to this power. When that happens, the problem is the rogue, not the power.