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On Side-Swappers

April 7, 2010
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The news came out today that the President has authorized operations to assassinate (yes, that’s assassinate in the “kill ‘em dead” sense) an American citizen—the radical cleric, Anwar al-Awlaki, of al-Qaeda in the Arabian Peninsula (AQAP), who was in close contact with both Nidal Malik Hasan, the Fort Hood shooter, and Umar Farouk Abdulmutallab, the Knickerbomber.  This should make you squeamish on a couple of levels: a) al-Awlaki was born in New Mexico, which means he is a citizen of this country, and b) why does the President have the power to just decide he wants an American citizen dead?  Well, there’s an answer to that.  This is a war, and a war necessitates the use of those special rules that I’m always talking about.  This particular special rule can be found within the documentation of Congress’s 2001 AUMF inciting the war against al-Qaeda, which Andy McCarthy detailed today:

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).

As of right now, all signs point to al-Awlaki’s being aggressively involved with AQAP, which means that we are at war with his organization and, by extension, him.  Of course, this is not really that simple.  For starters, how do we even know al-Awlaki is affiliated with al-Qaeda?  Couldn’t these “signs” just be… signs?  It’s not like al-Qaeda operatives wear red coats with big white X’s on them like the British did in the Revolutionary War—it’s not like they have serial numbers and the lot.  I would expect that determining a person’s association with the organization is a pretty difficult thing to decide, and if the President is interested in assassinating a citizen of the nation he was elected to protect, he better damn well have a good bloody reason to do it.  And I’m not convinced that, according to the NYT, just because “American counterterrorism officials say” so is a good enough explanation.  Spencer Ackerman says he spent the whole morning filling out Freedom of Information Act forms, so I hope we’ll find out soon enough what the real story is here.  Of course, determining who is and who is not a member of al-Qaeda is probably always a difficult thing to do, but I think we should probably exhibit a little more caution when dealing with actual Americans.

Secondly, even if al-Awlaki is affiliated with AQAP, can we just… do this?  The President didn’t just authorize al-Awlaki’s killing during the course of battle or anything (which of course would be trivial—people would be shooting each other in that situation) because in this war, there isn’t really a battlefield.  The cleric isn’t out in the middle of a field with a tommy gun and some grenades hurling them at American infantry.  The President essentially signaled that it’s okay to go into al-Awlaki’s room while he’s sleeping and slit his throat, which I guess is sort of necessary since his bedroom is as much of a battlefield as Bull Run was.  This is of course in direct contradiction to the Supreme Court’s ruling in the 2004 Hamdi v. Rumsfeld decision, which held that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”  Now, guys like McCarthy believe that the judiciary is overstepping its bounds here because it’s not responsible for national security and therefore it is solely the decision of the President to decide these things because he is responsible for the defense of the country.  I may be open to some convincing on that one, but the decision still really gives me goosebumps.

Yes, we may be at war with this cat, and in a war, people die, but there’s no way you can be comfortable with our military actively searching out an American citizen in order to kill him.  But that’s the problem.  As Glenn Greenwald explains here, everybody has basically avoided this question for the last ten years because it’s so sticky—we’ve essentially not been addressing the issue, I imagine, because nobody knows where he should stand on the issue.  By all means, bring him in, charge him with treason, and put him before the firing squad.  But kill him?  I say no sale.  The President can’t just say he wants to kill somebody and have it done—that’s called arbitrary government.  The principle of limited government stretches across all bounds, not just Congress and the judiciary.  Even though I’ve been talking about my squeamishness the whole time, my opinion on this is not determined by my feelings.  The President should not have that power.  It’s just a bad idea.

War calls for desperate measures, but desperate measures must be taken at all times to limit the power of the whole spectrum of government.  There are bigger things at stake here than the life of one single, if detestable, enemy of the United States.

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2 Comments leave one →
  1. Nazi Mom permalink
    April 7, 2010 8:50 PM

    With the volume of backroom arm twisting and various shenanigans that has gone on in this administration, one must wonder why this “assassination order” has been made so public. Could we be pandering to the not so leftist among the constituency? Hmmmmm…

  2. April 7, 2010 8:59 PM

    You’d certainly think so, especially given the new “Let’s drill offshore!” policies that the President says he’s “pursuing” just so he can say that he was open to pursuing them. It is a good question, though: why was the public informed of this in the first place? Seems like classified information. Politics as usual, in all likelihood.

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