Where And When Can The President Order "Assassinations" In Wartime?

By Big Tent Democrat, Section Other Politics
Posted on Mon Oct 04, 2010 at 03:05:04 PM EST
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Glenn Greenwald cites to this Scott Horton post on the question of Presidential assassinations. Glenn describes Horton's post thusly:

Harper's Scott Horton, who says he originally thought the objections of civil libertarians in the Awlaki case were overblown, but has now concluded -- in light of the Obama DOJ's brief -- that the Obama program is the embodiment of "tyranny"[.]

Horton's post is quite muddled in my view (and rightly so - this is a very tough issue.) For Horton also writes:

I don’t for a second question the principle established in Quirin, and I believe that the president can in some circumstances target and remove figures in a command-and-control position over hostile forces even if they are removed from a conventional battlefield. But I am deeply suspicious of the need to add to the president’s theoretical powers by killing a U.S. citizen in Yemen who could certainly be captured, brought back to the United States and put on trial.

(Emphasis supplied.) What if the President concludes that Al-Alwaki was "in a command-and-control position over hostile forces removed from a conventional battlefield?" I have great respect for Greenwald and Horton. I think they raise important problems with this policy. I think the legality of the policy is not one of those problems.

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Where And When Can The President Order "Assassinations" In Wartime? | 45 comments (45 topical)

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I respect you greatly, BTD (5.00 / 5) (#1)
by Dadler on Mon Oct 04, 2010 at 03:10:49 PM EST

But on these issues, you make not a whit of rational or moral sense to me. Maybe to others you do, but not to me.

Your hypothetical, IMO, does nothing but cement the need for an end to the crap you are supporting. Power corrupts, absolute power corrupts absolutely. This power, to order the assasination of American citizens, is as corrupt as the definition gets.

IMO, we'd be better of completely withdrawing from the world for a decade than pursuing the idiocy we are now.

What am I supporting in your view? (1.00 / 1) (#2)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:15:24 PM EST

Let me try again. I am supporting the view that the President's policy is LEGAL. Not wise, but LEGAL.

Not every legal policy is wise.


No, BTD, No. (5.00 / 1) (#4)
by scribe on Mon Oct 04, 2010 at 03:51:31 PM EST

You are making yourself look like a silly O-bot in trying to square this circle alongside him.

The AUMF applies only to those who planned and carried out the 9/11 attacks and those who supported them in that. Go read it.

Targeting some cleric in Yemen who, at best, is a 2d or 3d generation successor to the guys the AUMF applies to is exceeding its scope - unlawful combat.

Engaging in sophistry about how the whole world is a battlefield was pretty well rejected earlier this past decade. Not for nothing, the Administration keeps trying it.

But, really, BTD, you should stop embracing this silliness. There is no compromise possible with this position, no differences to be split and no boundaries to fuzz with argument. Either you are in favor of or opposed to a president having the unilateral, unreviewable and unstoppable power to kill anyone anywhere on a whim.

FWIW, al-Alwaki appears to have been added to the target list at the request of the Yemeni government, for whom he is an inconvenience while being so popular in Yemen that the Yemenis killing him themselves would being them undue problems in their own domestic sphere. In other words, the US president has decided that killing one of his own citizens at the behest of a foreign power unwilling to do it themselves is OK. Do you really want to support that?

And, as I said before, the way this is reasoned and set up:

If they can do it to him, they can do it to you.

Stop now, while you can.


Are we arguing over the 2001 AUMF then? (none / 0) (#7)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:57:18 PM EST

Just want to be clear.


There's no argument (none / 0) (#24)
by scribe on Mon Oct 04, 2010 at 05:49:42 PM EST

The text of the AUMF is what it is, and it does not cover al-Awlaki. So, proceeding against him using the AUMF as the basis for whacking him - is untenable and illegal.
If you exclude the AUMF (And logic says you have to), then the basis of the claim to be able to whack al-Awlaki is reduced to Presidential inherent power. What the President is saying with his killing program is that he has the inherent power to have anyone, anywhere, killed for any reason and that no one may reveiw, let alone contravene, him.

These administration positions are inconsistent with constitutional governance. But, they are consistent (only) with dictatorial tyranny.

Now get that a*s off your shoulders and stop trying to gin up smokescreens and diversions like an O-Bot.


: A helpful (none / 0) (#25)
by Militarytracy on Mon Oct 04, 2010 at 06:00:29 PM EST

Hee-haw law! (none / 0) (#33)
by Jacob Freeze on Mon Oct 04, 2010 at 09:30:45 PM EST

Big Tent Democrat isn't talking about black-letter law here, he's talking about hee-haw law!

So when BTD says assassinating American citizens is legal, he doesn't really mean "legal" in the usual sense of the word.

He means "hee-haw legal!"

Under "hee-haw law," if the President likes you, the way Obama likes bankers, you can get away with anything! No charges! No problem!

But if the President doesn't like you, the way Obama doesn't like al Awlaki, then Obama just kills you!

That's "hee-haw law," and as soon as you understand that concept, you understand everything else about Obama and the rest of the Democratic Party, too.


When you're a hammer, (5.00 / 5) (#3)
by Anne on Mon Oct 04, 2010 at 03:27:20 PM EST

everything looks like a nail, or so it is said.

I seem to remember that when Bush was president, he had people who were happy to advise that whatever it was he wanted to do, it was "legal," and I have no reason to doubt that Obama is more or less doing the same thing - aided, of course, by the absence of someone as head of OLC who would be more than a bobblehead, and probably further helped by Kagan being on the SC and having to recuse herself from cases that involve policies she was concerned with as Solicitor General.

D-Day weighs in with this today (my bold):

What this means is that, for the first year at least and perhaps longer, Kagan will be basically unavailable on a host of important cases, leaving the possibility of 4-4 splits at best for cases that could have been decided by a 5-4 majority. With Roberts, Alito, Scalia and Thomas making up a fairly formidable bloc, on any cases where Kagan recuses it would be nearly impossible to reach a decision. This means that whatever decision was made at the lower level would be allowed to stand. In addition, some civil liberties lawyers are hesitating about bringing other cases up until they can be sure that Kagan will be able to hear them.
That represents something of a crisis for the courts. And it also represents a virtual shield around the President's policies on national security, and the various challenges to his habit of evading accountability for his predecessor, George W. Bush. Kagan almost certainly acted in accordance with those policies, and will likely need to recuse herself on almost all of those cases, giving the Roberts Four the opportunity to block any scrutiny if they so chose.
As Barry Friedman and Dahlia Lithwick argue in an excellent post today, the Roberts Court has created a variety of new strategies to mask their lurch to the right from the public while advancing it on the Court. This is another one, but it's entirely not Robert's doing; appointing Kagan necessarily created this kind of legal loophole. And I'm sure the people advising the President on these matters knew what they were doing.

I don't find "but it's legal" to be a good enough reason to have policies like this one, but since we have abandoned all pretense at any kind of accounatability, I'm at a loss to know how to make policy drive the agenda.

All Hail Gratuitous Killing (5.00 / 1) (#14)
by pluege2 on Mon Oct 04, 2010 at 04:31:12 PM EST

Interesting concept - "removed from the battlefield". For example, what is the status of the US staff in Washington DC operating the joysticks controlling drone strikes over Pakistan. Does that make Washington DC part of the battlefield, or is just the room where the joystick operators reside, or is the issue just the joystick operators and not the technological support?

The mental masturbation of war "legalities" and "illegalities" are inane. War is always a crime against humanity. There is no case for state-sponsored assassinations - certainly not any moral case, and everything else is just a circle jerk of infantile arrested development child-men rationalizing their sexual inadequacies.

no person is born with, or ever acquires the right of gratuitous killing.
.

"Gratuitous" is not (5.00 / 1) (#35)
by gyrfalcon on Mon Oct 04, 2010 at 11:48:47 PM EST

an appropriate word here. Please. Could we stay within the bounds of reality?

And I beg to differ, there most certainly is a moral case for state-sponsored assassinations of the leadership of your sworn enemy. Still not sure which side of that I'd come down on, but there most definitely is an excellent moral case for it.


Now that (none / 0) (#18)
by Zorba on Mon Oct 04, 2010 at 05:16:25 PM EST

is a very interesting question you posed:

For example, what is the status of the US staff in Washington DC operating the joysticks controlling drone strikes over Pakistan.

Battlefield? If not, how are they different from the pilots of helicopters or planes delivering missiles directly? If so, does that give another country or entity that happens to be the target of our drones, the right to drop a bomb on the building containing the joystick-handlers (assuming that they could identify said building) in retaliation? It is, indeed, "mental masturbation," pluege2, and war is a crime against humanity. There may be times when it becomes necessary (invading Afghanistan and Iraq, in my opinion, were not necessary), but innocent civilians will invariably suffer and be killed. We should always recognize that.


We are all battlefield now! (none / 0) (#29)
by pluege2 on Mon Oct 04, 2010 at 07:26:33 PM EST

love it or leave it - that is the choice.


: That, indeed, (none / 0) (#30)
by Zorba on Mon Oct 04, 2010 at 07:57:03 PM EST

seems to be the case. It's the "War on Terror." All war, all the time.

I don't see this as debatable at all (none / 0) (#36)
by gyrfalcon on Mon Oct 04, 2010 at 11:50:27 PM EST

To me, the drone operators in the Pentagon basement, or wherever they are, are absolutely legitimate targets. That's why we hide them.


Where And When Can The President Order... (5.00 / 1) (#28)
by pluege2 on Mon Oct 04, 2010 at 07:24:02 PM EST

"Assassination""

only a bunch violent lizard brain retards would even ask the question, let alone pretend like its a legitimate intellectual exercise suitable for something other than some inhuman out of body narcissistic fantasy indicative of a thoroughly detached, dehumanized, demented society.

The US is infested with many of the most pathetic excuses for human beings to ever walk the earth.

The answer is NEVER! Jack-wads!

: My, that was helpful (none / 0) (#38)
by gyrfalcon on Mon Oct 04, 2010 at 11:53:00 PM EST

Thanks ever so.

Really not following you. (none / 0) (#5)
by Maryb2004 on Mon Oct 04, 2010 at 03:53:59 PM EST

For argument's sake, let's say that there are no legal restraints on a President's power to assassinate citizens in a war where the battlefield encompasses the entire world.

I don't see how that is necessarily incompatible with tyranny. If the law allows arbitrary and unrestrained power then the law allows tyranny. That may make the actions legal but it doesn't make them any less tyrannical.

But can a law that allows tyrannical powers by the President be constitutional? And if it cannot - then it can't be the law.

Now I'm not following you (none / 0) (#6)
by Big Tent Democrat on Mon Oct 04, 2010 at 03:56:25 PM EST

You write "[C]an a law that allows tyrannical powers by the President be constitutional? And if it cannot - then it can't be the law."

No a law that allows tyrannical power by the President be constitutional. Do you think the President's ordering a belligerent act against a leader of a group of hostile forces, even though that leader is not, strictly speaking, in a battlefield, an act of tyranny?

Is it an act of tyranny because that hostile leader is a citizen?

Please explain.


So really it comes down to what is tyranny? (none / 0) (#8)
by Maryb2004 on Mon Oct 04, 2010 at 04:03:52 PM EST

I did not choose that word (none / 0) (#9)
by Big Tent Democrat on Mon Oct 04, 2010 at 04:07:49 PM EST

Horton did.

I am arguing what is legal (which also means constitutional to me.)


I posited my hypothetical (none / 0) (#10)
by Maryb2004 on Mon Oct 04, 2010 at 04:11:15 PM EST

in my original comment:

"For argument's sake, let's say that there are no legal restraints on a President's power to assassinate citizens in a war where the battlefield encompasses the entire world. "

I think that's what you are arguing. You haven't yet argued that there are any legal restraints. So I don't see your argument as rebutting Horton's argument that it is an act of tyranny. You claim it is legal under the laws of war. I say if it is tyranny it can't be legal.


Not my argument (none / 0) (#11)
by Big Tent Democrat on Mon Oct 04, 2010 at 04:19:44 PM EST

I state clearly that in the US, it can never be legal.

With regard to US citizens not in the US, well, enemy combatants are subject to the laws of war - including, in case anyone cares, the Geneva Conventions.

Ironically, if Al-Awlaki was in the US, he could not be subject to a kill order from the President. He could of course be subject to an arrest warrant.

Let me now ask you a question - are you ok with with Presidential kill orders against American citizens in Iraq, Pakistan and Afghanistan?

I don't see your US exception as dispositive. (none / 0) (#16)
by Maryb2004 on Mon Oct 04, 2010 at 04:40:03 PM EST

Does the law of war have any other exception?

If the President is allowed by the law of war to unilaterally kill US citizens anywhere else in the world without any restraint - then it allows him to exercise arbitrary and unrestrained power over US citizens everywhere in the world other than the US.

If he arbitrarily exercised that power, would he be acting constitutionally? I say no.

And how do we know if he is acting arbitrarily? How do we constitutionally protect against him acting arbitrarily?

You want to get into the weeds about "what if" the targeted hit is located somewhere other than where he is. Those facts aren't before us.


Two points (none / 0) (#17)
by Big Tent Democrat on Mon Oct 04, 2010 at 04:48:22 PM EST

First, you write "If he arbitrarily exercised that power, would he be acting constitutionally? I say no."

I think the President is the Commander in Chief of the Armed Forces. When so authorized by the Congress of the United States, he can order belligerent acts against the nations, entities and persons the Congress has authorized action against outside of the United States. (In times of insurrection, the parameters are somewhat different.)

In September 2001, the Congress of the United States empowered the President to make such determinations with regard to individuals in the AUMF.

Was the AUMF Constitutional? Good question. It was certainly stupidly written.

As for what you term a "hypothetical, it is no such thing. The President orders people killed in Iraq, Afghanistan and Pakistan every day.

Is that constitutional? And if so, why is that constitutional, but not the belligerent act ordered against Al-Awlaki?


I see no reason (5.00 / 1) (#20)
by Maryb2004 on Mon Oct 04, 2010 at 05:22:45 PM EST

why we can't judge the constitutionality of the proposed killing of Al Awlaki by itself without reference to killings in other parts of the world. Yes, it would certainly be nice to come up with a comprehensive list of what killings are constitutional and which aren't in war - but that isn't really how courts interpret the constitution is it?

The question is whether or not there are limitations on the President's power to have people assassinated during a war. Is there a line? If there is a line does Al Awlaki fall inside or outside of it?

You seem to think that his assassination would fall well within the line. I think the proposed killing of Al Awlaki falls well outside the line even if I can't tell you where the line is. My question is whether you see any line? And where is it?

That's why I think discussing Iraq and Afghanistan and Pakistan is a waste of time in this particular case. Your line is further out than my line, if it exists at all. And since this is your blog post, not mine, I'm asking you where your line is. IS there any line for you?


: If he were within the jurisdiction (none / 0) (#31)
by Militarytracy on Mon Oct 04, 2010 at 08:12:52 PM EST

of the United States at this time he would immediately be arrested and tried. He is not residing within U.S. jurisdiction though and is an enemy of the United States organizing a terrorist organization and acts of terrorism against the United States. That is where the line is for me. If you seek to murder me and harm me within U.S. jurisdiction we have a means to deal with that danger. If you conspire and seek to murder me while residing outside the U.S. jurisdiction and the jurisdiction of a sovereign power that can enforce rule of law and bring you to justice, that is a combatant in a war zone.

Fascistic filth (none / 0) (#22)
by Andreas on Mon Oct 04, 2010 at 05:39:43 PM EST

I find it remarkable that one can now find arguments on Talkleft which in the past have been the trademark of the fascistic filth within the Republican Party.


If (none / 0) (#13)
by lentinel on Mon Oct 04, 2010 at 04:31:03 PM EST

you are saying that this policy is legal - but maybe not wise - (I would add maybe not moral - maybe not the way we would like an American president to act)...

is there some way that we can make it illegal?

Sure (none / 0) (#15)
by Big Tent Democrat on Mon Oct 04, 2010 at 04:38:22 PM EST

Congress can pass a law.


It would still be illegal (none / 0) (#21)
by Andreas on Mon Oct 04, 2010 at 05:33:36 PM EST

Maybe some people should inform themselves about the Nuremberg war crimes trials and international law.


: According to you, (none / 0) (#23)
by andgarden on Mon Oct 04, 2010 at 05:40:59 PM EST

is there such a thing as a legal war?

: Delete parent (none / 0) (#45)
by Andreas on Tue Oct 05, 2010 at 11:34:48 PM EST

I misread the question

It is (none / 0) (#27)
by lentinel on Mon Oct 04, 2010 at 06:22:54 PM EST

extremely doubtful that such a bill would ever come to the floor for a vote, but were it to do so, would you be in favor of passage?


Yes (5.00 / 1) (#40)
by Big Tent Democrat on Mon Oct 04, 2010 at 11:58:37 PM EST

Talkleft promoting state terrorism (none / 0) (#43)
by Andreas on Tue Oct 05, 2010 at 11:29:15 PM EST

This probably is a new low for Talkleft. After it helped Obama into office it now promotes state terrorism.


: Delete parent (none / 0) (#44)
by Andreas on Tue Oct 05, 2010 at 11:33:45 PM EST

I misread the question.

It isn't illegal (none / 0) (#19)
by Militarytracy on Mon Oct 04, 2010 at 05:22:10 PM EST

I agree with BTD.

: So do I (5.00 / 1) (#37)
by gyrfalcon on Mon Oct 04, 2010 at 11:51:41 PM EST

though I regret that. There's three questions here-- legal, moral and practical. I agree on the legal part, I'm conflicted on the moral, and totally opposed on the practical.

Does CINCCENT have this "legal" (none / 0) (#26)
by BTAL on Mon Oct 04, 2010 at 06:03:00 PM EST

authority under his charge of conducting/waging the war in his theater of operations? Does the local theater commander have this authority within his command?

Did Lt. Calley have this "legal" authority within his squad?

My question is this: (none / 0) (#32)
by Xclusionary Rule 4ever on Mon Oct 04, 2010 at 08:42:31 PM EST

Anwar Al-Awlaki is either (a) a dangerous criminal who is planning an attack on the US, or (b) a harmless blowhard with a web site. If he is so dangerous, why did he send his Dad to court in the US to file a habeas petition?

: Huh? (5.00 / 1) (#39)
by gyrfalcon on Mon Oct 04, 2010 at 11:55:08 PM EST

Maybe because his dad isn't a target. At least not yet. No idea what your point is. Would Ted Bundy's dad have filed a petition, if he had standing, to try to prevent his son's execution for serial killing? If so, would that make Ted Bundy any less of a dangerous serial killer?

I don't think we're arguing (none / 0) (#34)
by gyrfalcon on Mon Oct 04, 2010 at 11:46:10 PM EST

about assassinating, or targeting, the vice admiral whatsis of a foreign power with whom we are in a congressionally declared state of war, are we?

i must say BTD, your logic, (none / 0) (#41)
by cpinva on Tue Oct 05, 2010 at 11:52:30 AM EST

if it can be called that, escapes me.

to use your "logic" (and, to be fair, the "logic" of the bush administration), chairman mao & nikita kruschev were both legitimate targets for assassination, because they both led governments which were hostile to the US, even though we technically weren't actually at war with those countries.

whoever the current leader of n. korea is, is a legitimate target for assassination, because that country IS still at war with the US. and so on, and so on, etc. etc., etc.

a US citizen, living abroad, not the leader of any country, is a legitimate target for assassination, though no formal charges have been filed against him, no extradition has been requested (i don't know if we have an extradition treaty with yemen), but our government asserts, absent formal presentation of rebuttable evidence, that he leads a group hostile to the US.

and you seem to think this is all legal?

you know, the tea party may well have a point.

: there is legal (none / 0) (#46)
by CST on Wed Oct 06, 2010 at 08:49:52 AM EST

and then there is practical.
The CIA has certainly gone after rogue dictators in the past (Cuba?). That didn't work out too well for the good ol' USA.
We do not have an extradition treaty with Yemen. I'm sure that plays into all of this. I doubt we'd be targeting him if he were living in France.

oh, and there's also the (none / 0) (#42)
by cpinva on Tue Oct 05, 2010 at 11:55:35 AM EST

(not so small) matter of yemen's government. perhaps they might have something to say, about the US officially targeting its residents for assassination?

or, have we, as a country, reached the edge of the "we don't really give two nanny-goat's sh*t what other countries think?

off to get my tri-cornered hat.