Join 3,572 readers in helping fund MetaFilter (Hide)


Saving Anwar
August 3, 2010 10:13 AM   Subscribe

You're a 39 year old American citizen born in New Mexico. Though it has convicted you of no crime, the US government is trying to kill you. Your father retained the American Civil Liberties Union and the Center for Constitutional Rights to seek a federal court order restraining the killing. Two weeks later, the Treasury Department labeled you a "Specially Designated Global Terrorist". This makes it a criminal offense for the ACLU or CCR to provide you with legal representation.

It's rather amazing that the Federal Government asserts the right to require U.S. citizens and American lawyers to obtain government permission before entering into an attorney-client relationship -- all because these officials decided on their own, with no process, to call the citizen a "Global Terrorist." It's difficult to imagine a more blatantly unconstitutional power than that. What kind of an American would think the Government has the power to decide whether citizens may or may not be represented by lawyers? Then again, this is an administration that asserts the power to choose American citizens for targeted killings far from any battlefield with no due process of any kind -- and plenty of its supporters are perfectly content with this -- so nothing should really be surprising.

If one really thinks about it, it's an incredible spectacle that a lawsuit is being filed with the aim of having Barack Obama enjoined by a Federal Court from killing an American citizen, far away from any battlefield, without any due process whatsoever. That such a suit was never filed during the Bush years, but is now necessary under the rule of this Constitutional Scholar almost a decade after the 9/11 attack, speaks volumes about many important facts.
- Glenn Greenwald
posted by Joe Beese (278 comments total) 14 users marked this as a favorite

 
Frankly I'm fine with us shooting him.
posted by y6y6y6 at 10:17 AM on August 3, 2010 [16 favorites]


Yeah, not able to muster up a lot of sympathy here either.
posted by mr_crash_davis mark II: Jazz Odyssey at 10:18 AM on August 3, 2010


And y'all say MetaFilter can't handle dissent.
posted by kipmanley at 10:21 AM on August 3, 2010


Frankly I'm fine with us shooting him.

*checks to see if this profile is registered to Obama*
posted by hermitosis at 10:21 AM on August 3, 2010


"When due process fails us, we really do live in a world of terror."
posted by Pope Guilty at 10:21 AM on August 3, 2010 [43 favorites]


Count me in the "perfectly content" camp.
posted by yhbc at 10:21 AM on August 3, 2010


Forgive me for a naive question, but wouldn't it be easier to revoke his citizenship? Is that even possible?
posted by beepbeepboopboop at 10:22 AM on August 3, 2010


I believe there are several situations in which the government (i.e. police) have authority to shoot to kill. This is not all that unique, really.
posted by rocket88 at 10:23 AM on August 3, 2010


Frankly I'm fine with us shooting him.

I'm not.
posted by enn at 10:23 AM on August 3, 2010 [28 favorites]


Glenn Greenwald

Who?
posted by shakespeherian at 10:25 AM on August 3, 2010 [1 favorite]


First they came for...
posted by Djinh at 10:25 AM on August 3, 2010 [1 favorite]


Can they use this on Sarah Palin or Glenn Beck?
posted by anniecat at 10:27 AM on August 3, 2010 [5 favorites]


Who?

Bullshit.
posted by Pope Guilty at 10:28 AM on August 3, 2010 [2 favorites]


Count me as not being OK with killing this guy.

Trial by a jury of his peers is the American way. The only way. Where are all the strict constitutionalists when we need them?

(but considering so many people who are OK with killing him without any due process at all, it will be in the words of a judge I know in Alabama "A fair trial and a quick hanging.")
posted by three blind mice at 10:28 AM on August 3, 2010 [30 favorites]


U.S.-Born al Qaeda Cleric Says Kill Americans.
posted by ericb at 10:28 AM on August 3, 2010


There are two issues here. One, is it permissible to carry out targeted extrajudicial killings? Two, if the executive branch designates (by fiat) a person a "Global Terrorist", is it permissible for that label to deprive that person certain rights, such as the right to counsel?

I have big problems with two and am more or less resigned to being ok with one, given many, many caveats.
posted by norm at 10:28 AM on August 3, 2010 [4 favorites]


Sorry folks, it's not okay to murder someone because we're pretty gosh darn sure that he's a bad guy. We let the courts decide who's a badguy and go from there.

Officially sanctioned extra-judicial killings are going to turn the US into Pinochet Land very quickly.
posted by Azazel Fel at 10:29 AM on August 3, 2010 [76 favorites]


Frankly I'm fine with us shooting him.

But that's not orthogonal to allowing him legal representation, is it? And why does the Treasury Department get to decide who has legal rights? There may be a good historical reason, but that feels icky. The Obama Administration has been a straight sigh for me for most of the run. The only immediate improvement they could make is to add the snooker commentators from Mitchell & Webb to the end of every speech.

"And that's a bad miss."
posted by yerfatma at 10:30 AM on August 3, 2010 [10 favorites]


As much as I'm against killing people for whatever reason (as well as any other awful stuff), I'm not entirely sure why US citizenship should offer special protection for terrorists. If we're okay with targeted killings of foreign nationals for reason X, why would we be against targeted killings of US citizens for reason X? Again, assuming that you are okay with the former.
posted by shakespeherian at 10:30 AM on August 3, 2010 [4 favorites]


Don't worry. He won't be a citizen for long. The Republicans are already on the job. (Less clear is whether I will still be a citizen, since my mom was a German citizen. Guess it will depend on what the new standard for citizenship is after the next Republican congress issues legislative guidance "clarifying" the 14th amendment.)
posted by saulgoodman at 10:30 AM on August 3, 2010


I believe there are several situations in which the government (i.e. police) have authority to shoot to kill. This is not all that unique, really.

this is... what? what does "i.e. police" mean in this situation? as in, because police have the authorization to shoot to kill someone who is firing at them with intent to kill, that means it's not unique for our government to authorize the assassination of an american citizen without due process? it's right there in the linked article that this is unprecedented.

man, statements like that drive me up the wall.
posted by shmegegge at 10:30 AM on August 3, 2010 [2 favorites]


Anwar Al-Awlaki may be next Osama Bin Laden.
posted by ericb at 10:31 AM on August 3, 2010


Officially sanctioned extra-judicial killings are going to turn the US into Pinochet Land very quickly

Yeah, just like the Civil War did.
posted by saulgoodman at 10:31 AM on August 3, 2010 [2 favorites]


If we're okay with targeted killings of foreign nationals for reason X, why would we be against targeted killings of US citizens for reason X?

who is "we" in that statement, and what is "reason x?" I'm sincerely asking because I'm not okay with the targeted killings of foreign nationals as a rule, and "reason x" would have to be pretty god damn compelling, so context matters.
posted by shmegegge at 10:32 AM on August 3, 2010


* Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain.

No person shall be held to answer for any 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.

* Sixth Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
I'm no Constitutional scholar, but this seems pretty straightforward to me. Anwar, no matter how despicable his crimes, has a right to a trial and to legal counsel.
posted by muddgirl at 10:32 AM on August 3, 2010 [33 favorites]


I mean, it's almost like we know perfectly well that we're laying the groundwork for a brutal dictatorship to rise to power in the US but we won't do anything to stop it because ... eh ... whatevs.
posted by Azazel Fel at 10:33 AM on August 3, 2010 [14 favorites]


What a bizarre legal entanglement.

IMO, from a realistic standpoint, "it's war, zap the fucker" is valid, but definitely below "work with whatever local jurisdiction exists to arrest and try the person." But if there isn't a valid local jurisdiction, then proceed to "zap the fucker."

But to prohibit legal counsel ... dude, now we're in some seriously bizarre pointy-headed jurisprudence. The ACLU/CCR are already enjoined from committing illegal acts and acts of treason, so why do we need an extra Dollop of Bullshit on the Awful Choices Sundae?
posted by Cool Papa Bell at 10:34 AM on August 3, 2010 [8 favorites]


This makes it a criminal offense for the ACLU or CCR to provide you with legal representation.

They're working with his father to challende that provision: ACLU, CCR Sue to Protect Anwar al-Awlaki’s Right to a Lawyer.
posted by ericb at 10:35 AM on August 3, 2010


*challenge*
posted by ericb at 10:35 AM on August 3, 2010


that means it's not unique for our government to authorize the assassination of an american citizen without due process

It's not unique for the government to issue orders to the effect of apprehend by any means necessary up to and including shoot to kill.

You could parse each and every arrest warrant that authorizes the use of lethal force as an assassination order if you wanted to. But would it sell newspapers owned by business interests determined never again to have anyone in the White House even slightly to the left of Ayn Rand? Would it give credibility to the right wing's industry-deregulation championing (and occasionally Greenwald funding) Cato institute?

No. It probably wouldn't.
posted by saulgoodman at 10:35 AM on August 3, 2010


Everyone agrees that this guy is likely murderous scum. That is SO NOT THE POINT.

I would prefer my constitutional protections not be contingent on whether other folks think I'm a bad guy.

That the US Government takes the position that they can kill a citizen without due process of law is completely appalling.

That the US Government then prevents this position from even being challenged in court, by criminalizing the representation of the aforementioned citizen, is super double plus appalling.

That Greenwald is a hyperbole machine is pretty clear. Regardless, this is REALLY bad.
posted by leotrotsky at 10:36 AM on August 3, 2010 [32 favorites]


Yeah, just like the Civil War did.

Huh???
posted by Azazel Fel at 10:36 AM on August 3, 2010


No wonder they hate our freedoms.
posted by monospace at 10:36 AM on August 3, 2010 [6 favorites]


Just last weekend I heard some Nordic friends say the US is like a retarded testosterone poisoned teenager let loose with the biggest guns in the world.

What was that again about absolute power?

Which reminds me, have they revoked the rule on being able to seize all your financial assets on their say so if they think you're a funny looking furriner yet? I think we're forgetting a lot of what was made possible in the "bush years" under the Patriot Act, regardless of whether the person in question was born in the USA or naturalized or random traveler elsewhere.
posted by infini at 10:37 AM on August 3, 2010


who is "we" in that statement, and what is "reason x?" I'm sincerely asking because I'm not okay with the targeted killings of foreign nationals as a rule, and "reason x" would have to be pretty god damn compelling, so context matters.

All I mean is that a lot of the controversy surrounding Anwar al-Awlaki seems to be based, at least in part, on his citizenship, and I don't understand why that factors into the issue(s).
posted by shakespeherian at 10:38 AM on August 3, 2010


Yes, that's right. I'm sure this precendent, once allowed, will never be expanded or misused to strip anyone of their rights and put them on a hit list for, say, pissing off the wrong powerful people. Nope. Not here in the land of the free, nosir! We believe in our Constitution! Well, unless it gets in the way.
posted by emjaybee at 10:40 AM on August 3, 2010 [7 favorites]


The problem here isn't killing terrorists (because I'm c'mon that like super fun, right guys? With drones and such its like playing a real life video game. Those "collateral damage" villagers respawn right?). THE problem is the government seizing the right to unilaterally deprive people of the right to counsel/due process. MY problem is a Constitutional Law Professor who is now my President doing it. ALL OF OUR problem should be a sitting President promising the public to "restore the standards of due process and the core constitutional values that have made this country great even in the midst of war, even in dealing with terrorism" and then DOING THIS.

Literally, actually, no-way-around-it, he like super lied.

The Conservatives want to eliminate one part of the 14th Amendment and now the Democrats want to another? Man, that amendment can't get a break.
posted by Chipmazing at 10:40 AM on August 3, 2010 [15 favorites]


I'm not entirely sure why US citizenship should offer special protection for terrorists.

It isn't "special protection," it's ordinary protection - the kind of protection we are all supposed to have. You know - innocent until proven guilty, right to counsel, right to trial by a jury of your peers, all that?

When the government can just declare somebody a menace and go out and shoot them, all those rights are gone, for everyone. It is sad that those here who "have no problem" with death squads are so eager to give up my rights.
posted by Kirth Gerson at 10:41 AM on August 3, 2010 [14 favorites]


He's a terrorist. He's called that because his weapon is fear. Yes he is a murderer as well, but if we're cowards and let him screw up our system of justice as well, that is far greater harm than we need let him do.
posted by Zalzidrax at 10:42 AM on August 3, 2010 [3 favorites]


On the legal counsel issue: I agree with the critics 100 percent. Everyone should have an unfettered right to good legal representation; our legal system depends on it.

While the DOJ continued to push for this policy under Obama, the push began under Bush--and the courts ultimately decided the suspension of habeas corpus was kosher. And remember, Republicans have been pushing for this like crazy all along, starting with Liz Cheney's advertising and propaganda blitz regarding the so-called 'Al Qaeda 7,' the current DOJ attorneys who at one time represented inmates in Guantanamo Bay.

(What did you think that was about? It was to put political pressure on the administration not to exert influence over DOJ holdovers from the Bush years.)

It's insane to me, and probably to a lot of you, but the judiciary made this policy for now, with the help of the political flaks on the right.
posted by saulgoodman at 10:43 AM on August 3, 2010 [1 favorite]


Biker #2: [the whole gang holds Pee-wee hostage] I say we kill him!
Biker Gang: [shout] Yeah!
Biker #3: I say we hang him, then we kill him!
Biker Gang: [shout] Yeah!
Biker #4: I say we stomp him!
Biker Gang: [shout] Yeah!
Biker #4: Then we tattoo him!
Biker Gang: [shout] Yeah!
Biker #4: Then we hang him...!
Biker Gang: [shout] YEAH!
Biker #4: And then we kill him!
Biker Gang: [shout] YEAH!
Pee-wee: [tries to throw voice without moving lips] I say we let him go.
Biker Gang: [shout] NO!! !
posted by Astro Zombie at 10:44 AM on August 3, 2010 [4 favorites]


*want to eliminate another. Damn it. Sorry for the error.
posted by Chipmazing at 10:44 AM on August 3, 2010


/tiny violin for this guy.
posted by Artw at 10:45 AM on August 3, 2010


It isn't "special protection," it's ordinary protection - the kind of protection we are all supposed to have. You know - innocent until proven guilty, right to counsel, right to trial by a jury of your peers, all that?

Again, my point was that I don't understand why his citizenship is the issue. Due process does not apply only to US citizens.
posted by shakespeherian at 10:46 AM on August 3, 2010 [2 favorites]


When the government can just declare somebody a menace and go out and shoot them, all those rights are gone, for everyone.

Then didn't that boat sail long ago, since law enforcement officials have pretty much always enjoyed legal authority to shoot to kill when apprehending dangerous fugitives? Criminal fugitives shot when being apprehended are no less dead, and no less deprived of a right to trial before punishment.
posted by saulgoodman at 10:46 AM on August 3, 2010


this is... what? what does "i.e. police" mean in this situation?

It means that police, as agents of the government, already have authority to shoot and kill American citizens without due process if they believe they are an imminent threat to public safety. If you can't see a parallel between that fact and this case, I'm not sure what to say.
posted by rocket88 at 10:46 AM on August 3, 2010 [1 favorite]


Clearly what the US needs is death squads killing the undesirable.
posted by chunking express at 10:47 AM on August 3, 2010 [10 favorites]


Clearly what this thread needs is more hyperbole.
posted by shakespeherian at 10:48 AM on August 3, 2010 [7 favorites]


All I mean is that a lot of the controversy surrounding Anwar al-Awlaki seems to be based, at least in part, on his citizenship, and I don't understand why that factors into the issue(s).

Because Americans aren't willing to accept human rights means all humans so we hope American exceptionalism based on citizenship will protect us.

(Of course, Melissa Roxas was a pretty good example that citizenship doesn't mean a terrible lot depending on political expediency.)
posted by yeloson at 10:49 AM on August 3, 2010 [3 favorites]


If rights are only allowed for things we like, then they're not exactly "rights", are they?
posted by Legomancer at 10:50 AM on August 3, 2010 [14 favorites]


I find it so very interesting that both news/opinion links refer to the fact that Bush didn't authorise a targeted killing.

Over and beyond the obvious problems with such an order and the "Specially Designated Global Terrorist" moniker and its repercussions, is it really necessary for the right to desperately paint Obama as worse than Bush?

Seems to me that the main drive here is not out of concern for the civil liberties of the affected party, but rather some stupid effort to tar and feather Obama for not being as kind and gentle as his predecessor. Pretty sick, really.

Of course, please note: Executive Order 13224, which created the "Specially Designated Global Terrorist" designation and its sanctions, was signed by George W. Bush. Consulting the Treasury Department's list of SDGTs, hundreds of individuals and organizations were classified as SDGT before Obama took office.

So that spin about Obama being worse than Bush because of this? Yeah, you can shove it.
posted by splice at 10:51 AM on August 3, 2010 [6 favorites]


Then didn't that boat sail long ago, since law enforcement officials have pretty much always enjoyed legal authority to shoot to kill when apprehending dangerous fugitives?

No, it did not, because they do not, which is why erstwhile BART cop Mehserle is in jail now. Conflating immediate self-defense with shooting fugitives on sight, preemptively, with advance planning, is a lame attempt at muddying the waters; the difference between the two is plain to anyone who isn't looking for an excuse for the administration's actions.
posted by enn at 10:53 AM on August 3, 2010 [6 favorites]


What kind of an American would think the Government has the power to decide whether citizens may or may not be represented by lawyers?

*waves arm wildly*
Oooh ooh oooh I know! Pick me! I knoooow!

A fascist.
posted by DU at 10:53 AM on August 3, 2010 [24 favorites]


Forgive me for a naive question, but wouldn't it be easier to revoke his citizenship? Is that even possible?

I am pretty sure they can't legally revoke US citizenship of a native-born American. It'd be different if he was a naturalized citizen from another country.
posted by lullaby at 10:53 AM on August 3, 2010 [1 favorite]


Anwar, no matter how despicable his crimes, has a right to a trial and to legal counsel.

It's just as simple as that! It really is. That's not to say that, if there's a strike on a compound where he is hiding, soldiers should expose themselves to unnecessary danger to apprehend rather than kill him (just think that through if you don't know what I mean) but yeah, even the guys at Nuremberg had lawyers.
posted by Mister_A at 10:54 AM on August 3, 2010 [6 favorites]


Clearly what this thread needs is more hyperbole.

How much nuance do we need here?

Do people really need to debate the finer points of why letting the police (or CIA or whomever else) murder people without due process is a bad thing?
posted by chunking express at 10:54 AM on August 3, 2010 [13 favorites]


I'm not entirely sure why US citizenship should offer special protection for terrorists.

And we know this how?

No, seriously. Why do we know he's a terrorist? Has he been convicted of terrorism? I know it's "obvious." But guess what, we don't have a legal system that says that we're entitled to a fair and speedy trial by a jury except when we think it's obvious the guy did it. If it's that easy to prove he's a terrorist, go and prove it in a court of law. We tried Timothy McVeigh, in a court of law, with representation, and convicted him. We tried the Unabomber, in a court of law, with representation, and convicted him. This should be no different.

Once again I'm reminded why I'm a member of the ACLU. Because even people who are probably evil are entitled to the rights enshrined in the Constitution.
posted by Tomorrowful at 10:54 AM on August 3, 2010 [36 favorites]


Due process does not apply only to US citizens.
...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That's why his citizenship is an issue - he isn't within US jurisdiction. None of the non-US-citizens in Yemen have our Constitutional protections. He does.
posted by Kirth Gerson at 10:55 AM on August 3, 2010 [3 favorites]


I would never say Obama is worse than Bush (I mean, not yet, hopefully. Barack, don't make me a liar...).

But Splice, isn't it a pretty fucked up status quo when its ok to lie to the public and do blatantly unconstitutional things because the last guy did more of it? That's a pretty terrible standard for "good governance".
posted by Chipmazing at 10:55 AM on August 3, 2010 [3 favorites]


It means that police, as agents of the government, already have authority to shoot and kill American citizens without due process if they believe they are an imminent threat to public safety

Not an American and not a lawyer, but doesn't that authority only extend to killing citizens who pose a clear, imminent and physical threat to others?

There's a step from "it's okay for police to shoot the guy on the clock tower with a high-powered rifle who's shooting at people on the sidewalk," and "we need to kill this man because he has dangerous ideas and is very persuasive" that makes me really uncomfortable.

It's weird, but Charles Manson is the first analogue that springs to my mind.
posted by Shepherd at 10:55 AM on August 3, 2010 [3 favorites]


First they came for the radical clerics, etc. I can't believe anyone is ok with this! Has everyone lost their goddamn minds?!
posted by fuq at 10:55 AM on August 3, 2010 [11 favorites]


So it's not a lynching when the President does it?

In Hell, Nixon cackles.
posted by Pope Guilty at 10:56 AM on August 3, 2010 [5 favorites]


This is despicable... After all the demagoguery about "...then the terrists will have won!" and now we find out, they already HAVE.

Then again, perhaps they feel like they have no choice, considering that in ten years, they've never managed to catch Bin Laden either, the dumbasses.
posted by OneMonkeysUncle at 10:56 AM on August 3, 2010


Jesus Christ, "Obama isn't worse than Bush guys he's only JUST AS BAD" is really not a compelling defense.
posted by zjacreman at 10:57 AM on August 3, 2010 [7 favorites]


It means that police, as agents of the government, already have authority to shoot and kill American citizens without due process if they believe they are an imminent threat to public safety.

Except this is not actually true. You're using clever weasel words that sound right (threats to public safety) but actually don't describe the extremely narrow justifications that police are allowed when it comes to lethal force. As if the police could just go out and shoot a gang leader who is probably planning a murder of his own!
posted by Azazel Fel at 10:58 AM on August 3, 2010 [6 favorites]


I guess what bothers me is that so many anti-hit comments suggest what we are customarily supposed to, meant to, traditionally do with issues such as this--that is, in our nation we simply do not do things like this. Reminds me of my kids saying "It isn't fair."
Here, a quick look at what does get done
http://rawstory.com/rs/2010/0803/germany-gave-assassination-list-secret-unit/

http://www.truth-out.org/

now that sort of thing goes on under Bush or under Omama and will continue to go on when our leaders decide we are at war with people who are out to destroy us. It may not be fair to trust their judgement, but so far I have seen no instances where they are grabbing for execution citizens who simply sit about posting or commenting to this or other sites; or who are academics considered radical in outlook (that is for FBI to record).
As Walter Cronkite would say: and that's the way it is.
posted by Postroad at 10:58 AM on August 3, 2010


Greenwald: "It further argues what ought to be a completely uncontroversial point: that even if Congress had vested Treasury with this authority, it is blatantly unconstitutional to deny American citizens the right to have a lawyer, and to deny American lawyers the right to represent clients, without first obtaining a permission slip from Executive Branch officials (the Complaint is here)."

This is such an obvious point, I find it baffling that some people either don't seem to get it or just don't care. WTF.
posted by homunculus at 11:00 AM on August 3, 2010 [5 favorites]


This is despicable... After all the demagoguery about "...then the terrists will have won!" and now we find out, they already HAVE.

We've been assassinating people we don't like for ages. Now we just have a fancy term to "justify" it. Doesn't make it any better or any worse, in my book.
posted by muddgirl at 11:00 AM on August 3, 2010


ACLU, CCR Sue to Protect Anwar al-Awlaki’s Right to a Lawyer.

I know perfectly well that this refers to the Center for Constitutional Rights, yet I cannot help but imagine that John Fogerty is somehow involved nevertheless. Oh acronyms. ILU.


In a case like this, where on the one hand, you have a probably vile and horrible human being vs setting a clearly horrible precedent, I am all for not fucking with people's constitutional rights. I don't get why the bottom line isn't always "let's try not to potentially fuck things up for everyone else, for all time."
posted by elizardbits at 11:00 AM on August 3, 2010 [4 favorites]


Hrrm, seems like most people are OK with the idea of a police officer shooting and killing a person attempting to kill others without due process. Consider an event like a school massacre or gang fight. It seems the basic idea is that the person poses an immediate and direct threat to others that can only be stopped by lethal action. No one seemed to complain when Nidal Malik Hasan was shot by police while killing people at Ft. Hood.

If Anwar Al-Awlaki poses a immediate and direct threat to others and cannot be brought to court, what other actions are available?

If he was arrested, he absolutely would have of his full rights as a citizen to due process, but this situation is not that simple.

How do those opposed to this think he should be handled? Do you think he's respond to a summons or will an extradition request work well?

Please be specific...
posted by Argyle at 11:01 AM on August 3, 2010


And by "now", I mean "in like 2005 when GWB signed the executive order."
posted by muddgirl at 11:01 AM on August 3, 2010


Thanks, guys. Here I was feeling like I was too conservative for MeFi, and the I happen into a thread where we have people saying it's OK for the US government to execute its citizens without a trial, and make it a crime to try and provide them with a lawyer.

I respectfully disagree. I want a nation of laws and not a nation of "daddy said so." Can I have my "damn liberal" button back now, please?
posted by tyllwin at 11:01 AM on August 3, 2010 [14 favorites]


imminent threat to public safety

The bank robber with a gun is an imminent threat. The drunk driver who is running people over is an imminent threat. The drunk holding a knife to someone's throat is an imminent threat.

By your definition, anyone in Operation Rescue who communicated with Scott Roeder is an imminent threat who does not deserve legal counsel and should be shot on sight. I hate OR and even I think that's crazy. And unconstitutional.
posted by rtha at 11:02 AM on August 3, 2010 [3 favorites]


I think I will do what George Carlin advised doing anytime Americans start talking about people's "rights":

*Goes to wikipedia*
*Enters "Japanese Americans 1942" into search window, hits "Enter"*

Ah, yes.

The reality is that, as the man said, there are no such things as rights. There are a defined set of privileges, which the government can take away when it deems it expedient.
posted by dry white toast at 11:02 AM on August 3, 2010 [3 favorites]


It's weird, but Charles Manson is the first analogue that springs to my mind.

Funny, my first thought was of Glenn Beck.
posted by elizardbits at 11:03 AM on August 3, 2010 [1 favorite]


How much nuance do we need here?

Do people really need to debate the finer points of why letting the police (or CIA or whomever else) murder people without due process is a bad thing?


I would say yes. Maybe I've missed it, but I haven't seen anyone around here protest loudly that Osama bin Ladin shouldn't be hunted down and killed rather than given a trial. Again, maybe I missed it. But if there's a difference between Osama bin Ladin and Anwar Al-Awlaki, I think it should be articulated and discussed rather than saying the US is on the path to 'death squads killing the undesirable.'
posted by shakespeherian at 11:03 AM on August 3, 2010 [1 favorite]


Conflating immediate self-defense with shooting fugitives on sight, preemptively, with advance planning, is a lame attempt at muddying the waters; the difference between the two is plain to anyone who isn't looking for an excuse for the administration's actions.

No, it's not, because there are also apprehend by any means necessary type warrants that don't require killing during apprehension of a fugitive to be in self-defense in those cases when the fugitive can be considered to pose a serious and immediate threat to public safety.

You need to be less gullible.
posted by saulgoodman at 11:04 AM on August 3, 2010


If Anwar Al-Awlaki poses a immediate and direct threat to others and cannot be brought to court, what other actions are available?

Police officers can't just shoot any suspect they want to. If, in the process of detaining Anwar al-Awlaki, he poses a direct physical threat to anyone, then take him out. But I can't believe they can find him to shoot him but not to detain him.
posted by muddgirl at 11:04 AM on August 3, 2010 [1 favorite]


I'm no Constitutional scholar, but this seems pretty straightforward to me.

“As Chief Justice Marshall said, so long ago, it is a Constitution we are interpreting…” (i.e. not any single amendment).

The problem in this case isn't so much Anwar al-Awlaki specifically, really. The "not able to muster sympathy" responses are indicative of the general consensus that it seems pretty darn credible to say he is a genuine threat to national security. And practically a poster child for capital-T Islamic Terrorism.

The problem is the tension between these facts and the principles of due process, which understandably is something people feel strongly about, as we tend to about our bill-of-rights-delineated civil rights in general. OK, I get scared of the government too, so I can see where that's coming from. But we're also talking about a person who is operating as a threat from tribal Yemen. What does due process look like here? We strictly limit ourselves to extradition negotiations? We send in the FBI with capture but don't kill orders?

This is where it comes back to Souter's speech: there exist and will always exist tension between even good principles. A good constitution can only balance that at best, not eliminate them. In this case it looks to me like genuine tension between civil rights and defense powers/responsibilities of the executive.

I'd be more comfortable with some kind of review happening. I think the lawsuit will get us a good meta-review of whether the administration has a sound legal justification for their policy, and that's a good thing. I think it'd be even better if a codified process -- probably including judicial review -- were required in order to arrive at the conclusion that someone is enough of a national security threat to justify targeting them with the full force of the entire range of defense apparatus at hand. And I think making it a criminal offense to provide legal representation is BS.

All those issues need to be grappled with at length and dealt with intelligently with so that this particular case doesn't lay the groundwork for serious abuses.

But this particular case is probably not an abuse.
posted by weston at 11:04 AM on August 3, 2010 [2 favorites]


Personally, I think we should retain Sarah Palin to do the shooting--it can't be that different than shooting wolves from a plane. Perhaps it could be shown on the Glen Beck show. Then Keith Olbermann could express outrage at the constitutional travesty while Rachel Maddow calls for a reasoned discussion after bsnagging an interview with Kagan to discuss the judicial implications. Really, it seems OK to me and to worry about this being a precedent for a government run by assassins makes as much sense as a Tea Partier(yer) worrying about having to give up all their guns and second homes to a new "socialized" dictatorship. Not going to happen. Besides--it seems much more logical for the US to order the assassination of a US citizen rather than a foreign national. Keeps it in house.
posted by rmhsinc at 11:05 AM on August 3, 2010


"You're a 39 year old American calling for Muslims, especially those in America, to put their religious beliefs ahead of their loyalty to the United States, urging jihad. You met with two of the 9/11 hijackers, but later denied knowing them, despite email records. You also were in contact with those involved with two other terrorist attacks, urging them to jihad.

You leave the US to Yemen, and start being bolder in your preaching. You are wanted by Interpol, and could, in fact, turn yourself over to assist investigators, but basically refuse to do so. Instead, you actually start publicly calling for the killing of US soldiers and civilians.

...and somehow, surprisingly, the US government views you as an enemy and wants you, dead or alive.
posted by markkraft at 11:05 AM on August 3, 2010 [1 favorite]


I haven't seen anyone around here protest loudly that Osama bin Ladin shouldn't be hunted down and killed rather than given a trial.

I'm guessing you don't have to look too hard to find people who disagree.

Even the fucking Nazis got trials.
posted by chunking express at 11:06 AM on August 3, 2010 [20 favorites]


...if there's a difference between Osama bin Ladin and Anwar Al-Awlaki, I think it should be articulated and discussed...

See above, RE: citizenship.
posted by Kirth Gerson at 11:07 AM on August 3, 2010 [3 favorites]


I would be more than happy to offer Mr. al-Awlaki what is his by right-of-birth--a fair trial with all the trimmings. All he has to do is come on home and turn himself in at a local police station! Then we can get the ACLU and the CCR on the case and I'm sure he'll be just fine!
posted by MarshallPoe at 11:08 AM on August 3, 2010


Not sure what the justification is for denying legal counsel to a citizen, even to this guy. Isn't this section of the Constitution pretty clear? He's definitely a traitor, but still requires convicting:

Article III, Section 3:
1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
posted by Johnny Wallflower at 11:09 AM on August 3, 2010 [1 favorite]


My soul hurts.
posted by blue_beetle at 11:12 AM on August 3, 2010 [2 favorites]


Civil Rights are intended to apply to everyone equally. This includes people with unpopular viewpoints.

Just because we want to kill murderous scum sucking douchebags, doesn't mean we should.

Just because we claim the legal right to do so, doesn't mean we have that right.

Yes, it's frustrating. It's hard to be patient.

What people need to resolve is that we need to protect our legal system, and the rights of citizens and human beings, first. That's the highest priority. And not by making torture and murder legal. Torture and murder are fabulous tools for implementing American policies, both foreign and domestic, but we need to ensure that they are not legal tools. The people who torture and murder need to assume responsibility for their methods by assuming the risk for them.

If one believes that one needs to torture or murder because it's for the greater good of America, then one needs to risk being put away for a very long time for doing "the right thing".

As an aside: I am always baffled when apprehended religious-fundamentalist-terrorists plead "not guilty" in court. Shouldn't one be proud to have gone on jihad, killed that abortion doctor? Done God's work, killing people, blowing shit up, or trying to? Just plead guilty already. No shame in doing what you believe in, right? Unless of course, one is really "not guilty", well then, plead the truth....
posted by Xoebe at 11:15 AM on August 3, 2010


...and somehow, surprisingly, the US government views you as an enemy and wants you, dead or alive.

I didn't see alive in the options, did you?
posted by mikelieman at 11:16 AM on August 3, 2010 [4 favorites]


"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." - H. L. Mencken
posted by Pater Aletheias at 11:17 AM on August 3, 2010 [29 favorites]


Even the fucking Nazis got trials.

After they surrendered. Before that, the government was heavily involved in trying to kill them. Was that wrong of them?
posted by rocket88 at 11:19 AM on August 3, 2010 [5 favorites]


(Interpol link, btw.)

Please note, there are other potentially dangerous people out there who are linked to violent acts, and who can be killed on site. Anwar al-Awlaki may not be your typical criminal, but the idea that he should be considered untouchable, even as he openly calls for people to kill Americans is pretty ludicrous.
posted by markkraft at 11:19 AM on August 3, 2010


But I can't believe they can find him to shoot him but not to detain him.

Why detain when a UAV can just guide a missile.
posted by Max Power at 11:23 AM on August 3, 2010


"I didn't see alive in the options, did you?"

Oh, please. He could turn himself over to any number of places in Yemen, many of which would absolutely guarantee his safety. The fact remains that Interpol -- a very large organization indeed, representing many countries -- does indeed see Awlaki as a serious terrorist threat.

The best way for Awlaki to protect his continued existence is to stop calling for the killing of Americans, to stop his involvement with terrorists, and to stop evading justice. He can do it today, frankly.
posted by markkraft at 11:24 AM on August 3, 2010 [1 favorite]


Hrrm, seems like most people are OK with the idea of a police officer shooting and killing a person attempting to kill others without due process.

I'm not saying I'm okay with it, I'm saying it's been this way in law for a long time. Bonnie and Clyde, famously, were basically ambushed and slaughtered by Federal marshals and law enforcement officials without a trial, and few people batted an eyebrow. There are many, many other examples.

And this specific order provides for those "targeted for assassination" to turn themselves in voluntarily to authorities. Now, what kind of assassination order gives you the leeway to turn yourself in to avoid being captured by force or killed? None, because this isn't an assassination order except through equivocation.

Again, I won't defend the denial of counsel to accused terrorists. That's crap policy and should be addressed immediately by the legislature. But the kerfuffle over the capture or kill order being "an unprecedented assassination order on an American citizen" has been absurdly overblown... And what do you know? The original sources who characterized the order in those terms included former officials who served under George W. Bush, as when NY Times reported:
It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.
posted by saulgoodman at 11:25 AM on August 3, 2010 [1 favorite]


Was that wrong of them?

It's time to invade Yemen to save American lives.
posted by chunking express at 11:25 AM on August 3, 2010 [1 favorite]


Assassination is an unattractive word. Admittedly, given the false choice between sending ninjas to blow darts full of blowfish toxin into Saddam's neck in the dead of night and, I don't know, reducing a country to rubble to "get" one guy, I would reluctantly select the former. I think it is a failure of negotiations that it came to that.

This is what was so insidious about the "enemy combatant" label. As a response to "umm so there is this guy and he belongs to this country that we aren't at war with, but it looks like he's making a bomb, what do we do?" it suggested that the government can simply apply this label and, suddenly, a whole bunch of inconvenient rules vanish. Not a citizen, but also not a prisoner of war. Waterboards away!

Politicians are at least nominally people, and people are loath to put down a tool once they've picked it up. Reclassification is a very nice one. Fits in the hand, has a good heft to it.
posted by adipocere at 11:26 AM on August 3, 2010


As long as this is a Wanted Dead or Alive kind of thing, I'm okay with the shoot-to-kill order.

I'm not okay with him being denied access to an attorney and a trial. What would happen if he tried to turn himself into authorities, would he just be shot on sight?
posted by empath at 11:27 AM on August 3, 2010 [2 favorites]


but the idea that he should be considered untouchable, even as he openly calls for people to kill Americans is pretty ludicrous.

Oh come on, build that strawman a little larger. No one is saying he is "untouchable." Absolutely no one.

Why detain when a UAV can just guide a missile.

No need to give him special status to blow him up with a missile - we do it every day. Perhaps not in Yemen, but if this guy really is that dangerous, let's just invade them the way we've invaded every other inconvenient country.
posted by muddgirl at 11:29 AM on August 3, 2010 [2 favorites]


"I didn't see alive in the options, did you?"

It's a capture or kill authorization. Not only could he turn himself in at anytime, the order itself doesn't strictly require that he be killed. It's a capture or kill order. Not a "targeted killing" order, though it's understandable that the distinction is lost on casually informed observers, since that's the way the press has been running with it since day one.
posted by saulgoodman at 11:29 AM on August 3, 2010 [3 favorites]


Yemen, btw, is one of the few countries in this world that wouldn't forcably extradite this guy... but that doesn't change the fact that the US, Interpol countries, etc. don't want him extradited.

If I were al-Awlaki and actually wanted to guarantee my safety, I would find some place like the Swiss embassy, and ask to be extradited... and if they don't approve, start camping outside the gates.

I mean, what are they going to do... drop a bomb on him there?!
posted by markkraft at 11:29 AM on August 3, 2010


Joe Beese: This makes it a criminal offense for the ACLU or CCR to provide you with legal representation.

I don't care who this guy is or what he did, Obama ignoring due process is absolutely no different than Bush II ignoring due process. It was wrong then, it's just as wrong now, and and if you think extra judicial killings are a good way to reduce terrorism and to smooth tensions with groups of people who are hostile to the USA, then it must be opposite day where you live.
posted by paisley henosis at 11:32 AM on August 3, 2010 [5 favorites]


My soul hurts.

Hey, so does mine! Want to know why?

Because for eight years on the Internet, I was following the exploits of Dubya as he basically wrecked the entire shebang of the National Security State. Hung on every word, every evil deed, every extra-constitutional terrible act that made me wince in recognition of how much this country I lived in was not the COuntry that was Advertised in Civics Class. Felt it, you know? Really bled.

Oh, literally? Of course not. I just followed it through blogs, like all of you did. Didn't actually do anything about it. Besides, that wasn't what was being asked. All that was being asked is that I care, deeply, about the terrible things Dubya was doing to the country and the world. All that was being asked is that I pay attention. I guess if someone had asked me to take action, I might have, but most people's version of action became contributing money to individual Democratic candidates via Kos, so I'm not really sure. I kinda had this weird feeling that the Democratic Party was fine with Dubya and the Repubs being the heavies in consumer-fascist trailblazing, and Dubya himself seemed to have no problem at all being a bagman for terrible things that violated the Bill of Rights.

Of course, I also remembered all the reading I had done in years previous about the CIA and Allende and the Shah and JFK and the Bay of Pigs and the Spanish-American War and Iran-Contra and every other fuckton of skullduggery the U.S. committed in blatant defiance of the laws and the spirit of the land, so to suddenly see this happen out loud, ineptly and hamfisted as it may be, really threw me for a loop.

But then the details kept coming, and every day there was another terrible outrage perpetrated by the Administration, and people kept asking me to care about them all, equally, all these death-by-a-thousand-cuts infractions against What America Is Supposed To Be, and I tried to keep up, I really did! Tried my darndest, with Valerie Plame and the whole generals thing and boy, Katrina, phoo! It's hard, though, ya know? It's hard to be told literally every day what offenses are happening that Shouldn't Be Happening. And I mean that's not even getting into domestic issues of gay marriage, abortion, the usual rigamarole.

And so in this big ol' football game called politics, where there are only two teams (sorry, libertarians -- don't worry, you have the luxury of not having to have your ideas tested in reality, ever, so relax!) to root for, boy oh boy my vote was less about Obama and more about RELIEF. PHEW. I can RELAX now! HOPE and CHANGE are on the case.

It's business as usual, of course. New boss, old boss, you know, it's disheartening. Surely is.

So you bring me a MeFi post titled "Saving Anwar" and you're telling me how awful it is that a U.S. citizen who is actively working to destroy the country is being targeted for assassination by Obama and yeah, sure, terrible, and here's the thing, I know it violates the Constitution, and I can't. I can't care. The principle? of course it's important, but...I have nothing left. I'm spent. This is terrible, and awful, and will be filed away in the File of Awful Things That the U.S. Government Does All The Time, In Real-Time For the Last Decade On The Web.

So you'll jump on this and get all self-righteous and you'll call me horrible and deride me and berate me and you'll feel like you've done something for Liberty and the Constitution. The Little Heinleins will breathlessly declaim how they're willing to fight fascism from their keyboards; the liberals will shrug and rub against their investment in Obama; the conservatives will take this opportunity to jump on the liberals for hypocrisy. And then the next day, someone will post something else horrible and we'll go around and do this little dance again.

And that's that.

It's not apathy; it's fatigue.
posted by solistrato at 11:34 AM on August 3, 2010 [15 favorites]


Frankly I'm fine with us shooting him.

Me too. I'm not fine with the government declaring who is entitled to legal representation and making it a crime to provide legal advice to them. The defendants had access to counsel at fucking Nuremberg.
posted by spaltavian at 11:35 AM on August 3, 2010 [2 favorites]


For the record, though, "Saving Anwar" is really fucking obnoxious.
posted by spaltavian at 11:36 AM on August 3, 2010 [1 favorite]


Can we lynch him? We are really good at lynching. Can we call him "Specially Designated Global Terrorist To Be Lynched?"
posted by Back to you, Jim. at 11:36 AM on August 3, 2010


"But that's not orthogonal to allowing him legal representation, is it?"

I don't see any value in overthinking this particular case. I understand completely what you are asking and implying. While such a discussion certainly has value, I see more value in just shooting him, as soon as possible.

So yes, I think it's fine for shooting him to be orthogonal to allowing him legal representation.
posted by y6y6y6 at 11:36 AM on August 3, 2010


I don't see any value in overthinking this particular case.

Beans, however ...
posted by Back to you, Jim. at 11:38 AM on August 3, 2010 [1 favorite]


I haven't seen anyone around here protest loudly that Osama bin Ladin shouldn't be hunted down and killed rather than given a trial.

Hi. I think that if at all possible, Osama bin Laden shouldn't be hunted down and killed rather than given a trial.

But even if I didn't, Anwar al-Awlaki being a US Citizen does have consequences. It doesn't make him more deserving of rights than Osama bin Laden; it doesn't make him, as a human being, worth more. But it does make the legal consequences of his deprivation of counsel and assassination different.
posted by Kutsuwamushi at 11:39 AM on August 3, 2010 [2 favorites]


The defendants had access to counsel at fucking Nuremberg.

Man, not to imply anything about al-Awlaki of course, but y'know, some day we're going to actually find someone worse than the Nazis and then we'll just be standing there with armloads of facile comparisons.
posted by shakespeherian at 11:40 AM on August 3, 2010 [3 favorites]


I don't think this has anything to do with people's opinions of al-Awlaki. It has to do with due process and constitutional rights. Everyone deserves representation and a fair trial. You don't make exceptions just because you find someone's crime distasteful. That's a far cry from what out legal system is supposed to do. The challenge of defending constitutional rights is not when it's easy to do, but when it's very difficult to muster any sympathy for the defendant - that's when it's most important to stick by our principles and our system of justice. If one distasteful person is denied rights, that's bad for everyone, because there aren't supposed to be exceptions, and it means were all subject to interpretation instead of being able to rely on our justice system to be fair to everyone. In the right light a lot of people could look pretty distasteful and offensive.
posted by krinklyfig at 11:40 AM on August 3, 2010 [2 favorites]


Biker #2: [the whole gang holds Pee-wee hostage] I say we kill him!

Tequila!
posted by ericb at 11:41 AM on August 3, 2010


What would happen if he tried to turn himself into authorities, would he just be shot on sight?

He's been encouraged to turn himself in since the very beginning. In fact, there was speculation initially in some quarters that the whole point of putting him on the list may have been to scare him into turning himself in more quickly, in order to make progress in Yemen, where al-Qaeda has had some degree of success regrouping.
posted by saulgoodman at 11:42 AM on August 3, 2010


"How do those opposed to this think he should be handled? Do you think he's respond to a summons or will an extradition request work well?

Please be specific..."


personally, i think at some point you have to be able try the guy in absentia. but he should be represented by counsel. you send him the summons, and you make an extradition request to whatever country he's hiding in. when he doesn't respond, and the country denies extradition, you try him in absentia where he would be represented either by court appointed counsel or some other group he's asked to defend him.

when he's found guilty, after due process, you authorize "zapping" the guy if apprehending him is impossible due to location. if it is at all possible to apprehend him you do that but i think living in Yemen should not be a "get out of jail free" card for someone convicted after a legal trial with representation, especially if there is evidence that they are continuing to actively plan and carry out plots.

the problem with skipping the legal process entirely and relying on executive orders in these cases, other than the constitutional concerns, is that you end up with Guantanamo type situations where you're holding people you don't really have the evidence to try, or you're going to be making directed killings on people who you aren't absolutely [legally] sure are the enemy.

however, i'm not sure that the legal process in cases like this necessarily has to involve the defendant actually sitting in a courtroom. in most cases yes, that should be required, but when the suspect is hiding in a country that is actively uncooperative when it comes to extradition and law enforcement and is actively planning murderous attacks from afar, i'm just not sure that's possible.

still, i don't think the government shouldn't be *assassinating* people without exhausting all other means, and being as sure as possible that there are legal reasons to go ahead and do so instead of a merely political ones.

unless you actually go ahead and declare war on Yemen, in which case all bets are off.
posted by striatic at 11:43 AM on August 3, 2010 [12 favorites]


We could promise him a trial, lawyers etc if he in turn came back and surrendered so that he could prove that we are wrong about him and he will be found as harmless as a butterfly.
posted by Postroad at 11:45 AM on August 3, 2010


"we need to kill this man because he has dangerous ideas and is very persuasive"


While we're knocking off people meeting this description, is there any way I could possibly vote Glen Beck and Fred Phelps onto this death list?
posted by From the Fortress at 11:47 AM on August 3, 2010 [6 favorites]


facile comparisons

I don't see the comparison as facile. The difference is that the Nazi state surrendered and this person has not. Which is why I'm okay with shooting him. The apt comparison is that we didn't make it a crime to defend or provide legal guidance to any of them; if fact, we paid people to do just that. If an ACLU lawyer advised this man to lay down arms, surrender to coalition forces and provide intelligence in some sort of plea, that lawyer would be at risk of arrest. I'm not comparing them on an Evil'ometer, I comparing the respect for the rule of law and the basic principle of justice.
posted by spaltavian at 11:47 AM on August 3, 2010


This guy's an asshole. If the American judicial system isn't good enough for him, then it sure as hell isn't good enough for me, and I see no reason why I should consider myself bound by it henceforward.
posted by Naberius at 11:48 AM on August 3, 2010


It's not apathy; it's fatigue.

You should have taken a break every now and then.
posted by grubi at 11:51 AM on August 3, 2010


But if there's a difference between Osama bin Ladin and Anwar Al-Awlaki, I think it should be articulated and discussed

Shouldn't the onus be on the pro-death-squad side to explain the necessity of death squads for this individual?

It seems logically and morally lazy to invoke bin Laden's name (or the name of any bogeyman, for that matter) as an excuse to eliminate the burden of due process.

The onus, in my opinion, is on the people who argue for extra-legal or illegal measures, to defend this with more than a lazy, emotionally manipulative equivalence.

And I find it frightning for all our rights that so many here are so willing to inadvertent relinquish their own rights, by depriving this man of his.
posted by Blazecock Pileon at 11:51 AM on August 3, 2010 [6 favorites]


A big problem for me is I absolutely agree that the idea is to capture and try him, but in order to do so I suspect there would be quite a few extra casualties. So, the options are what? Ignore him, invade Yemen, wishfully hope for a moment of opportunity to capture, assassinate, or.... ? It looks like trial in absentia is not really an option in the US.

I'll freely admit I don't like the idea of killing (of anyone really) by governments without trial. However, I don't see how Anwar can actually be brought to trial short of him turning himself in, which I doubt will happen.

Historically the trend of suspension of habeas corpus/due process in the US has actually gotten more and more selective over time. During the Civil War Lincoln applied an awfully broad brush, multiple times actually, including:
Second: That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.
.

And: Secretary of War Edwin Stanton, at Lincoln's behest, issued sweeping orders Aug. 1862 suspending habeas corpus nationwide (in reference to a newly instituted draft)

During WWII the Japanese internment caps held ~110,000.

Both cases surely are (at the least) blemishes on the national character, but what I'm getting at is that while such suspensions are troublesome they seem at least to be getting less broad based, which I think is stepping in the right direction. I don't think automatically applying the slippery slope analogy is de facto accurate
posted by edgeways at 11:54 AM on August 3, 2010


If we don't stop this, there's a risk that eventually elements of the government will try to put citizens INSIDE THE USA on this "no legal representation for you" list.
posted by wuwei at 12:00 PM on August 3, 2010 [1 favorite]


The onus, in my opinion, is on the people who argue for extra-legal or illegal measures, to defend this with more than a lazy, emotionally manipulative equivalence.

I'm not arguing for extra-legal measures, I'm just attempting to figure out how to read this thread as a discussion rather than a hyperbole match. Part of that process involves figuring out where people are coming from and how they're defining their terms, and why they bring certain facts to the table if I can't make sense of their reasoning. I am asking honest questions and not attempting to be lazy or emotionally manipulative.

On that note, I'm not great at parsing legal language, but I can't seem to figure out how the linked code makes it a criminal offense to provide legal counsel for a 'Specially Designated Global Terrorist.' The beginning seems to read, 'The provision of the following legal services... is authorized.' I am sure that I am reading it incorrectly, but could anyone help me?
posted by shakespeherian at 12:00 PM on August 3, 2010 [2 favorites]


We seem to do a lot better against terrorists who are brought to trial than the ones gunned down in the street like dogs. There's a gravitas to it, the formal and inevitable, inescapable response to a foolish and evil action. It's civilization against barbarism, and the good guys win.

The WTC bombers, the gunman who shot up CIA headquarters, McVeigh and Nichols, The Olympic Park bomber - found, tried, sentenced - their networks dismantled, their support dissolved, their fangs and claws pulled, and the whole world watched and applauded as we did it.

Clinton bombing the factory in the Sudan? It was ineffective, and a PR fiasco at home and abroad. It emboldened Bin Laden and solidified Al Quaeda.

The entire Afghanistan War? We'll be a decade and a trillion dollars in the hole, and what have we to show for it? Rising extremism in Pakistan and Yemen, and home-grown radicals preaching war against their own nation.

Heckuva job, there.
posted by Slap*Happy at 12:03 PM on August 3, 2010 [5 favorites]


I've got a beef here about the way that this post was framed. Maybe this isn't editorializing, but it's very "pick and choose your details for the maximum amount of outrage with the least amount of information."

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,

In your framing of the post as "ZOMG! CIVIL LIBERTIES!" you distinctly left out this part.

He has been the focus of intense scrutiny since he was linked to Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood, Tex., in November, and then to Umar Farouk Abdulmutallab, the Nigerian man charged with trying to blow up a Detroit-bound airliner on Dec. 25.

And this.

Not to say that the legalities of the situation aren't troublesome, but leaving this shit out smacks of "innocent victim" which is absolutely not what is going on here. The guy doesn't need to be "SAVED." What he needs is due process in court, if he is not first shot in self-defense by whoever tries to get ahold of him. Due process to be found guilty as fuck of being a total asshole. And then whatever they do to total assholes who have been convicted by a jury of their peers. But it is not SAVING by any means.

Yes, I am fully in support of making sure this guy has access to his Constitutional rights. His Constitutional rights to a trail at which he can be found guilty and dealt with by the system so that his victims can see actual justice being served - not some crazy vigilante extra-legal justice that puts blood on the hands of whoever takes him down.
posted by grapefruitmoon at 12:04 PM on August 3, 2010 [1 favorite]


Doing a little more digging, it seems the authority for the Treasury to do what it's doing in this case seems to come from the expanded powers granted to it when congress passed the Patriot Act. So whether the Treasury exercises its authority now or not, it's authorized by law.

That's what we should be trying to change. Even if no part of the current administration exercised any of these powers, those powers would still remain there in standing law, waiting for another administration to invoke them. Hopefully, the courts will shoot the Treasury down, and that will be the end of these powers. But the way the courts tend to go these days, I wouldn't hold my breath.
posted by saulgoodman at 12:06 PM on August 3, 2010


In case anyone is interested, Here's our previous discussion on Anwar al-Awlaki.
posted by quin at 12:07 PM on August 3, 2010


I think you can't discuss him turning himself in without considering how the US government treats terrorist suspects. There's no compelling reason to believe he'd get a trial that way either.
I think overall it would be a much better system if we respected habeus corpus, gave suspects trials, and didn't assassinate people. You work with local law enforcement, and yes, sometimes people evade capture, and sometimes you get them and they're acquitted. This guy will not destroy American civilization. Absolutely will not.
So the question is, how much do you give up by going down the route where there's no habeus corpus, and you kill guys like this with hit squads or drones, or whatever? Also, I suppose, what do you gain? I personally don't see much gain. Every guy like him you kill, I think you just create more. And actually standing for something is a powerful symbol that I think really pays dividends in the long run, not to mention providing better protection for my own rights, which I like having. And I'm just not that frightened of terrorists.
I agree that we've never really lived up to our big talk on human rights, but it's scary to see Americans getting a lot more comfortable with this kind of stuff.
posted by Humanzee at 12:11 PM on August 3, 2010 [1 favorite]


I don't think anyone is arguing that if Anwar al-Awlaki is brought into a courtroom, he should be denied any of his rights.

The question is he allowed access to those rights while he is actively engaged in Treason, a crime specifically described on the Constitution. He very much seems to the be "levying war" against the United States.

I understand the slippery-slope argument that leads to "the government is assassinating innocent people at their whim", but this situation seems quite specific in a person apparently engaged in Treason, not just voicing an opinion but working to kill Americans, being saddled with a 'capture or kill' order because he not within our legal system in any way, where he could be given due process.

Quite different than José Padilla, an American citizen that was within our legal system (in the brig) but was denied his rights. The Supreme Court properly ruled that Padilla must be brought within the US Court system not the Military Court system and by virtue of that was able to exercise his full rights to counsel and due process.
posted by Argyle at 12:12 PM on August 3, 2010


...I haven't seen anyone around here protest loudly that Osama bin Ladin shouldn't be hunted down and killed rather than given a trial."

You haven't been paying close attention. The entire Global War on Terror was about conflating states with individuals and war with crime.

The attack on the WTO was not organised by a state, and was not an act of war. As reprehensible and pussy-footed as they were, the Taliban wanted a legal solution to the extradition of bin Laden: "Show us the proof and we'll give him to you." Before the invasion of Afghanistan there were negotiations for a trial in the Hague or under sharia law. If al Queda's attack had been treated as a criminal matter, just as the earlier WTO attack had been, thousands of lives would have been saved - not to mention a trillion dollars.

Hell, you could have even have done what the Israeli's did with Adolf Eichmann, and snatched bin Laden out of Afghanistan. Even the Israeli's knew in '62 that Eichmann, responsible for the deaths of millions, deserved a trial.

The moment you start making exceptions to the law, you start down an extremely slippery slope. You're seeing one of the results of that right now.

That's one of the reasons people with a political conscience were protesting the Patriot act and the like: not because the laws were granted to a Republican president, but because they knew that succeeding administrations, whatever their affiliation, do not give up powers once they have been granted; and that once given, those powers become open to abuse: what was the exception becomes the rule, and "emergency powers" become the norm.
posted by Bora Horza Gobuchul at 12:13 PM on August 3, 2010 [11 favorites]


It's this bit, shakespeherian, that I think is in contention:

provided that all receipts of payment of professional fees and reimbursement of incurred expenses must be specifically licensed:

Basically, an office of the Treasury has to provide authorization before any attorneys can accept payment to render services to someone on a particular terrorist watch list.

What's not clear to me is how this prevents legal counsel being provided on a pro bono basis. As written, I don't see how it could. It seems to me there's nothing in law to prevent an attorney or group of attorneys from providing pro bono legal services to al-Awlaki, so this case might specifically be meant to target that particular provision of the law.
posted by saulgoodman at 12:16 PM on August 3, 2010 [1 favorite]


You haven't been paying close attention. The entire Global War on Terror was about conflating states with individuals and war with crime.

No, I know that, and I agree with you. I however do not recall seeing anyone on MetaFilter stating that bin Ladin should not be killed. Again, it is entirely possible that I missed it.
posted by shakespeherian at 12:17 PM on August 3, 2010


It looks like trial in absentia is not really an option in the US.

it would certainly be unconstitutional.

i think that's unfortunate in these very specific instances, because it seems to force the decision making to be a choice between ...

a] "extralegal death-squads"

b] "doing nothing while you have possible evidence of imminent threat, but no venue to validate the evidence"
posted by striatic at 12:17 PM on August 3, 2010


"The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism." - US President Abraham Lincoln, General Order 100
posted by Azazel Fel at 12:18 PM on August 3, 2010


Well, given that Marc Thiessen essentially called for a fatwa on Julian Assange in the Washington Post, it seems like the gauntlet has been thrown down. The U.S. is now a rogue state, with weapons of mass destruction, a corporate feudal system primarily concerned with bleeding our treasury out for the bankers and military-industrial complex. EVERYTHING else is secondary, especially piddling trifles like individual rights, domestic and international law, and anything which has defined us as a democracy for/by the people. The charade has evaporated, our brutality there for the whole world to witness. The next time there's a major strike against the United States, the world will cheer in solidarity with those who hit us.

We are fucked.
posted by dbiedny at 12:18 PM on August 3, 2010 [9 favorites]


saulgoodman We've gone back and forth a few times about Obama. Despite my arguments with you, I do actually appreciate your defense of the man. I know you are an ardent Obama supporter and see an urgent need to defend him from his liberal critics, and I'll even concede that we on the liberal side have been damn hard on him.

But I think you're allowing your urge to defend Obama take you into the realm of bad arguments. To equate an order for the US military to specifically seek out an individual US citizen and premeditatedly kill them to police shooting an armed suspect attacking them is not a good argument.

If even you are having such a difficult time coming up with good, compelling, reality based, arguments in this instance I'd recommend you consider the possibility that perhaps in this specific case us DFH's are right and Obama really is doing something wrong.

If nothing else, consider that Obama will only be in office until 2016 at the most. Someone will replace him, that someone is likely to be a Republican, and given the way the Republican party is going these days they're very likely to be a batshit insane Republican. Do you really want to hand Palin, or Jindal, or any of that crowd the ability to unilaterally and with no oversight at all order the death of a US citizen? Perhaps you are right and Obama can be trusted with that power, I'll disagree with you but let's assume for the sake of argument that it is true, but even given that I think we will agree that Palin, or Jindal, or whatever Republican is not someone we can trust with that sort of power. For the sake of denying it to them, we must also deny it to Obama, yes?
posted by sotonohito at 12:20 PM on August 3, 2010 [2 favorites]


I however do not recall seeing anyone on MetaFilter stating that bin Ladin should not be killed.

Bin Laden should not be killed. If at all possible, he should be captured and brought to the State of New York where he will be charged with the crimes we believe he has committed and then be judged by a jury of his peers, in accordance with the laws and customs of the State of New York.
posted by Azazel Fel at 12:20 PM on August 3, 2010 [4 favorites]


...and then put to death.
posted by Pope Guilty at 12:23 PM on August 3, 2010


Bin Laden should not be killed.

Thanks. I also think that bin Ladin should not be killed. This doesn't change what I said earlier.
posted by shakespeherian at 12:24 PM on August 3, 2010


And at that same trial for Bin Laden, I want to see Bush, Cheney and Rumsfeld answer for their war crimes and treasonous behavior. Justice need to be served to ALL those guilty of atrocities, or it's meaningless.
posted by dbiedny at 12:27 PM on August 3, 2010


And at that same trial for Bin Laden, I want to see Bush, Cheney and Rumsfeld answer for their war crimes and treasonous behavior. Justice need to be served to ALL those guilty of atrocities, or it's meaningless.

*rolls eyes*

All justice is incremental. Holding out for everyone on your hit list is not good policy.
posted by norm at 12:32 PM on August 3, 2010 [1 favorite]


For the record, though, "Saving Anwar" is really fucking obnoxious.

Because al-Awlaki is Evil, I take it.

But you have no legal finding to support that belief. Even though such Evil-ness should make obtaining such a finding quite easy.

No, what you have instead is a claim by the US government. Was such a claim sufficient proof for you when Bush said there were WMDs in Iraq?

And if a claim by the US government was not sufficient proof for you then, why would it be sufficient proof for you now? Because terrorists have names like "al-Awlaki"? Or because you trust Obama's administration more than Bush's?

Because if it's the last, I join tyllwin in saying:

I want a nation of laws and not a nation of "daddy said so."
posted by Joe Beese at 12:33 PM on August 3, 2010 [3 favorites]


There tends to be a bias that the times we live in are the most important and most perilous, ever.
We actually survived newspapers inciting assassination of the president, we have survived massive economic depressions, wars that tore the nation apart, massive civil unrest. We survived the KKK having membership in excess of 10% of the population, and so much more.

but now? Suddenly we are all fucked and the US is teh absolute evil with no good at all coming from government all because some asshole who happens to have been born in the US has surrounded himself with people willing to die for him while he exhorts them to acts of violence and there has been an exception issued.

I appreciate absolutism and I know why people engage in it, but it never works. We are not computers, we are much more complex.
posted by edgeways at 12:34 PM on August 3, 2010 [2 favorites]


How is this not a Bill of Attainder?
posted by eriko at 12:35 PM on August 3, 2010


How is this not a Bill of Attainder?

Ooooh! Are we going to bring back codpieces, too? And beheadings? That'd be pretty bad ass. HENRY VIII 4 PREZ, 2012!!!
posted by grapefruitmoon at 12:39 PM on August 3, 2010


So Azazal: Did Lincoln not preside over the targeted killing of 72,524 traitors during the civil war?

Whether you accept it in principle or not, congress under Bush authorized military action against al-Qaeda and any affiliated terrorist groups or individuals (and it explicitly made its declaration open ended and equivalent to a declaration of war by invoking the War powers act, despite hand-wavy claims to the contrary). This authorization passed with a high level of bipartisan support, and I haven't yet heard anyone in congress talking seriously about rescinding it.

That declaration, dumb and wrong as it was, is now as much a matter of settled law as anything else is. I think it's terrible law, and reflects just how badly broken down the whole system is now, but there's no sense I can think of in which the word "assassination" applies to killing participants on the opposing side in a legally declared war, and we've never required a legal process to identify who is or isn't in bounds as a combatant on either side of a war anyway while the war was still ongoing.

I would personally love to see all this reversed. But how? Congress doesn't seem to have any appetite for correcting these wrongs. The Republicans aren't going to do any better if they get elected. In fact, if history is any guide, they'll do a lot worse.

If even you are having such a difficult time coming up with good, compelling, reality based, arguments in this instance I'd recommend you consider the possibility that perhaps in this specific case us DFH's are right and Obama really is doing something wrong.

Well, my point in the previous cases is just to show that we could very easily characterize every "apprehend by any means up to and including lethal force" type order as a government assassination order. The actual legal case is a lot simpler, as described above.

As for the use of extra-judicial authority--hell, is it really advisable to go putting faith in the judicial system serving as a defender of constitutional principle at this point? At every step, the courts have had/continue to have opportunities and all necessary authority to correct the policy. So it doesn't matter to me if the order is claimed to be "extra-judicial," and in fact, it's not: the judiciary hasn't ruled either way on that question yet. These policies are all formally legal, whether they're consistent with the constitution or not, so until the courts strike these laws down or congress takes action to do the same, they will remain the law of the land, no matter how I might feel about that. If the Obama administration didn't apply these laws, the courts wouldn't even have an opportunity to challenge them, so now it's up to the system to do its work.
posted by saulgoodman at 12:43 PM on August 3, 2010 [1 favorite]


How is this not a Bill of Attainder?

A bill of attainder is a legislative act, and this is an executive act. I imagine the argument is that a targeted assassination is a function of the commander in chief powers under Article II. Note that the last time the BoA clause came up it was to invalidate the knee-jerk De-Fund ACORN Act in a case last year.

I think there's a decent argument to be made that the denial of the right to counsel for a designated "Global Terrorist" could well be Attainder-ish, although the term gets stretched if the name of the Attaindee is not in the actual Bill.
posted by norm at 12:46 PM on August 3, 2010


"Specially Designated Global Terrorist". This makes it a criminal offense for the ACLU or CCR to provide you with legal representation.

This provision does not say what you say it does. First, the Code of Federal Regulations is administrative, not criminal. Only a law passed by the Congress and signed by the president may prescribe criminal penalties.

What that section is designed to do is prevent people from using frozen funds for legal defense without a license to use the frozen funds under the control of the Treasury Department.

The reason for this is simple. Say a terrorist suspect controlls 5 million for terrorist activities. The monies are frozen. If there were no provision for this, then an attorney in leauge with a terrorist organization could "charge" 5 million for the defense of the terrorist, then turn it over to the terrorist organization. This would defeat the process of freezing the assets in the first place.

I think there are many good reasons to say that the policy of going after terrorists like this is wrong or mistaken. This is not one of them.

Glenn Greenwald does more disservice than service to his causes. He argues passionately but dishonestly.
posted by Ironmouth at 12:47 PM on August 3, 2010 [4 favorites]


But I think you're allowing your urge to defend Obama take you into the realm of bad arguments. To equate an order for the US military to specifically seek out an individual US citizen and premeditatedly kill them to police shooting an armed suspect attacking them is not a good argument.

I believe the question is, does the due process clause of the 5th amendment reach into foreign states and protect U.S. citizens in the position of the gentleman so targeted.

I'm no expert, but I think it likely does not. If a person takes up arms against the United States, he or she is an enemy of the United States. This is the position that the government has taken.
posted by Ironmouth at 12:51 PM on August 3, 2010 [1 favorite]


What that section is designed to do is prevent people from using frozen funds for legal defense without a license to use the frozen funds under the control of the Treasury Department.

Thanks for the explanation, I was having trouble figuring that out.
posted by shakespeherian at 12:54 PM on August 3, 2010


Not to say that the legalities of the situation aren't troublesome, but leaving this shit out smacks of "innocent victim" which is absolutely not what is going on here.

One of his Constitutional protections that you claim to be in full support of is presumption of his innocence. Until you have a legal finding to say otherwise, an "innocent victim" is exactly what he is.
posted by Joe Beese at 12:57 PM on August 3, 2010 [2 favorites]


Until you have a legal finding to say otherwise, an "innocent victim" is exactly what he is.

This is a little Pollyannaish. The complaint was about the way a MetaFilter post is framed, and your MetaFilter post isn't of legal consequence; we're just folks talking. Legal presumption of innocence does not extend to casual conversation.
posted by shakespeherian at 1:01 PM on August 3, 2010 [2 favorites]


There tends to be a bias that the times we live in are the most important and most perilous, ever.

This is because we are the most important people ever. Nobody ever has, or ever will, be as important as us. The things we think significant are, necessarily, the most significant things in history. If we disagree with something, or something bothers us, it is necessarily the worst thing to have ever existed.

I mean, really. Duh.

So, yes, due to recent events we are now more fucked than anyone at any point in history, anywhere in the world. Sudan? Less fucked. Carthage? Less fucked. The Congolese, suffering under Belgian rule? Way less fucked. I'm not even going to bother explaining how much more fucked we are than those coddled dinosaurs.

Wait until I get a chance to lecture you about the spectacular unprecedented dangers lurking in my kitchen sponge -- that mold is a THOUSAND TIMES more terrifying than the Black Death!
posted by aramaic at 1:04 PM on August 3, 2010 [1 favorite]


What that section is designed to do is prevent people from using frozen funds for legal defense without a license to use the frozen funds under the control of the Treasury Department.
It may be designed to do that, but a casual reading of the section Greenwald links looks as though it requires licenses for any representation. I'm not a lawyer, but from their brief, the ACLU lawyers seem to think so too. The ACLU applied for a license to provide free representation, but weren't told, "you don't need one". They were just ignored. Now they're filing suit to claim they shouldn't need one.

First, the Code of Federal Regulations is administrative, not criminal. Only a law passed by the Congress and signed by the president may prescribe criminal penalties.
According to the ACLU brief, the executive orders ultimately derive their authority from The International Emergency Economic Powers Act, which provides for criminal penalties for violations.

Glenn Greenwald does more disservice than service to his causes. He argues passionately but dishonestly.
As is often the case, I'm not impressed with your honesty. It's possible that the ACLU is mistaken, but from your comments, it's clear you haven't really examined the details of this case.
posted by Humanzee at 1:05 PM on August 3, 2010 [1 favorite]


Clearly what this thread needs is more hyperbole.

How much worse do things need to fucking GET before you'll sit up and take notice, and stop being all fucking superior and dismissive?

They're trying to kill someone without a trial, and when his father tried to get due process followed, they declared him a terrorist and tried to remove his right to legal counsel.

I can't imagine a situation more deserving of the strongest possible language. This is an abomination. It's a violation of everything we're supposed to stand for.

I sure hope this guy wins. If that finger ever gets pointed at someone you or I love, we'll be very grateful for the hell he's going through.
posted by Malor at 1:06 PM on August 3, 2010 [3 favorites]


There is significant disagreement about what is right, legal, justifiable, and ethical in this thread. In my opinion, this is sound reason for careful discussion, not hyperbole, which is not persuasive, but rather dismissive.
posted by shakespeherian at 1:09 PM on August 3, 2010


Legal presumption of innocence does not extend to casual conversation.

True, but the Federal goverment isn't casually discussing whether or not he should be murdered. They seem to be pretty serious about it.

So Azazal: Did Lincoln not preside over the targeted killing of 72,524 traitors during the civil war?

No, he didn't. He specifically forbade the "targeted killing" of Confederates as "barbarism". The Confederates who died in battle actually died in battle against US forces, and werent summarily executed after they had been captured. Thank God the Civil War isn't being fought today: each side would declare the other to be "enemy combatants" and the bloodshed would be less like Gettysburg and more like Hitler's Ukranian Campaign in '41: no quarter for either side, no prisoners, no mercy.

Is that how we really want to wage war?
posted by Azazel Fel at 1:12 PM on August 3, 2010 [4 favorites]


If that finger ever gets pointed at someone you or I love

That is why this issue is much bigger than al-Awlaki.

In our haste to dispose of the nuisance that is due process, we lay down one more brick on the road to fascism.
posted by Blazecock Pileon at 1:13 PM on August 3, 2010 [2 favorites]


If a person takes up arms against the United States, he or she is an enemy of the United States. This is the position that the government has taken.

But what they're trying to do is punish him for acts they imagine he might take, not defending themselves in the heat of the moment against an active threat.

The US government makes many assertions about one of its citizens, but they have not proven them in a court of law. And they seek to impose the ultimate penalty without bringing a case and without allowing him to defend himself.

We're supposed to be about justice, not expedience. We're supposed to actually prove our case before punishing people, no matter how guilty we think they are.

Remember, something like 85% of the Enemies of America™ in Guantanamo were actually innocent.
posted by Malor at 1:15 PM on August 3, 2010 [4 favorites]


One of his Constitutional protections that you claim to be in full support of is presumption of his innocence.

Right, in the legal sense of the word when he goes on trial until he's proven guilty.

The Constitution says nothing about the opinions of people on internet communities, or the opinions of journalists who have pretty much laid it out there that the guy has been involved in some serious "deserving of judicial action" shit.

What I'm saying is this - the guy was not a random American living in Yemen who the government decided "Oh hey! YOU! YOU THERE! We want to kill you!" There were reasons. There are specific charges laid against him. This is not the "What if they come for YOU or YOUR FAMILY?!" situation that his supporters are laying out. Look, I hope they get within the law on this and give the guy a trial. Of course I do. But. And here's the big but.

This is NOT going to happen to you or YOUR FAMILY unless you and your family start deciding to get involved with terrorism. I'll admit that my country has gone down some pretty ugly roads and done some horrible shit. However. What's going on here is a really awful way of handling a terrorist situation. Not "We've decided that Joe Citizen can't have a lawyer because he's ugly."

Taking this out of context for the sake of emotional appeal is completely disingenuous. I know that I can fully acknowledge that this guy deserves his civil rights while also acknowledging that he's been involved in terrorist activities. I think most of us can wrap our heads around that and trying to divorce the latter to convince someone of the former is intellectually lazy.
posted by grapefruitmoon at 1:15 PM on August 3, 2010


One of his Constitutional protections that you claim to be in full support of is presumption of his innocence. Until you have a legal finding to say otherwise, an "innocent victim" is exactly what he is.

Once again, your point doesn't hold up in reality.

Someone killed by police during commission of a violent crime such as shooting up a school or church, is not considered an "innocent victim". It is commonplace for authorities to act with force without any legal finding in place. Also, a legal finding is as simply as a Judge approving a search warrant. If a FISA judge finds that Mr. al-Awlaki is a threat and should be captured for trial, as you OK with the 'capture or kill' order?

Again, if Anwar al-Awlaki faces the charges in court, he should be given every possible protection under the law. But as he appears as an direct and immediate threat to American citizens, and we are not able to begin the legal process with him, some action must be taken. The order is to capture him and if that cannot be achieve, kill him.

What is your recommendation that we do instead to protect people from Mr. al-Awlaki's publicly stated goal of killing Americans if we cannot capture him for trial?
posted by Argyle at 1:17 PM on August 3, 2010


This is NOT going to happen to you or YOUR FAMILY unless you and your family start deciding to get involved with terrorism.

How do you know that?
posted by Azazel Fel at 1:18 PM on August 3, 2010 [3 favorites]


This is NOT going to happen to you or YOUR FAMILY unless you and your family start deciding to get involved with terrorism.

How do you know that?


Because it hasn't happened yet and it is known to be currently happening at this magnitude in other cases. If you want to go make a slippery slope argument, be my guest, but there is zero evidence that this is going to lead to random people who have never committed a crime being taken in and held without the right to counsel. None. There is no suggestion here that this will set precedent in civilian trials. And the outrage over it suggests that the government might not get away with it this time either (nor should they), making it a lot harder to think they'd be able to slip it past us in the future.

Hopefully they won't be able to get away with it now, but shit happens. It absolutely 100% does NOT imply that this shit will happen in a completely different context when no crimes were committed in the first place.
posted by grapefruitmoon at 1:24 PM on August 3, 2010 [2 favorites]


True, but the Federal goverment isn't casually discussing whether or not he should be murdered. They seem to be pretty serious about it.

I... what? We are casually discussing it. That's exactly what I just said.
posted by shakespeherian at 1:25 PM on August 3, 2010


If you want to go make a slippery slope argument, be my guest, but there is zero evidence that this is going to lead to random people who have never committed a crime being taken in and held without the right to counsel.

How many of the Guantanamo Bay prison detainees have been charged with a crime, over its history?
posted by Blazecock Pileon at 1:29 PM on August 3, 2010 [10 favorites]


No, he didn't. He specifically forbade the "targeted killing" of Confederates as "barbarism".

My point is that Union soldiers killed Confederate soldiers indiscriminately without requiring any particular legal process to identify individual Union soldiers throughout the duration of the civil war, regardless of whatever Lincoln might have said about "assassinating" them in peace time or whatever the context of his comments.

The US is currently still legally at war with terrorists affiliated with al-Qaeda, as was specifically authorized by congress. Whether you accept that authorization on moral or philosophical grounds or not (I don't myself, particularly), it is true as a matter of fact.

So al-Awlaki, by actively engaging in operations on the al-Qaeda side against the US in a current, legally declared war, is a combatant in an ongoing war against the US. His standing as an American citizen is beside the point, legally. Former residents of Union states who joined and fought on the side of the Confederacy were considered legitimate targets, despite also being American citizens so long as they were engaged in fighting the US. al-Awlaki, by the same token, is a combatant active on the opposing side of what from a legal perspective remains an ongoing war.
posted by saulgoodman at 1:33 PM on August 3, 2010 [2 favorites]


There's Maher Arar. I think that grapefruitmoon has a good general point that it doesn't help to downplay this guy's past actions, because they're irrelevant to the larger point of protecting civil rights, and it appears dishonest, even if it isn't intended to be so (to be clear, I don't think it was).

Nevertheless, mistakes seem to be the rule, rather than the exception in the "war on terror". I also recall reading a few articles about anti-terror laws being used on gang members. So there is already some mission creep with this kind of stuff.
posted by Humanzee at 1:33 PM on August 3, 2010


"But you have no legal finding to support that belief. Even though such Evil-ness should make obtaining such a finding quite easy."

the problem is that his reported evilness might make obtaining a finding quite easy, but actually getting the guy into a courtroom in order to satisfy due process is incredibly difficult.

that's the crux of the problem. if he were hiding and evading prosecution in the united states, this wouldn't be an issue. he'd eventually be caught and put on trial.

but he's not in the united states, he's in yemen. you can't arrest him while he's in yemen, you really don't want to go to war with yemen just to make them let you arrest him.

what do you do? nothing? continue trying to pressure yemen diplomatically? send an assassination squad in after him? there should be some fair process involved

"Again, if Anwar al-Awlaki faces the charges in court, he should be given every possible protection under the law. But as he appears as an direct and immediate threat to American citizens, and we are not able to begin the legal process with him, some action must be taken. The order is to capture him and if that cannot be achieve, kill him."

the problem is that everyone knows that capture is pretty much impossible, so there's never going to be a legal process to verify the charges against him. he's going to be killed and that'll be that. it is sad that the legal process can't even begin without his capture, because there is a big difference between being captured for trial and being shot on executive order. it is bizarre to have those two outcomes lumped in together. capture for trial makes sense to begin the legal process but assassination ends it before it even begins.

there should at lest be a judicial check on that kind of power.
posted by striatic at 1:35 PM on August 3, 2010


So, al-Awlaki was labeled a "Specially Designated Global Terrorist"... for all the best of reasons. And yes, according to laws made during the early years of the Bush administration, passed by both Republicans and Democrats, this makes it a crime for US institutions to provide him with legal representation... not that al-Awlaki is denied such representation from any other source out there, including overseas organizations. (i.e. not this administration's fault, and really nothing new.)

And yes, the US government wants to kill or capture this dangerous traitor who is engaging in anti-US propaganda, inciting our own citizens to kill their fellow Americans. But is this really anything new?!

After the British withdrew from Philadelphia in June 1778, Gen. Washington appointed Benedict Arnold military commander of the city. Arnold promptly engaged in profiteering on business deals, and was later judged to owe the Continental Congress some £1,000.

Even as he engaged in profiteering, he was secretly contacting the British, offering detailed intelligence on Continental Army defenses... for a price. The British command was particularly interested in undermining West Point and the Hudson River, and requested Arnold to seek a more strategic command.

Despite his prior record as a heroic general, Arnold's profiteering made his position in Philadelphia untenable. He resigned his command in late April, 1780, expecting to be named to the command of West Point. General Washington, harshly criticized Arnold's behavior, and seemed tepid on the idea. Arnold reopened communications with the British, providing detailed information on the defenses of West Point, and warning of a proposed invasion of Quebec.

Arnold began transferring his assets to London, and by July 12 he made an explicit offer to surrender West Point in exchange for £20,000. On August 3, 1780, Arnold obtained command of West Point and the Hudson River defenses... which he promptly started weakening, while selling its supplies on the black market.

Fortunately, the agent that Arnold was using as an intermediary with the British was captured, and the plot was thwarted.

In September 1780, Philadelphians held an anti-Arnold parade, parading him in effigy, with two faces, and the figure of the devil behind him, whispering in his ear, a purseful of money in his hand.

Arnold slipped away into British-controlled New York, from where he launched a propaganda campaign, trying to justify his actions with letters to numerous newspapers, urging Royalists to rise up against the tyranny of the Continentals.

Gen. Washington took all this quite seriously. He tried infiltrating agents into New York, to capture -- or possibly kill -- Benedict Arnold, who narrowly escaped the attempt by going to Virginia, where he was given a military command and took Richmond by surprise, looting and destroying local industry.

Thomas Jefferson, who was governor of Virginia at the time, also took the threat of Arnold quite seriously, supporting two plans to capture or kill Arnold... both of which failed. Arnold's army was forced to retreat by the state's militia, fortunately.

So, while I do understand that rights are important, you have to also understand that treason -- openly turning on your country, and plotting death and downfall for its people -- is a very serious thing, and that capturing or killing such men has always been a gray area, where legalities are set aside.

I disagree with the rightwing on 99.9% of everything, but the fact remains... this guy is a serious threat, and it's entirely right and proper of Americans to not really care all that much about dangerous, openly defiant traitors, and how they're dealt with by our government.
posted by markkraft at 1:35 PM on August 3, 2010 [1 favorite]


Taking this out of context for the sake of emotional appeal is completely disingenuous. I know that I can fully acknowledge that this guy deserves his civil rights while also acknowledging that he's been involved in terrorist activities. I think most of us can wrap our heads around that and trying to divorce the latter to convince someone of the former is intellectually lazy.

If you can legally prove his involvement with terrorist activities, please do so. I am not willing to take either your word or Barack Obama's for it.

And a charge of intellectual laziness is quite something coming at the end of a post that includes:

... the guy was not a random American living in Yemen who the government decided "Oh hey! YOU! YOU THERE! We want to kill you!" There were reasons. There are specific charges laid against him.
posted by Joe Beese at 1:38 PM on August 3, 2010 [1 favorite]


Because it hasn't happened yet and it is known to be currently happening at this magnitude in other cases.

So the US Government will never order the killing of US Citizens without a trial because it's not happening right now? Are you really saying that?

If you want to go make a slippery slope argument, be my guest,

OK

but there is zero evidence that this is going to lead to random people who have never committed a crime being taken in and held without the right to counsel.

But many people are being held without trial. Actually, we don't know exactly how many are being held without trial because the Goverment refuses to share that information with it's own citizens.

Also, you mention "random people" being held without trial. I can assure you, once these dictatorial powers are abused (can dictatorial powers ever NOT be abused?) the people they will be used against will most assuredly NOT be random. You likely have nothing to fear, since you are not a Muslim, or a homosexual, or an animal rights activist ("Ecoterrorist"). But if we start ordering the extra-judicial killings of Muslims who are "obviously our enemies" then it won't be long before the scope of these killings are expanded to others. These sorts of powers are never kept in check.

It absolutely 100% does NOT imply that this shit will happen in a completely different context when no crimes were committed in the first place.

We have not yet established that the target in question has comitted any crimes. The government is saying that they should be able to murder him first instead of taking the rather inconvenient route of actually establishing his guilt.
posted by Azazel Fel at 1:39 PM on August 3, 2010 [2 favorites]


If we don't stop this, there's a risk that eventually elements of the government will try to put citizens INSIDE THE USA on this "no legal representation for you" list.

Also: soon, four year olds will be voting because we lowered the voting age, taxes will soon be at 100% if they are raised, the government will be coming to take your guns next if they ever license them, and people will be marrying animals because we let teh gays marry.

Not everything is a step along an inevitably progressing continuum. It is often worthwhile to look down the road and understand what the negative consequences could be at the end of the road. The subtle and difficult thing is to figure out where/why any particular place on the continuum becomes unacceptable and what can keep you above that without sacrificing acceptable or even positive segments of it.

I don't think there's a good argument that al-Awlaki is a great guy who's falsely accused and doesn't deserve to be treated like an enemy of the state. This specific case appears to be fine. The question is how to make sure it doesn't get beyond cases like this while allowing us to act in cases like this.
posted by weston at 1:45 PM on August 3, 2010 [2 favorites]


The US is currently still legally at war with terrorists affiliated with al-Qaeda,

We are fighting an unwinnable war against a vague and constantly shifting enemy with no metric for victory. There is no way anything involved in this can end well.
posted by fuq at 1:46 PM on August 3, 2010


monospace: "No wonder they hate our freedoms."

"If this is freedom, I don't want it"
posted by symbioid at 1:47 PM on August 3, 2010


God, I'm so pissed off right now. This post was written so misleadingly, I've permanently filed "Joe Beese" in the drawer title "hack with too much time on his hands and not to be taken seriously".
posted by nomadicink at 1:48 PM on August 3, 2010 [7 favorites]


I fully believe in the right to a fair trial and the right to representation, but that only applies to people who are arrested and charged. I'm anti-death penalty, too. But if al-Awlaki is still actively involved in violent crimes and in all likelihood planning and executing more violent crimes then the priority is to stop him by any means necessary.
If he is captured or surrenders himself, then I will 100% support his rights to trial and representation.
And if anyone wants to accuse me of calling for the summary execution of every fugitive criminal, you can stop now. This is entirely about the extraordinary scope and scale of his crimes.
posted by rocket88 at 1:50 PM on August 3, 2010


He specifically forbade the "targeted killing" of Confederates as "barbarism". The Confederates who died in battle actually died in battle against US forces

That doesn't really fly except as a prohibition on murdering captured prisoners. Both sides in the Civil War made extensive use of snipers. Which meant, on the US side, that an agent of the US government was specifically and individually targeting people for murder without benefit of any trial. And those people need not have been engaged in battle at the time of their killing, but rather in camp or otherwise behind the lines of battle.
posted by ROU_Xenophobe at 1:52 PM on August 3, 2010 [3 favorites]


I am not willing to take either your word or Barack Obama's for it.

Why didn't you just put that in the post? Could have cut to the chase without all this grar.
posted by Big_B at 1:56 PM on August 3, 2010


So we throw in some teargas in the building with the barricaded jogger/contractor/whoever, grab the guy when he comes out, and then we take him for a fair trial. Seems pretty cut and dried to me.
posted by adipocere at 2:18 PM on August 3, 2010


Sounds great!

So... how much teargas do you think it would take to do the same thing to Yemen?!
posted by markkraft at 2:22 PM on August 3, 2010


Rather than kill-on-sight, I'd vastly prefer that we snatched the guy up in the dark of the night and brought him to trial. Not only is it more just, it's also a hell of a lot more spooky.

Leaving his body does nothing but prove we can kill people and cause more anger. I think we've established that we're pretty good at that. Leaving an empty space where he was supposed to be and having him suddenly appear on TVs at a location half a world away?

Way more impressive.
posted by quin at 2:26 PM on August 3, 2010 [1 favorite]


In this hypothetical scenario, Yemen has been teleported inside of the United States and then collectively blown up a building here?
posted by adipocere at 2:26 PM on August 3, 2010


Not sure if posted above, but here's Democracy Now's take on it.
posted by IndigoJones at 2:27 PM on August 3, 2010


I'm not a lawyer, but from their brief, the ACLU lawyers seem to think so too.

I am. Of course their brief says that. They wouldn't be doing their job
posted by Ironmouth at 2:31 PM on August 3, 2010 [2 favorites]


Nevertheless, mistakes seem to be the rule, rather than the exception in the "war on terror".

Mistakes are the rule, not the exception in war, period. There's nothing more condusive to mistakes than people running around trying to kill one another. People who expect war to be anything like a movie are fools.
posted by Ironmouth at 2:33 PM on August 3, 2010 [1 favorite]


"here's Democracy Now's take on it."

"the fact that he's an American actually makes no difference..." - Philip Alston

In other words, if you really want to defend al-Awlaki's rights -- the ones he refuses to publicly defend himself -- then to be fair, you should also want to defend the rights of Osama Bin Laden as well, and shouldn't want our government to launch an airstrike against him, even if his location is absolutely determined.
posted by markkraft at 2:42 PM on August 3, 2010


Reviewing the brief, the ACLU is trying to back-door an injunction against the President giving an order by bootstrapping it to the government's failure to provide the requisite license to engage in a transaction since July 23, 2010, when it applied for the license.

It appears from the brief that the government has routinely granted these licenses in the past.

What seems disengenous here is this: why not move to have the government ordered to provide the necessary license, rather than attempt to enjoin the president from exercising his war powers? The route they're taking is far less likely to succeed at getting him protected than it is at generating publicity. The court is highly likely to leave the war power alone. It very rarely will touch the war powers under separation of powers doctrine. The War Powers of the Presidency are amongst the most plenary out there.
posted by Ironmouth at 2:44 PM on August 3, 2010 [1 favorite]


Fine Ironmouth, but the tone and content of your last comment is wildly different from your first. Instead of this being a lying non-issue, now you're saying that the ACLU is taking a strategy more likely to create publicity than successful litigation, and Greenwald has bought into it. I'm not convinced, but your latter comment at least seems reasonable.

And I'm well aware that confusion is common in war (although I don't believe that the "war on terror" is a war at all). I specifically mentioned that in response to someone who claimed that no non-terrorist has ever been caught up in the terror-war legal machinery. In this case, an innocent man was in US custody and then subsequently sent to Syria to be tortured. Confusion alone doesn't explain that, ideology is necessary too. Anyway, clearly the US government can be mistaken about whether or not someone is a terrorist.
posted by Humanzee at 3:26 PM on August 3, 2010 [1 favorite]


By "in this case" I meant the Arar case. Sorry for the ambiguity.
posted by Humanzee at 3:27 PM on August 3, 2010


Fine Ironmouth, but the tone and content of your last comment is wildly different from your first.

One is how I feel, the other is a comment on their legal strategy that has nothing to do with my opinion.

Greenwald is a fool. He argues like Hannity. That's a fool.
posted by Ironmouth at 3:36 PM on August 3, 2010 [1 favorite]


Mistakes are the rule, not the exception in war, period. There's nothing more condusive to mistakes than people running around trying to kill one another.

Which is precisely why we should be proving things in court before we authorize assassinations.

The whole idea that you can even declare war on a tactic is flatly stupid, and it's tearing apart what made us great. We sacrifice principle after principle to 'get the bad guys', but there's always more bad guys. Always. We actually increase that percentage by giving up on our principles.

All the terrorists did was blow up a couple of buildings and kill some people; we're the ones who destroyed liberty and justice.

As long as any of us can have The Finger pointed at us, and be killed without proof, none of us are free.
posted by Malor at 3:44 PM on August 3, 2010 [3 favorites]


"As long as any of us can have The Finger pointed at us, and be killed without proof, none of us are free."

Assuming, of course, that any of us would praise a US soldier that killed 12 fellow soldiers and wounded 31 others, and then use his religious authority to say that under no circumstances should any American Muslim serve in the military... unless it was their goal to do exactly the same thing.
posted by markkraft at 3:54 PM on August 3, 2010


One is how I feel, the other is a comment on their legal strategy that has nothing to do with my opinion.

You made a factually false statement (about the lack of criminal penalties) while accusing others of dishonesty. That's not just how you feel. Your comment on their legal strategy is based on an estimate of likelihood of success. That is in fact based on your opinion.
posted by Humanzee at 3:57 PM on August 3, 2010 [1 favorite]


As a few posters have said, this does not actually deprive him of the right to legal counsel. He is already deprived of the right to use money that's in the USA or controlled by "US persons" and this section actually reverses that to some extent - it authorises him to use those funds for the purpose of retaining legal counsel, but he needs to get license to do so.

Now, it's certainly arguable that depriving someone of their money is effectively depriving them of the right to legal representation, given that lawyers won't work for free - but this sort of thing has been going on a long time, with persons accused of dealing in drugs and so forth.

As for the assassination order, I think it's outrageous that people would be cool with non-citizens being killed but throw a hissy-fit just because someone holds a US passport. Surely the morality of an action applies to everyone, or nobody. As for me, I don't like the idea of assassination, although I suppose I'd rather have people killed selectively than indiscriminately. At least Anwar has a realistic option to surrender: as a US citizen (there's that morality again!) your country will actually allow him to have a trial rather than an indefinite stay in some extraterritorial gulag.
posted by Joe in Australia at 4:02 PM on August 3, 2010 [1 favorite]


The legal standard is not "markkraft disapproves of this behavior."

The rules count for everybody or they count for nobody. What you think or what anybody thinks about this guy or the things he has said is completely fucking irrelevant to questions of constitutional law.

The whole point of having the rule of law is that we don't make exceptions because we don't like this or that person or this or that class of people. The WHOLE POINT.
posted by zjacreman at 4:04 PM on August 3, 2010 [2 favorites]


"HELLO, SIR?! THIS IS MELVIN HERSCHWITZ OF THE ACLU! COULD YOU COME DOWN HERE FOR A BIT?"

Heh, the ACLU lawyer has a funny Jewish name. Damn ACLU and their Jewish lawyers, always defending criminals.
posted by Joe in Australia at 4:08 PM on August 3, 2010 [5 favorites]


Joe, if the government doesn't have any problem blowing him up from space as a citizen, I doubt they'd have any problem putting him in Guantanamo and through the military tribunal process if he did surrender.

After all, we can't put terrorism suspects in American prisons. Their kung fu is much too powerful, and it makes Republicans afraid.
posted by zjacreman at 4:08 PM on August 3, 2010


I have zero sympathy for this guy. But why can't we arrest him, try him for treason, and then kill him?

The following is stated in chillingly plain language in the Wikipedia entry for al-Awlaki:

By April 2010, U.S. President Barack Obama approved the targeted killing of al-Awlaki, as officials explained such a step was appropriate for individuals who posed an imminent danger to national security. That step required the consent of the United States National Security Council, and made al-Awlaki the first U.S. citizen ever to be placed on the CIA targeted kill list.

I'm not sure that's a Rubicon that ought to be crossed for anyone, no matter how despicable.
posted by snuffleupagus at 4:17 PM on August 3, 2010


Joe in Australia : As for the assassination order, I think it's outrageous that people would be cool with non-citizens being killed but throw a hissy-fit just because someone holds a US passport. Surely the morality of an action applies to everyone, or nobody.

It's not the morality of killing him, it's the legality. Or do you want the US to attempt to pass laws about what happens to Australians? Extrajudicial killing of citizens of other nation-states in the interest of national security is an act of war. Extrajudicial killing of US citizens in defense of national security is unconstitutional. That may make you uncomfortable, but I'd bet Australia has similar laws.
posted by snuffleupagus at 4:21 PM on August 3, 2010


Australian SAS targeted killings in Afghanistan: "Rare insight of SAS operations in Afghanistan" (lateline transcript)

You wouldn't feel any differently about that story if the targets had Australian citizenship?
posted by snuffleupagus at 4:26 PM on August 3, 2010


For the record, though, "Saving Anwar" is really fucking obnoxious.

Because al-Awlaki is Evil, I take it.


No. It's obnoxious because this isn't about him. This is about the rule of law and the rights that people like him would deny the rest of us. And acting like he's just folks that needs savings smacks of the same sort of short-sighted confused objectives that leads to Che t-shirts. Making him the face of this issue is like Jane Fonda being the face of the anti-war movement. It not only undermines your point, both are done in a truly insulting way. I have huge problems with denying this man access to counsel and to act like that's hand-in-glove with "saving" this jackass is nauseating. I don't want him saved. I want horrible things to happen to him, but in a legal way, whether on a battlefield or in a courtroom.
posted by spaltavian at 4:28 PM on August 3, 2010 [1 favorite]


If he wants to ask the courts for an injunction let him come and stand before them.
posted by humanfont at 4:32 PM on August 3, 2010


Obama lied about what he was going to do when he got into office. Now blowing holes into the Constitution? I consider this impeachable.
posted by parallax7d at 4:33 PM on August 3, 2010


"if the government doesn't have any problem blowing him up from space as a citizen, I doubt they'd have any problem putting him in Guantanamo and through the military tribunal process if he did surrender."

Of course, your point is moot if he opted to surrender to all manner of other countries, as many of them would insist that he have access to his legal rights, either in the US or in some kind of international court. Most European nations would sooner send him to the Hague than to Guantanamo at this point... and frankly, President Obama does not want to send new prisoners to Guantanamo. He's still doing his level best to find places willing to take the few remaining prisoners in, since his own country decided that it was more cowardly about such things than Luxembourg, Cape Verde, or Palau.
posted by markkraft at 4:37 PM on August 3, 2010


If he wants to ask the courts for an injunction let him come and stand before them.

Is that supposed to be a serious suggestion, humanfront? The government has decided to kill him without due process, and you want him to stroll into a Federal court and say "please don't?"
posted by snuffleupagus at 4:42 PM on August 3, 2010 [1 favorite]


...eventually elements of the government will try to put citizens INSIDE THE USA on this "no legal representation for you" list.

Someday is today, at your Immigration and Customs Enforcement department:
Immigration officials detaining, deporting American citizens

Pedro Guzman, a mentally disabled U.S. citizen who was born in Los Angeles, was serving a 120-day sentence for trespassing last year when he was shipped off to Mexico. Guzman was found three months later trying to return home. Although federal government attorneys have acknowledged that Guzman was a citizen, ICE spokeswoman Virginia Kice said Thursday that her agency still questions the validity of his birth certificate.
. . .
Unlike suspects charged in criminal courts, detainees accused of immigration violations don't have a right to an attorney, and three-quarters of them represent themselves.
. . .
"The burden of proof is on the individual to show they're legally entitled to be in the United States," said ICE spokeswoman Kice.
US Citizens Wrongly Detained, Deported by ICE
. . .
Veloz is one of hundreds of U.S. citizens who have landed in the custody of U.S. Immigration and Customs Enforcement and struggled to prove they don't belong there, according to advocacy groups and legal scholars, who have tracked such cases around the country. Some citizens have been deported.
. . .
Immigration detainees are routinely shipped to remote jails where free legal aid is unavailable, their families are not notified of their whereabouts, and they are often denied access to telephones, mail and even medical care, according to a March report by Amnesty International and several federal audits.
posted by Kirth Gerson at 4:52 PM on August 3, 2010 [5 favorites]


So the US Government will never order the killing of US Citizens without a trial because it's not happening right now? Are you really saying that?

No. I am saying it's a huge leap to make from "This is happening in this one instance right now" to "This could happen to YOU." A huge and ridiculous leap.

Also... yes. I'm going to go ahead and say that killing of US Citizens without a trial as "policy" is something that not even Dick Cheney is going to get behind. I'm not saying it will never happen ever, I'm saying that trying to push this as policy is unimaginable from a political and practical point of view. The repercussions for such a thing - as stated policy - would be staggering, not just for our own political system, but for our foreign policy as well. If we honest to G-d did that - ordered the killing of US Citizens without a trial, and without just cause (I personally consider the CIA terrorist list to be "just cause" and if you don't agree, that's your prerogative. And no, I don't think they should be killed, but I'm not in the CIA and I don't know what the options actually look like.) - well, I wouldn't blame any foreign power for declaring war. I'd pretty much expect it.

OR...


Not everything is a step along an inevitably progressing continuum. It is often worthwhile to look down the road and understand what the negative consequences could be at the end of the road. The subtle and difficult thing is to figure out where/why any particular place on the continuum becomes unacceptable and what can keep you above that without sacrificing acceptable or even positive segments of it.

I don't think there's a good argument that al-Awlaki is a great guy who's falsely accused and doesn't deserve to be treated like an enemy of the state. This specific case appears to be fine. The question is how to make sure it doesn't get beyond cases like this while allowing us to act in cases like this.


What he said.
posted by grapefruitmoon at 4:55 PM on August 3, 2010


Extrajudicial killing of US citizens in defense of national security is unconstitutional

I think you have to prove all of those adjectives. Is it your legal opinion that American citizens are entitled to constitutional due process everywhere in the world? The problem is, neither the constitution itself or the cases say that. Therefore, the killing would not be "extrajudicial." It would be war. Furthermore, the states in which these killings are taking place are consenting, therefore they are not acts of war. The problem is that the constitution doesn't say the things you think it says.
posted by Ironmouth at 5:10 PM on August 3, 2010


Is it your legal opinion that American citizens are entitled to constitutional due process everywhere in the world?

If Americans were not entitled to protection outside the United States, American embassies would probably not waste time on that part of their mission.
posted by Blazecock Pileon at 5:23 PM on August 3, 2010 [2 favorites]


It would be war.

Can it be war if you can't declare it on a sovereign nation?
posted by IndigoJones at 5:34 PM on August 3, 2010 [1 favorite]


Can we dismiss the false analogy that an airstrike on a building in a foreign country is the same as a cop shooting some guy who draws a gun on him?

In the United States, the Police don't have the right to kill you because you are TALKING about killing people, or PLANNING to kill people. They only retroactively have the right to kill you if you are determined, by a later hearing, to have been intent on immediately, directly harming another person. The police can't shoot you because you threatened to kill someone. They can't shoot you because you just got done killed someone. The Police can't shoot you because you paid to have someone killed. The police can't shoot you because you handed somebody a gun 2 months ago and gave them specific instructions on who to kill with it.

We are discussing the murder of a person because he openly encouraged others to commit criminal acts and ALLEGEDLY gave support to them to further their criminal activity.
posted by Megafly at 5:35 PM on August 3, 2010 [2 favorites]


markkraft: Assuming, of course, that any of us would praise a US soldier that killed 12 fellow soldiers and wounded 31 others, and then use his religious authority to say that under no circumstances should any American Muslim serve in the military... unless it was their goal to do exactly the same thing.

That's just vile. The death penalty for expressing an opinion? It's okay to shoot people who disagree with you, or who think that the greater group is acting in a bad way?

Criminalizing opinion is the ultimate in slippery slopes, because there just isn't a spot where you can stop. It's very easy to draw a bright line on 'opinion isn't criminal', but once some opinions become crimes in and of themselves, they're all fair game. How long until they start shooting Greenpeace on sight? How long until they start shooting liberals?

We've seen this kind of society before. They're all over the world. Iran, Burma, Saudi Arabia, North Korea.

We're supposed to be different.
posted by Malor at 5:42 PM on August 3, 2010 [2 favorites]


No. I am saying it's a huge leap to make from "This is happening in this one instance right now" to "This could happen to YOU." A huge and ridiculous leap.

It IS happening to me. That man, whatever his opinions are, is a fellow citizen, and wrongs that are done to him are wrongs that are done to me. Maybe he does deserve the death penalty, but we have a court system for that.

All they have to do, once this sort of thing is routine, is to start smearing you for awhile in the news. They just have to make some big, loud assertions about all the evil you're up to, without having to prove a damn thing, and then they can have you executed.

We don't know that Mr. Awlaki is a terrorist. All we know is that the government SAYS he is, but it makes mistakes and outright lies all the goddamn time. That's what courts are for. Once we've proven it, before a jury of his peers, THEN we can impose a penalty.

It might just be that Mr. Awlaki is an asshole and was insufficiently subordinate to some investigator somewhere. We've seen the casual thuggery by the police and the petty malice by TSA goons. This is a country with lots and lots of Sheriff Joes out there. (Joe Arpaio, if you need to look him up; prepare to be horrified.)

Do you really want Sheriff Joe to be able to kill anyone he wants, just on his say-so?

How do you know that there isn't a Sheriff Joe who has a hardon for Awlaki because he hates the guy's religion or opinions?
posted by Malor at 5:51 PM on August 3, 2010 [2 favorites]


I have zero sympathy for this guy. But why can't we arrest him, try him for treason, and then kill him?

Because we don't live in a movie.

Capturing a smart and well protected individual in another country is exceedingly hard to do.

I don't think even Anwar Al-Awlaki himself would deny he's engaged in Treason against the United States. The penalty called out in the Constitution (223 years ago) for this High Crime is death.

If we can't capture him, what should we do? Send him a strongly worded email?
posted by Argyle at 5:55 PM on August 3, 2010 [1 favorite]


Treasury to allow al-Awlaki lawsuit.
posted by Manjusri at 5:57 PM on August 3, 2010 [3 favorites]


Malor, you are forgetting that you and I fundamentally agree. This guy should absolutely 100% be brought to court and tried with the right to an attorney. Absolutely.

The ONLY point at which we disagree is that I don't believe that he's completely innocent and that this was a government smear job. If it can be proven that it is - that the government outright lied about his involvement in terrorism - I will retract my statements that I believe, given the evidence that I have, that the charges against him have merit.

But we absolutely DO agree that this needs to be decided in court.
posted by grapefruitmoon at 5:58 PM on August 3, 2010


"That's just vile. The death penalty for expressing an opinion? "

...which is basically what OBL was initially accused of, btw.

Of course, like Bin Laden, there's evidence to suggest that this guy helped fund, recruit, and train jihadis too.

You seem to believe that "expressing an opinion" should always be protected free speech, if that opinion is that people should kill other people.

Of course, sometimes that is a major criminal act in itself... but perhaps you're not familiar with law?
posted by markkraft at 6:04 PM on August 3, 2010


I think it probably wasn't a smear job either, but I don't know that. But if, as it appears, the case hinges purely on opinions he holds, rather than concrete actions he's taken, it wouldn't stand in court. That may be why they're trying to kill him without bringing a court case.

And I, for one, am absolutely opposed to killing anyone based on unproven assertions. That's not how we do it here. Even the slimiest, scummiest, most horrible of people have rights.

Remember, it's only when the government hates you and wants you imprisoned or dead that you actually NEED your rights. If only popular people get them, they're a feel-good sham that aren't there when they actually matter.
posted by Malor at 6:08 PM on August 3, 2010


Anyone who thinks this is a government smear job / conspiracy against a rugged individualist a Muslim's freedom-of-speech and that the fact that he's a potential target means that all the rest of us are vulnerable too... without noting the fact that the US government is applying the same law regarding this guy as they applied with OBL, Saddam, all the other terrorists they've gone after, because, after all, the law regarding this *IS* the same, while ignoring the fact that he's not even the first US-born terrorist the CIA has had killed...

Well, what's the nice way to say that you're being xenophobic by judging that the law should be any different regarding this guy than vs. any other terrorist we have capture / kill orders out for, and that you're basically drinking the same kind of nutty conspiracist koolade that the right wing militia movement did/does after Waco and Ruby Ridge?

There's no cause to go after the guy... unless you count being wanted by the US, declared a dangerous terrorist by the UN, wanted by Interpol, wanted by the Yemeni government, etc.

You care about guaranteeing a jail breaking terrorist's legal rights... but only if they're an American terrorist, in which case they should always be miraculously detained and publicly tried first, even if they're evading justice, and shouldn't be killed, even if caught hanging out with other known terrorists, in which case we should absolutely not target any of them lest we violate their rights?!

Really?!?
posted by markkraft at 6:37 PM on August 3, 2010


*BOOOOM!*

"Oh my God! The whole building's collapsed! All those people..."

"Hey? Who's that running away? Hey you, STOP! We'd like to talk to you."

"Um... he doesn't appear to be stopping."

"Well, maybe he didn't hear you above his footsteps. Perhaps you should shout louder..."

"STTTOPPP! Okay he stopped, but he looks brown and surly. Well, I'm pretty sure he's a terrorist."

:nods:

"Right on! Case closed. Frank, you wanna get this one?"

*BLAM!*
posted by LordSludge at 6:53 PM on August 3, 2010 [1 favorite]


But if, as it appears, the case hinges purely on opinions he holds, rather than concrete actions he's taken, it wouldn't stand in court.

I don't understand this. What I'm reading suggests there's evidence that he was involved in several terrorist attacks in a number of capacities. And that he's continuing these activities now. What are you reading that suggests this is merely an expression of opinion? And protected opinion, at that, rather than arguably treasonous speech?

as it appears, the case hinges purely on opinions he holds, rather than concrete actions he's taken, it wouldn't stand in court. That may be why they're trying to kill him without bringing a court case.

Again, what I'm reading suggests a different state of affairs: that law enforcement tactics aren't off the table, but that they're looking intractable, and meanwhile, the specific crimes he's allegedly engaging in aren't just unpopular and make governments "mad" at you, they fit the description of activities which might inspire even a reasonable executive to bring to bear constitutional warmaking/defense powers. Particularly when it looks like we're talking about someone who is operating well outside the jurisdiction of the usual criminal process.

So, there's three tacks you can take when confronted with the tension that exists here. Two of them are essentially the same in many respects: you reject the idea of tension between good values, and instead believe in an absolute hierarchy of values, where some are always subservient to another, no exceptions ever. You pick your champions: you're either TEAM CIVIL RIGHTS or TEAM NATIONAL SECURITY. People who pick the other side are evil and destroying society and you can't believe it because they're as big a threat (if not bigger) as the terrorists.

The third tack? That's harder work. And imperfect, to boot, because it involves compromise, and that's just unamerican, right?
posted by weston at 6:53 PM on August 3, 2010


Wow, I just vomited everywhere, again!
posted by Gamien Boffenburg at 7:10 PM on August 3, 2010 [1 favorite]


Can it be war if you can't declare it on a sovereign nation?

Sure. We could quibble about the Barbary Wars and whether the various Barbary states were sovereign nations or nonsovereign subdivisions of the Ottoman Empire. But for damn sure the Civil War was war, and from the point of view of the US it was emphatically not against a sovereign nation because that sovereign nation could not exist to make war upon.

he's engaged in Treason against the United States. The penalty called out in the Constitution (223 years ago) for this High Crime is death.

There's no punishment specified in the Constitution. Only that Congress sets it within a few restrictions.
posted by ROU_Xenophobe at 7:44 PM on August 3, 2010


...a 39 year old American citizen born in New Mexico.

And that's the problem with dual citizenship, because the argument can be made that we are targeting only a Yemeni terrorist outside of the US, and stressing his American citizenship for him is special pleading his case.
posted by Brian B. at 7:47 PM on August 3, 2010


["Saving Anwar" is] obnoxious because this isn't about him. This is about the rule of law and the rights that people like him would deny the rest of us. And acting like he's just folks that needs savings smacks of the same sort of short-sighted confused objectives that leads to Che t-shirts. Making him the face of this issue is like Jane Fonda being the face of the anti-war movement.

No, this actually is about him. A human being. A man. A father's son. A countryman. Who, until he is convicted after due process, is, by the presumption of the law you claim to care about, a completely innocent man. Is your eagerness to see "horrible things" visited upon him so great that you can't see this?

Tell you what. If the government will take the small trouble to establish what is, judging from your comments, al-Awlaki's overwhelmingly obvious guilt, I promise to let you gloat over his execution as much as you want.
posted by Joe Beese at 8:25 PM on August 3, 2010 [2 favorites]


Osama bin Ladin has also not been tried in court. So I won't hear anyone say anything mean about him!
posted by shakespeherian at 8:30 PM on August 3, 2010


Nor has Hitler, Mao, Andrew Jackson, Stalin, Atilla the Hun, Obama and the U.S. military and intelligence services, they are human beings that are presumed innocent until convicted after due process, and no one is rightly capable of holding an negative opinion of them, believing that they have committed crimes, and believing that certain punishments and sanctions should befall them because of said unproven crimes.
posted by Snyder at 8:38 PM on August 3, 2010


A human being. A man. A father's son. A countryman. Who, until he is convicted after due process, is, by the presumption of the law you claim to care about, a completely innocent man.

Assassination is not a judicial punishment imposed upon a criminal; it's justified by the same arguments of necessity that justify acts of war. Although I would much rather that nobody die prematurely I recognise the force of the utilitarian argument which says that war and assassinations are justified when they are better than any alternative.
posted by Joe in Australia at 8:46 PM on August 3, 2010 [2 favorites]


Snuffleupagus wrote: Australian SAS targeted killings in Afghanistan: "Rare insight of SAS operations in Afghanistan" (lateline transcript)

You wouldn't feel any differently about that story if the targets had Australian citizenship?


No. If killing an Afghani bombmaker is justifiable then killing an Australian bombmaker is justifiable, given the same circumstances. What, he should be allowed to kill noncombatants just because he was born in Bondi?
posted by Joe in Australia at 8:52 PM on August 3, 2010


Who, until he is convicted after due process, is, by the presumption of the law you claim to care about, a completely innocent man.

Only the government is under an obligation to presume people innocent. I'm under no such obligation.
posted by empath at 9:13 PM on August 3, 2010


Is that supposed to be a serious suggestion, humanfont? The government has decided to kill him without due process, and you want him to stroll into a Federal court and say "please don't?"

Are you suggesting that the protection of the court is meaningless? Then why bother to have a lawsuit at all. The judicial branch is seperate and co-equal to the executive branch.

Alwaki has not chosen to pursue his complaints against the United States using the rights afforded to him as a US citizen. He has apparently decided to join with AlQaeda and play a leading role in armed struggle against the United States and its allies. The result of this is that the JSOC has placed him on a list of enemy leaders to be captured or killed; which is an appropriate military response to a military threat. It is believed he provided leadership in two recent attacks (the incident on the Northwest Airlines flight and the attack on Ft. Hood). His status as a US citizen has no bearing here because this is not a criminal punishment. It is a military objective. If he were to present himself to a US court, or a foreign consulate with a formal request for asylum; then he could move beyond the realm of the battlefield.
posted by humanfont at 9:47 PM on August 3, 2010 [1 favorite]


On one hand, we have this man, who might have given terrorists encouragement to kill three thousand of Americans.

On the other hand, we have some well-known American officials, who lied and cheated to start a war that killed at least five thousand Americans and hundreds of thousands of other people.

Moreover, this same group of American officials has a dire history - in a previous incarnation in the 80s, the same group started various wars, again based on lies deliberately made up and spread, that killed tens of thousands of people.

Why is it perfectly OK to kill this man and not those officials?
posted by lupus_yonderboy at 10:11 PM on August 3, 2010 [4 favorites]


Can it really be the case that so many of you fail to understand that the same rights that protect this man who might be a criminal also protect you too?

"What would you do? Cut a great road through the law to get after the Devil? ... And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man's laws, not God's, and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety's sake!"

After ten years of endless lies by the government, lies about the Iraq war, lies about the culpability of prisoners in Guantanamo, lies about war atrocities committed by Americans, how can so many of you just believe unquestioningly what the government says - to the point where you're willing to allow the government to kill on their uncorroborated say-so?
posted by lupus_yonderboy at 10:36 PM on August 3, 2010 [3 favorites]


Empath, I didn't know the discussion was about you personally going to Yemen to kill this guy. How did I miss that?
posted by zjacreman at 10:40 PM on August 3, 2010 [1 favorite]


Assassination is not a judicial punishment imposed upon a criminal; it's justified by the same arguments of necessity that justify acts of war.

Those same arguments of necessity justified the Iraq war - which led to hundreds of thousands of deaths of innocent people who never offered any American (or Australian) any harm.

Your argument is morally and ethically bankrupt. And as a practical suggestion, it's massively stupid.

If the US wanted to prevent terrorism, making a big deal about assassinating one individual is grossly counterproductive, particularly when this individual is part of a group that reveres martyrs.

If the US government were the slightest bit interested in actually stopping terrorism, the easiest way to start would be to stop wasting trillions of dollars killing innocent foreigners who have never done us any harm - it's not just that we wouldn't have all those tens of millions of people who have had family or close friends murdered by America who have ever reason to wish that country harm, but we could use those trillions to, you know, actually defend the country, exhaustively search container ships, put chemical sniffers in airports and that sort of thing.

I don't personally believe that the US government has the slightest interest at all in stopping terrorism. After the USSR collapsed, they were desperate for a new enemy - now they've found one and this one is going to last for the rest of time, or until the US collapses from within.
posted by lupus_yonderboy at 10:53 PM on August 3, 2010 [4 favorites]


Treasury to allow al-Awlaki lawsuit.

Treasury now thinks it has the power to interfere with the operations of the judicial branch? How droll.
posted by one more dead town's last parade at 11:09 PM on August 3, 2010


His status as a US citizen has no bearing here because this is not a criminal punishment. It is a military objective.

Fascinating argument! You seem to be claiming that a "military objective" trumps the Constitution and all other law! (Wait, isn't this exactly what a military dictatorship is?)

We've been warned by both parties that this "war" against terrorism will last forever. So it seems to me that you're saying that the US military can simply decide at any time to kill anyone, anywhere, for any reason or none at all, as long as it's part of some "military objective", and there is nothing anyone can do about it.
posted by lupus_yonderboy at 11:10 PM on August 3, 2010 [3 favorites]


Yeah, I mean, if this guy did everything that the gov't is alleging, then I'm fine with us shooting him.
If only there were some kind of process to figure out, beyond a reasonable doubt, if he had done these things.
posted by brevator at 4:05 AM on August 4, 2010


striatic: "you really don't want to go to war with yemen just to make them let you arrest him."

Why not? It was what we did in Afghanistan.
posted by brokkr at 4:53 AM on August 4, 2010


I promise to let you gloat over his execution as much as you want.

I am against the death penalty in all cases. You're batting zero on all of the insulting assumptions you've made about me, by the way.
posted by spaltavian at 5:17 AM on August 4, 2010 [1 favorite]


humanfront: Are you suggesting that the protection of the court is meaningless? Then why bother to have a lawsuit at all. The judicial branch is seperate and co-equal to the executive branch.

I'm not sure what you're saying here, but the point is that it would be objectively foolish to enter the US while the government is willing to simply kill him.


Alwaki has not chosen to pursue his complaints against the United States using the rights afforded to him as a US citizen. He has apparently decided to join with AlQaeda and play a leading role in armed struggle against the United States and its allies. The result of this is that the JSOC has placed him on a list of enemy leaders to be captured or killed; which is an appropriate military response to a military threat....


I'm not sure I'm comfortable with that, as I stated above. No one is confused about what the facts are. Are we going to assasinate Adam Gadahn too? I'm just inherently uncomfortable with the abrogation of a citizen's civil rights by secretly designating them a militant dissident by the military, intelligence services, executive or the legislature. The same logic, stretched a little further, could have been used to advocate the assasination of, say, Malcolm X or the leadership of the Black Panthers (to cherry pick an example.)

I'd be much more comfortable with trying him for conspiracy, terrorism and treason and then killing him.

Note that we captured John Walker Lindh on a battlefield--and he got due process.

Since you have such a boner for swaggering military talk, I don't see why this can't be a snatch and grab operation. If the Mossad could grab Eichman, JSOC or CIA can grab this guy.
posted by snuffleupagus at 6:00 AM on August 4, 2010


brianb:the argument can be made that we are targeting only a Yemeni terrorist outside of the US, and stressing his American citizenship for him is special pleading his case.

That's not special pleading. Actually, what you're doing is special pleading: you want to disregard one of his acknowledged citizenships and rely on the most favorable, without any justification for doing so. (Although I'm wondering if there might not be some way to strip him of his citizenship--along the lines of serving in a foreign military without permission.)
posted by snuffleupagus at 6:09 AM on August 4, 2010


favorable to your position, that is.
posted by snuffleupagus at 6:09 AM on August 4, 2010


Why is it perfectly OK to kill this man and not those officials?

If we're in a war, the other side is perfectly within it's rights to try.

One of the reasons I'm not super fond of the whole 'war on terror' idea.
posted by empath at 6:13 AM on August 4, 2010 [1 favorite]


Note that Gadahn has been indicted for treason and placed on an international wanted list (presumably instead of being targeted for assasination.)
posted by snuffleupagus at 6:22 AM on August 4, 2010


Actually, what you're doing is special pleading: you want to disregard one of his acknowledged citizenships and rely on the most favorable, without any justification for doing so.

From your link:

From a philosophic standpoint, the fallacy of Special Pleading is violating a well accepted principle, namely the Principle of Relevant Difference. According to this principle, two people can be treated differently if and only if there is a relevant difference between them.

In my case as well as most others, we don't have dual citizenship, nor do we have it in a hostile state. Clearly there is a relevant difference, adjudicated or not. There is no free pass for duality outside of the US in hostile situations, or duality would be a foreign luxury.
posted by Brian B. at 7:02 AM on August 4, 2010


One of his Constitutional protections that you claim to be in full support of is presumption of his innocence. Until you have a legal finding to say otherwise, an "innocent victim" is exactly what he is.

no. One can make the arguement that procedurally he has not been found guilty. However, you can't call a policeman shooting an armed workplace shooter an "innocent victim" no more than you can call this guy, who is putting out calls for persons to attack known innocents living in the United States as an "innocent victim."

There's a whole pile of disengenousness in leaving that part out like it was in the post above. You can argue it's wrong to treat a US citizen as an enemy rather than a suspect in a crime, but not revealing the facts of the matter in the hopes that people won't figure it out and think the US is targeting a person with no known connection to terrorism in order to inflame them is Hannity-style argumentation.

Some people think we ought to go after the right with their own tools of lies and deceit. To them I say you admire evil too much.
posted by Ironmouth at 7:30 AM on August 4, 2010 [2 favorites]


His status as a US citizen has no bearing here because this is not a criminal punishment. It is a military objective.

Fascinating argument! You seem to be claiming that a "military objective" trumps the Constitution and all other law! (Wait, isn't this exactly what a military dictatorship is?)


Again, where does the Constitution and the relevant case law say that a US citizen actively acting as an enemy of the United States in a foreign land is entitled to due process? I have yet to see the argument.
posted by Ironmouth at 7:33 AM on August 4, 2010 [1 favorite]


Can it really be the case that so many of you fail to understand that the same rights that protect this man who might be a criminal also protect you too?

Again, support your argument with actual legal arguments showing that the gentleman is entitled to due process protection. Just because you believe it is so does not make it true.

Because I think the issue has already been decided against your point. Take, for example, the Prize Cases, 67 U. S. 635 (1862) which found that blockade runners owned by US citizens and foreigners could be seized without due process of law as prizes.

There are many others. I have contacted John C. Dehn, the author of a paper on this very subject to obtain his permission to link to his paper (he expressly reserves all rights, including citation). When he gets back to me, I will give you a better idea of the case law in this area.
posted by Ironmouth at 7:53 AM on August 4, 2010


Again, where does the Constitution and the relevant case law say that a US citizen actively acting as an enemy of the United States in a foreign land is entitled to due process? I have yet to see the argument.

The Fifth Amendment of the US Constitution states that a US citizen is entitled to due process. It does not mention "enemies of the United States" or "a foreign land". I believe the ball is in your court if you're claiming that another part of the Constitution or case law somehow renders that Amendment moot.

Let me reinforce that this man is an alleged enemy of the United States. Because we live in a free country, there is the presumption of innocence. If the government could suspend an individual's Constitutional rights without due process by simply labelling that person "enemy" the Constitution would be worthless, wouldn't it?
posted by lupus_yonderboy at 8:15 AM on August 4, 2010 [1 favorite]


take, for example, the Prize Cases, 67 U. S. 635 (1862).

Perhaps you posted the wrong link, but this seems to refer to seizing property and not incarcerating or killing citizens.

I fail entirely to understand why this has any relevance whatsoever to the current case. You do not have Constitutional rights against the government taking your property or money, as evinced by numerous examples such as eminent domain, confiscation of drug money and even collection of taxes.
posted by lupus_yonderboy at 8:22 AM on August 4, 2010


I'm not sure what you're saying here, but the point is that it would be objectively foolish to enter the US while the government is willing to simply kill him.

According to the published report he is on a capture or kill list. Note that capture is a specific option. Why would it be foolish? He could alternatively go to Switzerland or the Swiss embassy and contest his extradition from there. This would place him under a court with a specific legal process, the outcome of which would enable him to seek the relief of the courts.
posted by humanfont at 8:24 AM on August 4, 2010


humanfont: if you knew this man and believed he were innocent, would you (honestly) suggest the course of action you are describing?

I should add that I'm not arguing that this man is innocent - but the US government's track record in such matters is so dismal that any claims they make should be viewed with the deepest of suspicion. This very government under Mr. Bush tortured to death men, some of whom who were known by them to be innocent; this same government under Mr. Obama has indicated his intention to hold men captive, some of whom are known to be innocent, for the rest of their lives.

The Constitution protects us from the government. And this is very rational. More Americans have died needlessly due to the actions of their own government since the "War" on Terror than have been killed by all "terrorists" put together.
posted by lupus_yonderboy at 8:42 AM on August 4, 2010 [1 favorite]


You do not have Constitutional rights against the government taking your property or money, as evinced by numerous examples such as eminent domain, confiscation of drug money and even collection of taxes.

Really?
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 offense 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
Obviously, the Fifth Amendment protects property. My job is defending people's Fifth Amendment rights to due process in their property.

You are making things up, Sir. You do not know the law, nor do you make an effort to do so. It is difficult to argue rationally with a person who refuses to review the law on the very points they are making.

How about In re: Quirin? A unanimous Supreme Court held that an American Citizen named Haupt, who was a citizen, captured in the act of espionage on the soil of the United States in the service of Nazi Germany did not have the Fifth Amendment right to a trial by jury. If Quirin is true then how can it be that this gentleman has the rights you say?

This is the law. It doesn't say what we wish it says. It says what it says and that is interpreted by courts. This is how our system works.
posted by Ironmouth at 8:48 AM on August 4, 2010


This is the law. It doesn't say what we wish it says. It says what it says and that is interpreted by courts. This is how our system works.

You are making things up, Sir. You do not know the law, nor do you make an effort to do so. It is difficult to argue rationally with a person who refuses to review the law on the very points they are making.

[...]
This is the law. It doesn't say what we wish it says. It says what it says and that is interpreted by courts. This is how our system works.

I have not "refused to review the law" - I immediately read your case example and responded to it. Nor does one misstatement regarding the Fifth Amendment mean that I "do not know the law". I am perfectly aware that law is a combination of written law and case law and have not said one word to the contrary. And I am certainly not "making things up" - we call that "lying".

I would ask you to keep a civilized tongue in your mouth when you discuss something with me. I will not be talked down to and insulted. And I will absolutely not be called a liar.
posted by lupus_yonderboy at 8:57 AM on August 4, 2010 [1 favorite]


brianb: No. You don't get to disregard his dual citizenship without presenting a (logical) argument for doing so (if you want to rely on logic and point out fallacies.) That's what 'special pleading' means in this circumstance. Dual citizenship is a well recognized status under international law--you need to justify ignoring his American citizenship in this context. In other words, you need to present an argument for why he should be treated differently than other American members of Al Qaeda who have been arrested tried and imprisoned rather than assassinated. You could attack the continued validity of his citizenship (I'd probably be with you there, but would still expect some kind of process for and notice of that action) and suggest that relying on it is failed pleading, but pointing it out is not special pleading. Disregarding it without justification is. However, this isn't alt.atheism and we should probably just let it go and not derail the thread by nitpicking fallacies etc.

Joe in Australia: No. If killing an Afghani bombmaker is justifiable then killing an Australian bombmaker is justifiable, given the same circumstances. What, he should be allowed to kill noncombatants just because he was born in Bondi? No, but perhaps his own government ought not to be able to ignore his citizenship and attendant rights because he engaged in a form of murder and criminal conspiracy known as "terrorism." Terrorism is a crime, and so is treason. Why does it justify or require a military response, when by the virtue of one's citizenship one can be subjected to the rule of law and be brought to account? The real argument here, in my view, is the utilitarian one: he must be killed to prevent him from committing acts so heinous that we have a greater moral (and possibly legal) duty to prevent them than protect due process. Now that may be valid, but it should make us all very nervous.

Ironmouth:
I believe the question is, does the due process clause of the 5th amendment reach into foreign states and protect U.S. citizens in the position of the gentleman so targeted.
...
"Extrajudicial killing of US citizens in defense of national security is unconstitutional"
I think you have to prove all of those adjectives. Is it your legal opinion that American citizens are entitled to constitutional due process everywhere in the world? The problem is, neither the constitution itself or the cases say that. Therefore, the killing would not be "extrajudicial." It would be war. Furthermore, the states in which these killings are taking place are consenting, therefore they are not acts of war. The problem is that the constitution doesn't say the things you think it says.
...
How about In re: Quirin? A unanimous Supreme Court held that an American Citizen named Haupt, who was a citizen, captured in the act of espionage on the soil of the United States in the service of Nazi Germany did not have the Fifth Amendment right to a trial by jury. If Quirin is true then how can it be that this gentleman has the rights you say?

This is the law. It doesn't say what we wish it says. It says what it says and that is interpreted by courts. This is how our system works.


I am not a lawyer (and won't be for a good while--and this is way beyond my areas of familiarity as a paralegal) so no, that is not my legal opinion. It is my political, philosophical and civic opinion, if you will. I'm also wondering what the laws and cases that were brought up during the Jose Padilla affair have to say about all this.

I'm not sure about cases and other federal law (and I'd love to know more) but I'm fairly sure that the Fifth Amendment doesn't say anything about being applicable only when the citizen at question is within the boundaries of the Unites States.

(On preview -- I had the text of the Fifth here, but Ironmouth took care of that. I have not read Quirin, but I did see it discussed in the Padilla material. )

At any rate, let's take a look at what's been done with other American Al-Qaeda members [wiki]:

Anwar al-Awlaki -- targeted for assassination.

Jaber A. Elbaneh (Yemeni American) -- Tried in absentia in US District Court. Tried in absentia by Yemen for for terrorist acts there, and imprisoned for ten years by Yemen in 2007.

Adam Gadahn -- indicted, wanted by FBI.

Wadih el-Hage (Lebanese American) -- serving life without parole in a Colorado supermax prison for the embassy bombings.

Ziyad Khaleel (Palestinian American) -- believed to be deceased...? (see pg 7) According to wiki, the link that led investigators to al-Awlaki.

Sharif Mobley -- Likely to be tried in Yemen for crimes committed there.

Ali Mohamed -- CIA double agent, arrested for role in embassy bombings. Pleaded guilty. Current status unknown--wiki cites speculation he may be working for the government again.

Jose Padilla -- currently serving 17 years, and as some may recall was at the center of a great deal of controversy about the designation of American citizens as enemy combatants and the potential for their indefinite imprisonment without trial.

Bryant Neal Vinas -- Captured in Pakistan in 2008 by US troops cooperating with agencies tracking him. Turned over to the FBI. Pleaded guilty to providing material support to Al Qaeda, reported to be in the custody of the US Marshals as of 2009.


As mentioned there are cases about the legality of assigning enemy combatant status to US citizens (see the Padilla wiki page for somewhere to start) that are probably relevant, and I'm sure generally speaking there's some pretty complicated case-law around all of this that I'm ignorant of. Still, this feels wrong to me.
posted by snuffleupagus at 9:00 AM on August 4, 2010 [1 favorite]


Lisa: "You, sir, are a baboon!"
Homer: "She called me a baboon! The stupidest, ugliest, smelliest ape of them all!"
posted by chunking express at 9:01 AM on August 4, 2010


Quirin is an awful case, an example of a precedent that technically has not been overruled but is highly discredited by fact and history (see also Buck v. Bell, for a case in that category, although at least that one has been thrown into a bit of disarray by later jurisprudence).

Even if Quirin is good law, it involves two critical distinguishable facts: 1) all defendants were German citizens (your assertion that Haupt was an American citizen by naturalization was disputed in Quirin and played no part in the decision of it); and 2) the prosecution (not extrajudicial killing, although the executions had happened by the time the decision was rendered) was on the basis of articles of war voted on by Congress as part of the Declaration of War and thus authorized by legislation, not executive fiat.

Finally, I guess it may be self evident, but at least Quirin was about which court could try the defendants: military tribunals or the US Court system, by way of their habeas petition. That the Court decided (on the basis of questionable facts and law) does not settle whether an enemy combatant, who is an undisputed US Citizen, has his Constitutional rights abrogated by labeling him a "Designated Global Terrorist".
posted by norm at 9:04 AM on August 4, 2010


Ex Parte Quirin, full text.
posted by norm at 9:08 AM on August 4, 2010


I have not called you a liar. But you have repeatedly asserted, without foundation, that the Fifth Amendment applies to the gentleman in question. You read my case example after you made the raw assertion that the Fifth Amendment does not apply to property rights.

Here's what I'm trying to do: Point out to you that your bald assertion that the Fifth Amendment gives this man due process rights when he is doing things outside of the United States which are arguably acts of war against the United States is not supported by the law. I know you believe it to be so. But the law and the Constitution are far more complex than you make it out to be. Your position is arguable, certainly. But you refuse to accept that the position that others hold is also arguable.

This is known as the extraterritorial application of the constitution. And the answer is yes, no and sometimes. You'd be surprised at the myriad different application of the Constitution overseas. It is a highly complex matter, and you can't just say it does or does not exist.

I have not accused you anywhere of being a liar. I said you didn't look up the law, and you essentially admitted that you hadn't when you said the Constitution did not provide due process rights becasue of issues like eminent domain and the like. The answer is it does and a simple consultation of the Amendment you were championing would have told you that. I'm not trying to be mean, I'm trying to help you flesh out your position with more than bald assertions.
posted by Ironmouth at 9:12 AM on August 4, 2010 [1 favorite]


However, you can't call a policeman shooting an armed workplace shooter an "innocent victim" no more than you can call this guy, who is putting out calls for persons to attack known innocents living in the United States as an "innocent victim."

What precedent allows execution without trial of members of a conspiracy to commit murder?
posted by one more dead town's last parade at 9:18 AM on August 4, 2010


Hamdi v. Rumsefeld (even Scalia's dissent concedes that Quirin was "not this Court's finest hour.")
posted by norm at 9:20 AM on August 4, 2010


Regardless of whether this is permitted by U.S. law, if actual extrajudicial executions in foreign territory become commonplace, some members of the hit squads are going to be caught, and may very well spend the rest of their lives thereafter in custody, because they will be breaking applicable murder laws.
posted by one more dead town's last parade at 9:26 AM on August 4, 2010


all defendants were German citizens (your assertion that Haupt was an American citizen by naturalization was disputed in Quirin and played no part in the decision of it);

Haupt still had US Citizenship. The government's argument on that was weak, that he had essentially tossed away his citizenship by acting on behalf of Germany. It is indisputed that he had become a citizen and that no action depriving him of citizenship had occurred at the time of the case. You are correct in saying the court never reached that issue. However, it felt it did not have to. The case has never been overturned. Legally I could cite it without a problem in any brief. And it would not be a legal argument to say that it had been "highly discredited by fact and history." This is a legal case, not the court of public opinion.

2) the prosecution (not extrajudicial killing, although the executions had happened by the time the decision was rendered) was on the basis of articles of war voted on by Congress as part of the Declaration of War and thus authorized by legislation, not executive fiat.

First, the President has the power as commander in chief to order the armed forces to engage in military missions world wide. This power is nearly plenary. Second, the argument of the government is that these missions were authorized by P.L. 107-40 "Authorization of Military Force" which states, in pertinent part:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Hence, your argument that this is being done by "Presidential Fiat" is wrong on two counts (1) the president has millitary powers under the Constitution to order military force to be used against the enemies of the United States inherent in his or her person; (2) the Congress duly authorized the use of force against orgainizations who committed the 9/11 attacks to prevent further attacks. This gentleman is a member of al Qaeda and he is attempting to create further attacks against the civilian population of the United States by releasing calls to attack the US. These calls have already been heeded (Christmas aircraft bomber in Detroit). There is no doubt that this person has assisted these organizations by inciting attacks against US persons on US soil. Therefore, it has not been by "presidential fiat."
posted by Ironmouth at 9:27 AM on August 4, 2010 [1 favorite]


Ironmouth--I know I'm out of my depth here, but wouldn't that make it a conflict of laws issue? It seems difficult to ignore that a Presidential finding designating a citizen a military target due to criminal acts (that can also be construed as acts of war, but nevertheless fit the legal definition of terrorism) could run afoul of due process.

You seem to be suggesting this is settled law, and I find it hard to believe that all of the reporting on this would miss something that definitive.
posted by snuffleupagus at 9:30 AM on August 4, 2010 [1 favorite]


n.b. I may not be using "conflict of laws" properly there (as a term of art)--I'm talking about harmonizing conflicting Federal laws not about jurisdiction in international private law, etc.
posted by snuffleupagus at 9:35 AM on August 4, 2010


And let me address in general terms the legalisms of this subject.

Not one part of the Bill of Rights gives you an absolute right. There are well-known limits on "free speech", "establishment of religion" - no rational adult denies that some such limits are necessary though we may disagree on where those limits lie.

In the case of the Fifth Amendment, there is a whole continuum of possibilities, ranging from a police sharpshooter killing a man about to set off a bomb, to the President having his domestic political opponents executed.

Ex parte Quirin decided that a group spies captured in the United Strates were offenders against the law of war subject to trial and punishment by military tribunals, and had no rights to a civilian trial. The spies in question had received a military tribunal and most of them had been executed.

I fail to see how Ex parte Quirin leads to allowing pre-emptive assassinations of US citizens. It does not propose removing due process but shifting it from civilian courts to military courts. (And this was only permitted because of powers that the President receives when Congress declares a war - however, Congress has not declared any war...)

Spies have historically been treated very differently than other criminals - for obvious reasons. To extend the vast body of practice and case law regarding spies to this individual who is by no definition of the term a spy seems completely unjustifiable. Ex parte Quirin does use the unclear term "enemy combattant," but a first look seems to show that this is used in case law exclusively for people that are, in effect, spies.

tl; dr: that the US government, in war time, has the right to use secret military tribunals to try and convict spies absolutely does not give them the right to kill US citizens wherever and whenever they like with no due process.
posted by lupus_yonderboy at 9:40 AM on August 4, 2010


the President having his domestic political opponents executed.

This gives me a great idea for a terrible movie.
posted by shakespeherian at 9:47 AM on August 4, 2010


Haupt still had US Citizenship. The government's argument on that was weak, that he had essentially tossed away his citizenship by acting on behalf of Germany. It is indisputed that he had become a citizen and that no action depriving him of citizenship had occurred at the time of the case. You are correct in saying the court never reached that issue.

Except that's the problem, I was responding to your assertion here:

How about In re: Quirin? A unanimous Supreme Court held that an American Citizen named Haupt, who was a citizen, captured in the act of espionage on the soil of the United States in the service of Nazi Germany did not have the Fifth Amendment right to a trial by jury. If Quirin is true then how can it be that this gentleman has the rights you say?

If the decision didn't reach that critical fact, how is your citation to it applicable?

Hence, your argument that this is being done by "Presidential Fiat" is wrong on two counts (1) the president has millitary powers under the Constitution to order military force to be used against the enemies of the United States inherent in his or her person; (2) the Congress duly authorized the use of force against orgainizations who committed the 9/11 attacks to prevent further attacks.

My argument was to distinguish the Quirin precedent-- the military tribunals were explicitly established there (not by inherent power, or general 9/11 authorization to kick ass), and this was a legislative reason for the decision. The war powers argument is a different argument, and one I referred to hundreds of comments earlier when pointing out this isn't an Attainder situation.

Oh, and one last thing:

Legally I could cite it without a problem in any brief. And it would not be a legal argument to say that it had been "highly discredited by fact and history." This is a legal case, not the court of public opinion.

Cases based on lies, propaganda, and explicit deviation from accepted principles of law, fact, and principle rarely maintain their persuasive or binding precedential value. I already cited one recent case-- Hamdi-- where Quirin was scaled back to some pretty bare facts. You cite Quirin without the caveats from Hamdi and you're putting your legal credibility on the line. I don't dispute that it's never been overturned-- hell, I pointed it out in my first post on the matter-- but to suggest that you can cite to Quirin without navigating the putrescence of its history would be insulting the Court you presented it to. In my personal opinion.
posted by norm at 9:48 AM on August 4, 2010 [2 favorites]


Fascism will win because it feels too good.
posted by PsychoKick at 4:02 PM on August 4, 2010


Civil Rights are intended to apply to everyone equally. This includes people with unpopular viewpoints.

Someone who's trying to kill you has more than an "unpopular viewpoint."
posted by Jaltcoh at 9:48 PM on August 4, 2010


“As Chief Justice Marshall said, so long ago, it is a Constitution we are interpreting…” (i.e. not any single amendment).

That quote doesn't mean what you said in the parenthetical.
posted by Jaltcoh at 9:51 PM on August 4, 2010


I'm not sure I understand what you're saying, Jaltcoh. The article continues with "To show, as he put it, that “no law” did not mean “no law,” Dean Griswold had pointed out that the First Amendment was not the whole Constitution." -- in other words, as I read things, it isn't enough to simply bring to bear any single amendment on a given case, there's an entire document here and other portions may be just as relevant or even more so.

If you're sure the meaning is something else, I'd be happy to be enlightened, but it seems to me that Souter's speech reads very much like this.
posted by weston at 11:23 PM on August 4, 2010


What I think we can all agree on, is that the Treasury Department licensing the right to counsel to American citizens is blatantly and absurdly unconstitutional.
posted by mek at 2:05 PM on August 5, 2010


What I think we can all agree on, is that the Treasury Department licensing the right to counsel to American citizens is blatantly and absurdly unconstitutional.

Yes, but that's not what's happening here. Instead they're licensing the right to use his otherwise-frozen funds. That will obviously affect his ability to have counsel of his own choosing, but it's a moot point: do you really think he's interested in arguing his innocence in a US court?
posted by Joe in Australia at 4:09 PM on August 5, 2010


No, that is false. The ACLU and HRC were specifically barred from providing uncompensated advocacy for al-Awlaki by the law; to provide legal services to a "Specially Designated Global Terrorist" is currently a criminal offense without a license, which the Treasury claims it has the right to regulate under the commerce clause. This is why, despite the license being granted, the ACLU intends to pursue the original case; this is a blatant violation of the constitution. Here's the relevant bit from the Treasury (further analysis), which makes clear they do assert this authority even in pro bono cases:

The head of Treasury’s sanctions office, Adam Szubin, said in a statement that Treasury’s policy “is to broadly authorize the provision of pro bono legal services” to designated persons who want to challenge the government in court. “To the extent that the particular legal services that the ACLU wishes to provide in this instance do not fall into any of the broad categories that are generally licensed, [Treasury’s Office of Foreign Assets Control] will work with the ACLU to ensure that the legal services can be delivered,” Szubin said.

The key distinction is that they claim to have this broad authority, but currently choose not to wield it in pro bono cases. I hope we can all agree that this is a bad thing and should be challenged in court.
posted by mek at 2:00 PM on August 6, 2010 [1 favorite]


I'm not sure I understand what you're saying, Jaltcoh. The article continues with "To show, as he put it, that “no law” did not mean “no law,” Dean Griswold had pointed out that the First Amendment was not the whole Constitution." -- in other words, as I read things, it isn't enough to simply bring to bear any single amendment on a given case, there's an entire document here and other portions may be just as relevant or even more so.

OK, but that's just one judge's example of how one lawyer used the phrase to his advantage to make a particular argument. But the "it is a constitution" sentence doesn't only mean you interpret one constitutional provision in light of a different constitutional provision. It means that you're aware of many aspects of a constitution that influence how broadly and flexibly you need to interpret it. One example of this flexibility could be that there's a different constitutional provision that conflicts with the one you're interpreting. But other examples could be societal changes or the fact that the drafters of a provision couldn't possibly imagine every context in which it would apply. Another reason to interpret it flexibly is that the drafters (if they were smart) must have understood all this, and so they went ahead and wrote in terms of broad, vague principles rather than precise regulations. Your own example of "no law" in the First Amendment is an example of this; other examples would be "due process," "equal protection," "cruel and unusual punishment."
posted by Jaltcoh at 3:41 PM on August 6, 2010


Mek wrote: The ACLU and HRC were specifically barred from providing uncompensated advocacy for al-Awlaki by the law; to provide legal services to a "Specially Designated Global Terrorist" is currently a criminal offense without a license, which the Treasury claims it has the right to regulate under the commerce clause.

That's an interesting line of argument - the Commerce Clause has been interpreted very broadly - but I suspect that it would fail a challenge. Anyway. Can you show me where it's forbidden by the law? Because the link we were given in the OP says that the provision of legal services is authorised in a whole lot of cases, including all the ones that seem relevant. Now, you might say that this whole provision is unconstitutional and it's outrageous that Treasury would purport to grant such a license, but that's not what this FPP is about.
posted by Joe in Australia at 3:35 AM on August 7, 2010


The Treasury has a "general license" in place, the effect of which is to authorize most forms of pro-bono representation, but the ACLU interpreted certain technicalities to preclude their lawsuit on behalf of al-Awlaki, and at this point it's academic anyway. Personally I think it's unfortunate that the ACLU didn't just push ahead with the lawsuit and risk criminal prosecution, because that could have catalyzed a much larger debate and more scrutiny of the administration's actions.

Of course, since the ACLU has worked so closely with detainees for many years, none of their lawyers are apparently foolhardy enough to take that risk: they know exactly what the executive is capable of.
posted by mek at 3:48 PM on August 7, 2010


« Older 1. Robot mouse 2. Robot muppet 3. Robot mouse...   |   Edward Mike Davis was the owne... Newer »


This thread has been archived and is closed to new comments