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Old 10-11-2011, 08:08 AM
Florian Florian is offline
Join Date: Mar 2009
Posts: 2,118
Default Re: John Yoo reacts to the Memo

Originally Posted by Diane1976 View Post
I don't think they can be at war with some vaguely connected people who they think are, or might be, planning terrorist attacks. They could be at war with AQ or an allied group if it's operating as an armed group in an actual war, as they did in Afghanistan, and in Iraq after the war there started. I don't know how that applies to a person in Yemen because I don't know if what is happening there can be considered a war, or an attempt on the part of A-A's group to create another front, so to speak, related to whatever AQ may be doing in Pakistan, having supposedly moved on from Afghanistan. But, I assumed that was the Obama Admin's rationale for the killing. He would be a combatant in a war and a military target, citizen or otherwise, within only some constraints as mentioned by Jim-M47..
I think you are correct in saying that. I also think you are right in questioning the legitimacy of the Obama Administration's rationale in this particular case (if you are questioning it....) It is one thing to target enemy combatants in a war zone, as the US did in Afghanistan and Iraq; it is another thing to target members of a terrorist group on the grounds that they are "enemies" of the US, "at war" with the US. This is a metaphorical use of "war," a metaphorical use that has, unfortunately, become rather common.

Based on some reading I've done about this lately (sites like Opinio Juris, Lawfare, etc.) the other rationale for the killing could be self defence under the UN Charter, i.e. the right of a state to defend its people against terrorists planning to kill them. This would have to be in accordance with international human rights law, and US law. In that case, depending on the circumstances, A-A could be seen as somebody like a very dangerous escaped serial killer and the police end up in some position where it's possible to kill him but not capture him. So they might do that, to protect the public, although they wouldn't shoot some lesser criminal in the same situation.

This, I believe, would be the rationale used by those who do consider this a law enforcement situation, and that people who are actually planning and organizing major terrorist attacks are guilty of "crimes against humanity" to be dealt with by all states, and if a state can't or wont, the US is entitled to intervene. Some base that on neutrality laws, but that, apparently, is controversial. However, it makes sense. The US is trying the Christmas or Underwear Bomber himself in a civilian court, and that crime was supposedly engineered by A-A.
Self-defense seems to me the only legitimate defense, and the only possible legal defense under international law for the killing of A-A. I don't think "crimes against humanity" would apply here because, as I understand the term at least, such crimes are crimes of governments and of course of the agents of government who carry them out. That is why I proposed in my exchange with jim47 that terrorists should be considered "hostis humani generis," enemies of mankind" in the terminology of Roman jurisprudence. They are neither states nor criminals.... not exactly anyway. They are just bad apples, like pirates.

Obama has tried to shift the Gtmo terrorist suspects to civilian courts, while keeping people involved in an actual war in some way in the military commission system, but he has given into political pressure. However, I assume that's the approach he would like to take, or at least his legal advisors might like. This was what the Attorney General recommended.
Thereby hangs a tale, the tale of Obama.

Last edited by Florian; 10-11-2011 at 08:13 AM..
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