Laws Of War And Citizenship Stripping

By Big Tent Democrat, Section Civil Liberties
Posted on Fri May 07, 2010 at 10:25:22 AM EST
Tags: (all tags)

Share This: Digg!

How is "assasination" different than citizenship stripping?

Citing with approval news reports that President Obama has signed a secret order authorizing the targeted killing of a radical Yemeni-American cleric, Anwar Al-Awlaki, Mr. Lieberman argued that if that policy was legal — and he said he believed it was — then stripping people of citizenship for joining terrorist organizations should also be acceptable.

This echoes Glenn Greenwald:

Outrage over Lieberman's citizen-stripping bill is odd in light of Obama's assassination program: which would you rather have done to you?

I think this argument features a strain of divergence I have with Greenwald (a good faith disagreement) and people like Joe Lieberman. You'll also see it in my discussions of preventive detention. The Laws of War are simply different from criminal law. Thus, killing an enemy combatant or detaining an enemy combatant is a different matter than incarcerating (or even executing) an individual for criminal actions. More . . .

I posit that there is little doubt that the President, as Commander in Chief of the Armed Forces, can order military action against belligerent forces. This does not change when the belligerent forces include American citizens.

In discussing the issue of preventive detention, I wrote:

Glenn[Greenwald] portrays the power to indefinitely detain "alleged combatants" as something new. Clearly in a theater of war it is not. (Glenn's objection appears to be more directed at the scope of the "theater of war." And yet, the reality is that terrorists do operate all over the globe. In effect, there is an expanded "theater of war.) We used to call such detainees prisoners of war, and the Geneva Conventions applied to such detentions.

To me that is the key point to answering Glenn's question "when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it[?]" I opposed it BECAUSE the Bush Administration insisted that the Geneva Conventions did NOT apply to the detentions.

I would argue that application of the Laws of War are the proper method of analysis of President Obama's apparent order to attack Anwar Al Alwaki, a US citizen. To me the question is are Obama's directives consonant with the Laws of War.

John Walker Lindh was an American citizen fighting with the Taliban. He was, IIRC, injured by US forces. Obviously this had no due process implications. But what if there was an order specifically targetting Lindh? Would this violate due process? In my opinion, no.

The more interesting question is, and frankly I have not researched the answer, is it proper under the Laws of War to target enemy combatants for assassination, as opposed to a military force for defeat? I will research this question.

Speaking for me only

< Citizenship Stripping Proponents Misunderstand The Sixth Amendment | Friday Morning Open Thread >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

Laws Of War And Citizenship Stripping | 35 comments (35 topical)

Readers Must Login or Create an Account to Comment

I think there is a basic sense in some (none / 0) (#1)
by andgarden on Fri May 07, 2010 at 10:28:56 AM EST

quarters--and I don't wish to put words in Glenn's mouth--that war is generally illegal or extra-legal. And so talking about the law of war is like talking about the law of heaven.

Perpetual State Of War (none / 0) (#2)
by squeaky on Fri May 07, 2010 at 11:04:33 AM EST

With no boundaries, seems like a game changer, imo.

This must be why the neo-cons prayed for an event like pearl harbor... From PNAC's Rebuilding America's Defenses Sept 2000 (PDF) Section V:

Further, the process of transformation, even if it brings revolutionary change, is likely to be a long one, absent some catastrophic and catalyzing event - like a new Pearl Harbor.

Well (none / 0) (#3)
by Big Tent Democrat on Fri May 07, 2010 at 11:08:19 AM EST

No boundaries seems inaccurate to me.

Certainly, somewhat perversely, US territory is not a theater of war in the legal sense.

Outside of the US, well, a well functioning Congress would develop clear rules of the road,but obviously we do not have a well run Congress.


Using the "law of war" paradigm, (none / 0) (#5)
by Peter G on Fri May 07, 2010 at 11:25:47 AM EST

even though The Homeland is not a "theater of war," if an enemy belligerent or spy commits or attempts to commit an act of sabotage in the U.S. on behalf of the enemy, wouldn't that be a war crime addressable in and punishable by military tribunal (as well as a domestic crime, of course)? The Supreme Court said so with respect to the Nazi saboteurs (one of them a US citizen) who landed on Long Island during WWII. So I think it does come down to the question Squeaky raises -- is this struggle with violent, transnational, non-state, religiously-motivated actors a kind of "war," under international law, or isn't it? In fact, I think that has been the big question since 9/11.


It would be (none / 0) (#10)
by Big Tent Democrat on Fri May 07, 2010 at 11:30:47 AM EST

see Ex Parte Quirin, but the President is not empowered to order military action in the United States.


Are you saying that conducting (none / 0) (#25)
by Peter G on Fri May 07, 2010 at 12:18:16 PM EST

a trial by military commission is a form of "military action" that the President cannot conduct inside U.S. territory? I guess I don't understand your point.


: Not my argument (none / 0) (#38)
by Big Tent Democrat on Sat May 08, 2010 at 10:50:40 AM EST

But I think that is a pretty fair assessment.
Military tribunals in the US are a bad idea.

Why is the US not a "theater of war" (none / 0) (#6)
by david mizner on Fri May 07, 2010 at 11:26:49 AM EST

but, say, Yemen is?

By the illogic of the war of terror, everywhere is a "theater of war."


: The Constitutuon does not permit it (none / 0) (#9)
by Big Tent Democrat on Fri May 07, 2010 at 11:29:56 AM EST

in my view unless it is an insurrection.

: Because the FBI and law enforcement (none / 0) (#35)
by Militarytracy on Fri May 07, 2010 at 05:32:39 PM EST

has the authority to deal with terrorist threat inside the boundaries of U.S. territory. And they have the right to use deadly force too by the way. There isn't even an authority willing to deal with terrorist threat in Yemen, that we can go to as a sovereign power who can aid us in what endangers us in Yemen.

How So? (none / 0) (#8)
by squeaky on Fri May 07, 2010 at 11:29:24 AM EST

US territory is not a theater of war in the legal sense.

The paradigm of a war on terror will always be perpetual war, as it is a war that can never be won, or ended unless we arrive "back to the garden", so to speak.

Why isn't US territory included in the theater of war? As far as I understand there are no bounds to the WOT, a convenience whose usefulness cannot be overstated enough.

The Constitution does not permit it (none / 0) (#11)
by Big Tent Democrat on Fri May 07, 2010 at 11:31:31 AM EST

unless it is an insurrection.


Interesting (none / 0) (#14)
by squeaky on Fri May 07, 2010 at 11:35:47 AM EST

Thanks...

Not sure why the teabaggers, and the Loserman's teaparty law has not moved to change that little constitutional bugaboo...


: Ha. I shall remember that category (none / 0) (#37)
by Cream City on Fri May 07, 2010 at 08:52:40 PM EST

aka "little constitutional bugaboos."
Amazing, the range of our rights that are so categorized by some conservatives.

Two different things (none / 0) (#7)
by Big Tent Democrat on Fri May 07, 2010 at 11:29:20 AM EST

I am talking about the legal regimes that are developing, not necessarily whether they will be effective or not.

The confusion in comparing the citizenship stripping to the assassination orders AS A LEGAL MATTER is what I am talking about.

Assassination as a legitimate tool of war is an either it is or it isn't thing. There is not contradiction between thinking it is and also thinking that the citizenship stripping proposal is unconstitutional.

This is mixing up apples and oranges.

Just as Glenn has done regarding preventive detention.

So in your view, an American (none / 0) (#13)
by david mizner on Fri May 07, 2010 at 11:34:09 AM EST

citizens loses his constitutional rights as soon as he leaves the United States?

Likewise, the rules of war apply everywhere except in the United States?


My view? (none / 0) (#16)
by Big Tent Democrat on Fri May 07, 2010 at 11:37:30 AM EST

The SCOTUS' view actually,

See the Firth Amendment jurisprudence on the subject,

See also the Insular Cases.

Should it be that way? Perhaps not. But it is what it is.


Now you're talking lawyer (none / 0) (#18)
by david mizner on Fri May 07, 2010 at 11:40:47 AM EST

I don't understand.

Is it really the case that an American citizen who flees say, a drug rap by going to France forfeits his constitutional rights?


Is he an enemy combatant (none / 0) (#19)
by Militarytracy on Fri May 07, 2010 at 11:50:09 AM EST

seeking to make guerrilla style attacks upon the United States? In my opinion the determination of "enemy combatant" is the game changer.


So why does an "enemy combatant" (none / 0) (#21)
by david mizner on Fri May 07, 2010 at 12:00:54 PM EST

have rights in the U.S but nowhere else?

It seems to me that both Holy Joe and Greenwald are being consistent. Either American citizen-enemy combatant have constitutional rights or they don't.


Because we have the authority (none / 0) (#22)
by Militarytracy on Fri May 07, 2010 at 12:05:28 PM EST

to contain the danger that person poses to the population and address it through incarceration, while giving that person due process. Outside U.S. territory we do not have that option. Enemy Combatant determination must come with evidence, and I believe at this time it does but I cannot say that under Dubya much if any evidence was required.


: I think it is important to make (none / 0) (#24)
by Militarytracy on Fri May 07, 2010 at 12:12:42 PM EST

note as well, no matter how dangerous someone has been deemed to be...killing them is actually viewed as loss of asset that could benefit the safety of the world. And given our current situation, martyring them has a huge downside verses imprisoning them for life. But if capture is unlikely or extremely risky to others, we will kill them and we do.

You misstate Greenwald's views (none / 0) (#23)
by Big Tent Democrat on Fri May 07, 2010 at 12:06:29 PM EST

it seems to me.

They are not what you are expressing.


Maybe (none / 0) (#27)
by david mizner on Fri May 07, 2010 at 12:49:04 PM EST

So I'll just speak for myself...

In Hamdi -- I should've mentioned the case earlier -- the Supreme Court found that an American citizen terrorist suspect picked in Afghanistan had constitutional right to challenge the legality of his detention -- ie that he had constitutional rights. Greenwald and David Cole and many others have pointed out the contradiction between Hamdi and Obama's claiming the right to assassinate American citizens, which of course denies suspect due process. And a similar contradiction exists between insisting on rights for suspects in the U.S. but accepting their summary execution overseas (where Hamdi has granted them constitutional rights.)


: He had rights after he no longer (none / 0) (#29)
by Militarytracy on Fri May 07, 2010 at 01:04:41 PM EST

posed a risk to others....once we had established authority over him and removed him as an immediate threat, he has those rights. If we are able to capture any such person, then of course they have right to due process. Are you arguing that what Obama has authorized gives us the right to walk into a room and shoot someone in the head after they have been contained and can no longer harm others? When they are at large though and part of a defined enemy, we must do what can be done to deal with the danger, and sometimes that means removing them by killing them just like the people they fight with who are not U.S. citizens.

Two points ... (none / 0) (#12)
by nyrias on Fri May 07, 2010 at 11:32:41 AM EST

First, it is a legitimate issue to question WHAT is a "war of terror" since it is so different, in many characteristics, compared to say WW2.

However, I think if you look at assassination in the context of a properly defined war, it is less, or not, problematic.

I don't think anyone would object to shoot Hilter in his sleep, or any of his top generals.

: I wouldn't object (none / 0) (#17)
by Militarytracy on Fri May 07, 2010 at 11:38:22 AM EST

But I would spend a long time squaring that with self.

Can a determination of enemy combatant (none / 0) (#15)
by Militarytracy on Fri May 07, 2010 at 11:36:33 AM EST

come before that combatant's U.S. citizenship and be a rule changer outside of U.S. territories? I say yes. Do I realize that I have now placed myself in a sort of boat riding along with say Israel and Mossad assassins? I suppose I do.

Where are the Textualist Fetishists These Days? (none / 0) (#20)
by kaleidescope on Fri May 07, 2010 at 11:58:45 AM EST

Usually they're conservatives. When it comes to the actual language of Article I, Section 8, however, suddenly these textualist fetishists are all for an "evolving Constitution." Anything a [Republican] president calls a war is, and our normal constitutional protections come in for special, degraded, treatment.

In reality, Congress has not declared war so, legally, we are not at war. At least if you take the text of the Constitution seriously.

One could make the argument that among the powers the Bill of Rights amended and cut back were the powers to declare war and to be the commander in chief of the armed forces. Or that at least the Bill of Rights cut back on the government's power to impose special rules for due process when a war-like operation -- as opposed to an actual war -- is in progress.

We should not forget that the Bill of Rights was passed AFTER both Article I and Article II, and that the Bill of Rights therefore modifies and amends the powers granted to Congress and the President under Articles I and II, not the other way around.

And that seems the rub to me: the national security establishment, under both Republicans and Democrats, seeks to define what should be a law enforcement situation -- what you would have in dealing with piracy, felonies committed on the high seas, and offenses against the laws of nations -- as being a state of war, with all the special exigencies, rules and exceptions to due process that apply when there is an actual, congressionally declared, state of war.

If, in addition to the text of the Constitution itself, you consider the intent of its founders -- particularly Madison's concern about the dangers of a standing army -- you get an even better case that the Constitutional rule of construction should be to construe the power to impose war-like rules narrowly, not expansively. And, thus, the U.S. involvement in western and central Asia should be construed as a law enforcement operation rather than as a state of war, that the rights of those subject to the jurisdiction of the United States should be the same as they would be under, say, an operation to capture and punish pirates or those engaged in the international slave trade.

In WWII, we targeted a Japanese (none / 0) (#26)
by MKS on Fri May 07, 2010 at 12:32:40 PM EST

general or admiral for assassination. We planned a mission that had as its only objective the shooting down of a plane he was on.....Those involved had some doubts about whether it was the right and honorable thing to do, iirc.

What is interesting is that years ago many believed there were such things as rules of war, and acting honorably in war. Few believe that today. War is Hell and what happens, happens.... Professional soldiers used to not believe that....

It was Yamamoto (none / 0) (#28)
by MKS on Fri May 07, 2010 at 12:50:58 PM EST

There was controversy among the U.S. pilots on the mission--but it was about who actually shot down Yamamoto's plane.....

I have found some reference to thought given to not trageting Yamamoto because he was seen as being someone who the U.S. would want as a leader in post war Japan. Yamamoto was dubious of war in general and with the U.S. in particular--and was a rival of Tojo. But Yamamoto planned and led the attack on Pearl Harbor and his death was a morale boost to us and loss to the Japanese.


The difference being (none / 0) (#30)
by jbindc on Fri May 07, 2010 at 01:46:57 PM EST

He wore the uniform of the enemy. Now, don't get me wrong - I would not feel bad if we found OBL and put a bullet in his brain - bur I do see that (legally) as a difference. Of course, we need to find an answer as my guess is, none of future enemies will be wearing uniforms and be under the command of the recognized leader of a country. We can't clutch our pearls forever and say "He/she isn't part of an organized army, so we can't use battlefield tactics or the laws if war against him/her."


: Sure, Bin Laden (5.00 / 1) (#31)
by MKS on Fri May 07, 2010 at 01:55:53 PM EST

is an easy call, imo.
Other leaders of al Qaeda too.
But who is a terrorist can become very nebulous as shown by all the innocent people we had at Gitmo.....
Best to not target someone unless absolutely sure.....

The difference betweeen a freedom fighter and... (none / 0) (#34)
by canuck eh on Fri May 07, 2010 at 05:13:04 PM EST

a terrorist is a fine distinction. Nelson Mandela was on the US 'Terror Watch List' for years but now is recognized as a highly respected international diplomat who has no trouble getting into the US.

: B.S. (none / 0) (#36)
by Militarytracy on Fri May 07, 2010 at 05:39:05 PM EST

What freedom did I deny Osama, and Al Qaeda, and their support system of the Taliban prior to 911? He can pull any religious ideology out of his behind....perhaps I'm giving his daughter's ideas about keeping their genitalia in the same condition they were born with. That isn't hampering his freedoms though as far as governing his person, only his ability to harm others as easily as he already does.