Killing Terrorists (Julian Sanchez & Eli Lake)

[Bloggingheads]

[chiwhisoxx]

This was interesting, if not entirely predictable.

Eli's confused attempt at the end of this diavlog to recount the lyrics of the Counting Crow's "Long December" was hilarious

[Wonderment]

Journalists with integrity, like you two, need to get to the bottom of the "legal" justification for killing Alalwaki et al.

Watch Jay Carney and Jake Tapper of ABC News (not exactly Mother Jones or the HuffPo) in case you've missed the stonewalling, equivocating and discomfort of the WH on this issue.

It's easy to imagine why we are not getting the full story: because it is going to sound as creepy and self-serving as the Jay Bibby and John Yoo Torture Memos.

[piscivorous]

While I am not upset to see the guy is now in received his promised 40 virgins, but I would much prefer we get one or two of these high valued targets and subject have a conversation or two about what the know. Perhaps the intelligence community has become so effective that they feel a conversation with these individuals is no longer necessary so just better to kill them regardless of their location or their nationalities; but I have my reservations about that. Of course the wording of the law regarding U.S. nationals is nowhere near as ill defined as the stuff Jay Bibby and John Yoo were interpolating (and I wont go down that road again). It can be found in Article V

...nor be deprived of life, liberty, or property, without due process of law;...

Not sure this is a precedence I am comfortable with.

[Wonderment]

I would think that the Tea Party -- a group I believe you showed some sympathy to -- would be the most outraged by President Obama's hit list and the assassination of Al-Awlaki et al.

I mean, weren't right-wingers and pro-lifers all worked up about "Death Panels?" The Death Panels were fictional, but Obama as Executioner-in-Chief is obviously real. It's the ultimate abuse of big government.

Well, at least you have some solace in knowing that activist judges were not involved. Judges were skipped entirely.

[Sulla the Dictator]

Originally Posted by Wonderment

I would think that the Tea Party -- a group I believe you showed some sympathy to -- would be the most outraged by President Obama's hit list and the assassination of Al-Awlaki et al.

Why would you think that? I would think that the American Left -- a group I believe you show some sympathy to -- would express more outrage at the targeted killing of an American citizen than the warrantless wiretapping of foreign nationals.

[ginger baker]

julian sanchez's body language: "Eli is a hack."

[jerusalemite]

Rob Wright: please remind bloggingheads participants such as Julian Sanchez to avoid saying "um" or "ah" almost every other word (or so it seemed).

[rubbernecking]

Julian's body language and mannerisms say: I am the reincarnation of William F. Buckley. It's fun and I think it suits him.

[AemJeff]

Originally Posted by ginger baker

julian sanchez's body language: "Eli is a hack."

It seems clear that Eli is not a hack, and I'm fairly certain that Julian knows that.

[Diane1976]

I liked this diavlog, and all the ones with Eli. Julian was interesting too.

I don’t agree with Eli, if he means to suggest that Obama is as guilty as Bush of overstepping his powers, violating the GC (war crimes) and I don’t agree with people who claim Obama conducted an illegal war as Bush did.

Obama didn’t make a sweeping claim that existing laws didn’t apply to people detained in the war on terrorism/Al Qaeda. Obama didn’t make up his own laws without Congress. Obama didn’t propose a full scale war to the Security Council and then conduct it anyway when they specifically disapproved.

Obama has made any number of decisions related to anti-terrorism, with which people, including me, disagree, but he hasn’t done any of the above.

With respect to the specific cases of OBL and this other person who was killed by the president’s order, these people were self-proclaimed combatants in a war with the US. They were in a war zone and, presumably, conducting activities related to their cause. I don’t see why they wouldn’t qualify as military targets. They weren’t “hors de combat” as they say. They weren’t captured and being held as prisoners. They weren’t incapacitated by wounds. The only argument might be the one about people being sometimes civilians and sometimes combatants depending on what they’re doing at the moment, but I don’t think that applies to them.

I do agree with Eli that Americans and other people should worry about who else is on Obama’s secret “hit list”. That’s scary.

[jimM47]

Originally Posted by Wonderment

Journalists with integrity, like you two, need to get to the bottom of the "legal" justification for killing Alalwaki et al.

So, I started writing a response reacting to this with some thoughts on what I see as the most plausible legal justifications, but it kind of ballooned in size, to the point where I didn't feel comfortable putting it directly in the thread. But in lieu of simply abandoning it, I am posting it as a link instead. If any brave (or masochistic) soul decides to wade through it, any responses can be made to this post, with the relevant text quoted it as though I had said it in a forum post.

[Sulla the Dictator]

Originally Posted by rubbernecking

Julian's body language and mannerisms say: I am the reincarnation of William F. Buckley. It's fun and I think it suits him.

What a horrifying idea. One of us has a strange idea of William F. Buckley.

[miceelf]

Originally Posted by Sulla the Dictator

What a horrifying idea. One of us has a strange idea of William F. Buckley.

It doesn't have to be just one.

;-)

[Wonderment]

Originally Posted by jimM47

So, I started writing a response reacting to this with some thoughts on what I see as the most plausible legal justifications, but it kind of ballooned in size, to the point where I didn't feel comfortable putting it directly in the thread. But in lieu of simply abandoning it, I am posting it as a link instead. If any brave (or masochistic) soul decides to wade through it, any responses can be made to this post, with the relevant text quoted it as though I had said it in a forum post.

Very interesting. Thanks for going into the subject with so much depth.

I'm skeptical of the whole Al Qaeda construct, upon which hinges much of the governmental hanky-panky. Even before I'd ask the question whether we're at "war" with Al Qaeda and affiliates, I'd ask, Is there really any such thing as Al Qaeda?

Eli makes the argument here that they have secret handshakes, oaths and organizational charts like the Cosa Nostra (another semi-amorphous criminal group) or your ordinary Crips-Bloods street gang, but it seems to me that any random Islamist terrorist sympathizer can affiliate with AQ or freelance. We're all probably 6 e-mail degrees of separation from "Al Qaeda."

In ordinary affairs the government has to prove an affiliation with organized crime or a criminal street gang (and the government often over-reaches preposterously, particularly in the case of minority adolescents who are labeled as gangsters, and are prosecuted with "gang enhancements).

In the world of political assassinations, however, we are asked simply to accept as gospel the assertion of the President that s/he has connected all the dots.

It's all very extra-judicially creepy to me. I also don't buy Eli's reasoning that the American people have somehow "decided" that we will have absolute "zero tolerance" for any terrorist incident, and that therefore we tacitly authorize Bush and Obama -- as if they were dictators -- to do whatever they say they must to protect us from evildoers.

[Florian]

Originally Posted by jimM47

So, I started writing a response reacting to this with some thoughts on what I see as the most plausible legal justifications, but it kind of ballooned in size, to the point where I didn't feel comfortable putting it directly in the thread. But in lieu of simply abandoning it, I am posting it as a link instead. If any brave (or masochistic) soul decides to wade through it, any responses can be made to this post, with the relevant text quoted it as though I had said it in a forum post.

What is bravery but masochism for a higher cause (than sex)? Thanks for the interesting post. Didn't the notorious (or infamous) John Yoo justify the court martial of "unlawful enemy combatants" by reference to the ancient law of nations (jus gentium) against piracy on the high seas?

Perhaps the oldest of the laws of the sea is the prohibition of piracy, as the peril of being set upon by pirates, who are motivated by their own needs rather than by national allegiance, is shared by the vessels and mariners of all nations, and thus represents a crime upon all nations; as such, since the time of the Ancient Romans, pirates have been held to be individuals waging a private warfare, a private campaign of sack and pillage, against not only their victims, but against all nations, and thus, pirates hold the peculiar status of being regarded as "hostis humani generis", the enemies of mankind. Since piracy anywhere is a peril to every mariner and ship everywhere, it is held to be the universal right and the universal duty of all nations, regardless of whether their ships have been beset by the particular pirate captured, to capture, try by a regularly constituted court-martial or admiralty court (in extreme circumstances, by means of a drumhead court-martial convened by the officers of the capturing ship), and, if found guilty, to execute the pirate via means of hanging from the yard-arm of the capturing ship, an authoritative Custom of the Sea.

http://en.wikipedia.org/wiki/Hostis_humani_generis

I wonder how many pirates in the past were tried by court-martial before being executed, and how many were just killed on the spot, in the heat of combat?

[BornAgainDemocrat]

Of course it is! Let's be realistic. American support for the state of Israel is issue number one, and has been for decades. Ashkenazi Americans may be reluctant to acknowledge this publically, but everybody knows. This is not an argument against our support for Israel, btw, but it is a powerful argument for settling the conflict.

American troops on Saudi soil and the influence of American policy propping up Arab regimes are also significant.

[jimM47]

Originally Posted by Florian

Didn't the notorious (or infamous) John Yoo justify the court martial of "unlawful enemy combatants" by reference to the ancient law of nations (jus gentium) against piracy on the high seas?

I haven't read anything by John Yoo, specifically, justifying the military commission trials of alien unlawful enemy combatants, only documents filed by the current administration. I am fairly certain they rely on the same theory, and the answer is no. The fact that pirates are hostis humani generis justifies the application of universal jurisdiction against them, so that, consistent with international law, an American court could entertain the prosecution a pirate with no connection whatsoever to American citizens or interests. In the case of al Qaeda terrorists, the need for universal jurisdiction is obviated by the fact that America has prescriptive jurisdiction, because the group is either in a declared war with America or is a conspiracy to commit crimes against Americans.

I know that Britain did prosecute pirates by court-martial and by admiralty, but all of the early American pirate cases of which I am aware appear to have been normal federal criminal trials, conducted by the Circuit Courts (the normal criminal court) rather than the District Courts (which held admiralty jurisdiction). This goes to one of the points that I touched on in the above linked post, which is that I don't see much evidence for the case that the constitutional authority of Congress to define and punish offenses against the law of nations also included the power to prescribe alternate methods of trial. Admiralty courts used not the native common law procedures, but foreign civil law procedures, and a large contention of the Revolutionaries and the Framers of the Sixth Amendment was that it had been tyrannical for Britain to subject North American subjects to civil law procedures as part of the expansion of Vice-Admiralty, and as part of the Canada Acts.

I should also point out that court-martial has a specific meaning in U.S. law as the regular form of proceeding used against American soldiers. The trials of Gitmo detainees proceed by a less rigorous/protective process called a military commission, which lacks some of the protections of a court-martial.

The justification for the Gitmo proceedings is as follows:

Defendants must be (1) alien (2) unlawful (3) enemy combatants. (The current revised term is alien unprivileged enemy belligerent, which means the same thing but uses the normal international law terminology.)

(1) Alien: because detainees are not U.S. citizens, and are held outside the incorporated territories of the United States,by non-civilian authority, there is no argument that the full bevy of due process rights apply to them.

(2) Unlawful/Unprivileged: under common Article III of the Geneva Conventions, combatants who adhere to the law of war are privileged against domestic criminal action by combatant immunity, except in non-international conflicts, where they may be prosecuted, but only in the same proceedings the forum country would use to try its own soldiers. Because detainees do not fight in accordance with the law of war, they can be tried by military commissions with fewer protections than a court-martial, without violating common Article III.

(3) Enemy Combatant / Belligerent: because detainees are enemy belligerents, they fall within the historic exception within U.S. constitutional law allowing trial by military commission of acts in violation of the law of war -- i.e. war crimes, on one hand, but also offenses committed by an unprivileged belligerent.

In order to try a detainee, the Gitmo military commission must first establish that these things are each true in order to establish personal jurisdiction. The commission must also establish that the charged crime is one triable by military commission (i.e. an act in violation of the law of war) in order to establish subject-matter jurisdiction. One of the things that is currently being fought out in the courts is what kind of crimes where historically triable by military commission. In particular, could inchoate acts (forming a conspiracy, joining a group, etc.) by unprivileged belligerents, either directed at permissible use of force, or directed at accomplishing war crimes, constitute acts in violation of the law of war? (The question gets particularly complicated because the various historical and international precedents need to be translated into a single framework, compatible with the constitutional question, from disparate visions of international law held over the last 300 years.)

[jimM47]

Originally Posted by Wonderment

I'm skeptical of the whole Al Qaeda construct, upon which hinges much of the governmental hanky-panky. Even before I'd ask the question whether we're at "war" with Al Qaeda and affiliates, I'd ask, Is there really any such thing as Al Qaeda?

That's a healthy skepticism, I think, and also a particularly American legal mindset. When European countries have passed terrorism laws, they've been able to draw on a heritage of having criminalized organizations and parties. But in America, where we think of freedom of association under the rubric of free speech/free expression, and where many organizations can be joined simply be declaring oneself a member, we have a much more difficult time conceiving how an organization or a party can be criminalized.

The other issue is that we don't have a lot of experience is belligerents that don't belong to a state or a putative state. But the law of war does require this concept. You might also have problems defining the outer limits of who are the Tamil Tigers, or the Darfur rebels, etc., but under the U.S.'s historic practice of the law of war, it is a distinction that matters. Of course, the difficulty would be smaller if al Qaeda played by the rules: if it had identifying badges, and a stable command hierarchy. The challenge we have is to not reward al Qaeda for not looking like a traditional belligerent, while still being sure they really qualify as a belligerent, as opposed to just a bunch of individual criminals.

Eli makes the argument here that they have secret handshakes, oaths and organizational charts like the Cosa Nostra (another semi-amorphous criminal group) or your ordinary Crips-Bloods street gang, but it seems to me that any random Islamist terrorist sympathizer can affiliate with AQ or freelance. We're all probably 6 e-mail degrees of separation from "Al Qaeda."

I think the analogy to the mafia is an apt one, actually. But there again we see another mode of lawlessness that the American system has had trouble dealing with. RICO, our anti-mafia law, stands out from the rest of our legal landscape in allowing for the establishment of an organization as criminal through a pattern of criminal activity.

There's no question, as a matter of domestic law, that we could enact a worldwide analog to RICO addressed at terrorism, and that we could charge most of al Qaeda under it. (Our "Material Support for Terrorism" law accomplishes something similar.) But since that is just a normal criminal law, it only authorizes normal criminal process, which means attaining custody, following the Federal Rules of Evidence (which require establishing the chain of custody for physical evidence), trial by jury, and giving control of the defense case to the defendant himself (which al Qaeda members have generally used as an opportunity to waive their defenses and declare their guilt, even when it isn't true).

[Florian]

Originally Posted by jimM47

I haven't read anything by John Yoo, specifically, justifying the military commission trials of alien unlawful enemy combatants, only documents filed by the current administration. I am fairly certain they rely on the same theory, and the answer is no. The fact that pirates are hostis humani generis justifies the application of universal jurisdiction against them, so that, consistent with international law, an American court could entertain the prosecution a pirate with no connection whatsoever to American citizens or interests. In the case of al Qaeda terrorists, the need for universal jurisdiction is obviated by the fact that America has prescriptive jurisdiction, because the group is either in a declared war with America or is a conspiracy to commit crimes against Americans.

Except that Al Qaida is not, cannot be at war with the United States. It is not a state, and only states can be at war with other states---under international law. So it seems to me that Yoo is in fact correct: terrorists, unlawful enemy combatants are like pirates in being enemies of mankind, i.e. they are not the enemies of any particular state, they are the enemies of mankind in general, and therefore any state may treat them as enemies. So when you say that the "need for universal jurisdiction is obviated" because Al Qaida is at war with the US or is a conspiracy to commit crimes against Americans, I think you are confusing two kinds of law--criminal law and international law.The wikipedia article I quoted goes on to say this:

One prominent advocate of this theory, former Deputy Assistant Attorney General of the United States John Yoo, the author of a memorandum regarding the conditions of "unlawful enemy combatants" held in Guantanamo Bay, Abu Ghraib, the Salt Pit at Bagram Air Force Base, and other locales, recently emphasized the continuing relevance of the term, and his interpretation of it, stating: "Why is it so hard for people to understand that there is a category of behavior not covered by the legal system? What were pirates? They weren’t fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didn’t deserve the protection of the laws…" (Although Mr. Yoo does not use the term openly, by referring to pirates and slave traders, and declaring them outside the law, he makes an unmistakable reference to "hostis humani generis")

[jimM47]

Originally Posted by Florian

Except that Al Qaida is not, cannot be at war with the United States. It is not a state, and only states can be at war with other states---under international law.

That's not correct. The Geneva Conventions explicitly recognize the possibility of armed conflict that does not take place between two states, such as wars of rebellion or national liberation, and extend basic law of war protections to members of non-state armed forces operating within the law of war, such as a guarantee that they will not simply be summarily executed if captured or disabled. Customary state practice is consistent in treating certain non-state armed groups as enemy belligerents, often entitled to immunity from domestic criminal laws.

And most importantly here, the relevant historical exception in the United States to the constitutional requirement of a full trial is limited to enemy belligerents in armed conflicts, but that exception does include conflicts with non-state armed forces. The Union gave combatant immunity to Confederate soldiers, but employed military commissions to try Confederate war criminals, even though it did not recognize the Confederacy as a state. But even if you argue that the Confederacy counts as a state, it is still the case that the Union gave combatant immunity to groups who were not members of the Confederate army, but who nevertheless met the requirements of lawful belligerency (by marking themselves, carrying their arms openly, following a commander) but employed military commissions to try groups who fought unlawfully. These fighters clearly were not states.

when you say that the "need for universal jurisdiction is obviated" because Al Qaida is at war with the US or is a conspiracy to commit crimes against Americans, I think you are confusing two kinds of law--criminal law and international law.

I say "or" because I am speaking in the alternative. Despite the fact that a state can clearly be at war with a non-state belligerent, there can still be question whether al Qaeda counts as an armed group, or is merely the name given to a set of individuals who have committed acts criminalized by the United States. But either way, there is justification for applying some form of power against it's members.

If al Qaeda is an enemy belligerent, the law of war provides justification under international law for exercising U.S. power against it. If al Qaeda is merely a set of criminals, the protective principle and passive personality principle of prescriptive jurisdiction provide justification under international law for exercising U.S. power against them. (In each case, the international question is related to domestic limitations on federal authority.)

So it seems to me that Yoo is in fact correct: terrorists, unlawful enemy combatants are like pirates in being enemies of mankind, i.e. they are not the enemies of any particular state, they are the enemies of mankind in general, and therefore any state may treat them as enemies.

The wikipedia article isn't terribly well-written, and neither is the primary source that it is quoting, so it's hard for me to reconstruct, much less evaluate, the merits of Yoo's argument. But I will say this:

The concept of unlawful enemy combatants is at least as old as the acceptance of slave traders being hostis humani generis, and while I've seen plenty of material in the treatise writers pontificating on unlawful combatants' lack of legal rights or moral standing, I've never seen them referred to as enemies of all mankind, nor seen that given as a justification for action against them.

And indeed, I don't see how establishing that terrorists are hostis humani generis would create the effect of reducing their rights under U.S. domestic law. Pirates and slave traders still got Article III trials. (I did go and look up whether they could be tried in an Admiralty Court, and the answer is yes, but the precedent grounds it on Article III's grant of admiralty jurisdiction, which also applied to any other crime committed on the high seas.)

[Wonderment]

Originally Posted by jimM47

But in America, where we think of freedom of association under the rubric of free speech/free expression, and where many organizations can be joined simply be declaring oneself a member, we have a much more difficult time conceiving how an organization or a party can be criminalized.

Yes, freedom of association is one of the core problems. I don't know how this has played out in Mafia cases, but the constitutional principle has been argued in street gang affiliation cases I've studied. Having seen closely (working with gang youth) how the feds and state law enforcement collude to stigmatize people as "gang members" in order to maintain political power, pile on charges, and get law enforcement funding, I'm very concerned about vested interests (political and economic) in the War on Terror. In terms of civil rights, I'm concerned with who is getting swept up onto no-fly lists, terrorist lists and so on.

In the world of gang enforcement, police often guess about who is a gang member; courts certify these police officers as "expert witnesses"; the standard for gang affiliation is basically whatever the judge feels like accepting; the burden of proving one is NOT a gang member often falls upon the accused; and the consequences of being classified as a member can be severe (especially in prison and in terms of qualifying for parole).

So I don't even like RICO-type laws being applied, although they are certainly preferable to secret assassination hit lists or death warrants (whether a judge signs off or not).

There is also the (dirty) War on Drugs as waged by the USA in Latina America as a disturbing model. Rick Perry, for example, is apparently prepared to send (more) troops into Mexico to battle drug lords.

I also don't like how all these bad guys tend to merge in the eyes of the government: organized crime = terrorism = drug lords = street gang (eg. Mara Salvatrucha) = militia groups = Islamicists. Everyone has "ties." Again, 6 degrees of separation.

Independently of all that, the Obama system of assassination is deeply disturbing not because it bends the rules or pushes the envelope, but rather because it's extra-judicial, granting absolute powers of life and death to the Decider. This all began with the previous Decider, but Obama said he would be different and isn't.

[T.G.G.P]

One can certainly make a very plausible argument about blowback from supporting the Pakistani regime (not that it makes more contemporary blowback-causing events less plausible), but I could also argue that the regime has never been terribly stable. It was fighting an insurgency in Balochistan when it was first created, and doing so again now. It lost its eastern half in a major war involving what many regard as genocide perpetrated against bengalis. The pushtun tribal area bordering Afghanistan has never been very governable. However, the "Pakistani Taliban" didn't really exist before 9/11. There was just the Afghan Taliban that the Pakistanis found useful against India.

Most al Qaeda wannabe terrorists are tremendously incompetent, but it isn't always because they're uneducated cretins. There was a British "doctor's plot" that was quite laughable. They wanted to blow up their cars but ended up just setting themselves aflame and trying to punch (while on fire) security guards at the airport.

I don't think the scenario of shooting people coming out of a building is so Matrix-fantastical. Middle school kids did that in Georgia after pulling a fire alarm back in the 90s.

[Florian]

Originally Posted by jimM47

That's not correct. The Geneva Conventions explicitly recognize the possibility of armed conflict that does not take place between two states, such as wars of rebellion or national liberation, and extend basic law of war protections to members of non-state armed forces operating within the law of war, such as a guarantee that they will not simply be summarily executed if captured or disabled. Customary state practice is consistent in treating certain non-state armed groups as enemy belligerents, often entitled to immunity from domestic criminal laws.

I am fully aware that the Geneva Conventions apply to civil wars and wars of national liberation. The reason is obvious: combatants in rebellions or civil wars are fighting in order to overturn an existing political order, just as combatants in wars between states are fighting in order to alter in some way the international political order, the "balance of power" between states.* Rebellions end either with the formation of a new state or with the return to the status quo ante (in the latter case, by the way, what is to prevent the state from executing rebels or their leaders as traitors?). The purpose of the Geneva conventions, the "laws of war," is (was) to protect enemy combatants who surrender or are captured by the enemy, i.e. who are no longer "at war."

*Perhaps we should say "were fighting" since the Geneva conventions look backward to the European tradition of "limited warfare."

And most importantly here, the relevant historical exception in the United States to the constitutional requirement of a full trial is limited to enemy belligerents in armed conflicts, but that exception does include conflicts with non-state armed forces. The Union gave combatant immunity to Confederate soldiers, but employed military commissions to try Confederate war criminals, even though it did not recognize the Confederacy as a state. But even if you argue that the Confederacy counts as a state, it is still the case that the Union gave combatant immunity to groups who were not members of the Confederate army, but who nevertheless met the requirements of lawful belligerency (by marking themselves, carrying their arms openly, following a commander) but employed military commissions to try groups who fought unlawfully. These fighters clearly were not states.

This is interesting but, it seems to me, not exactly relevant to the question of the status of terrorist groups who, unlike the irregular combatants in the Civil War, are supported by no state, officially at least, and have no purpose other than striking fear in the population. Like the pirates of old, or the anarchists of the 19th century, they are acting on their own initiative.

I say "or" because I am speaking in the alternative. Despite the fact that a state can clearly be at war with a non-state belligerent, there can still be question whether al Qaeda counts as an armed group, or is merely the name given to a set of individuals who have committed acts criminalized by the United States. But either way, there is justification for applying some form of power against its members..

Did I say or imply that there is no justification for "applying some form of power against its members?"

What is incomprehensible to me is that the United States, with all its lawyers and legalisms, has been unable to sort out the scandalous mess it created in Guantanamo.

If al Qaeda is an enemy belligerent, the law of war provides justification under international law for exercising U.S. power against it. If al Qaeda is merely a set of criminals, the protective principle and passive personality principle of prescriptive jurisdiction provide justification under international law for exercising U.S. power against them. (In each case, the international question is related to domestic limitations on federal authority)

I agree, but everything hinges on the two "ifs."

The concept of unlawful enemy combatants is at least as old as the acceptance of slave traders being hostis humani generis, and while I've seen plenty of material in the treatise writers pontificating on unlawful combatants' lack of legal rights or moral standing, I've never seen them referred to as enemies of all mankind, nor seen that given as a justification for action against them.

I don't understand your objection. Man-kind (generis) means humanity, the human family, all men (women) regardless of political affiliation.

And indeed, I don't see how establishing that terrorists are hostis humani generis would create the effect of reducing their rights under U.S. domestic law. Pirates and slave traders still got Article III trials. (I did go and look up whether they could be tried in an Admiralty Court, and the answer is yes, but the precedent grounds it on Article III's grant of admiralty jurisdiction, which also applied to any other crime committed on the high seas.)

I am sure Anwar al Awlaki, surrounded by 72 virgins, will rejoice to hear that his rights were respected in accordance with the principles of US domestic law.

[jimM47]

Originally Posted by Florian

Rebellions end either with the formation of a new state or with the return to the status quo ante (in the latter case, by the way, what is to prevent the state from executing rebels or their leaders as traitors?).

In positive international law, nothing prevents the state from executing captured rebels or their leaders, so long as it is a sentence is passed by a regularly constituted tribunal (which would mean a court-martial in this case). But as I suggested in the above link, American domestic practice seems to support the idea that rebels who are regular combatants are either given full combatant immunity for their actions, or are prosecuted under regular criminal laws in a normal Article III court, following full due process, and having no jurisdiction over unwritten war offenses.

This is interesting but, it seems to me, not exactly relevant to the question of the status of terrorist groups who, unlike the irregular combatants in the Civil War, are supported by no state, officially at least, and have no purpose other than striking fear in the population. Like the pirates of old, or the anarchists of the 19th century, they are acting on their own initiative.

Except that the irregulars weren't supported by the Confederacy. They were independent operators who were just as often acting out of a desire to loot and plunder than loyalty to a cause. Or pick border-raiders on the Mexican frontier, etc., if you want a different example. If there is a distinction to be drawn it is not that these irregulars were supported by a state, or that they could be counted on to support a state themselves, but that the irregulars were not themselves responsible for the state of war that they acted in (at least until you start talking about post-surrender Confederate irregulars).

I don't understand your objection. Man-kind (generis) means humanity, the human family, all men (women) regardless of political affiliation. . . . I am sure Anwar al Awlaki, surrounded by 72 virgins, will rejoice to hear that his rights were respected in accordance with the principles of US domestic law.

I, in turn, do not understand your objection. It seems to me that you suggested a particular legal justification for al-Awlaki's killing, and similar treatment of unlawful enemy combatants, grounded in hostis humani generis. My point is that these two concepts have particular and fixed meanings within the conception of international law that is binding in the United States, and I was trying to explain why I see them as incompatible, and therefore incapable of providing the legal justification you suggested.

[Wonderment]

Palin refudiated? Yes and no.

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

[Wonderment]

Senators Feinstein and Lewin join the call to release the memo.

A bipartisan chorus of political and legal voices is calling on the Obama administration to release a declassified version of the Justice Department memo that provided the legal analysis sanctioning the killing in Yemen last week of Anwar al-Awlaki, a U.S. citizen.

[Florian]

Originally Posted by jimM47

I, in turn, do not understand your objection. It seems to me that you suggested a particular legal justification for al-Awlaki's killing, and similar treatment of unlawful enemy combatants, grounded in hostis humani generis. My point is that these two concepts have particular and fixed meanings within the conception of international law that is binding in the United States, and I was trying to explain why I see them as incompatible, and therefore incapable of providing the legal justification you suggested.

They may be incompatible in international and in US law, but that seems to me a rather academic question---since neither the treatment of prisoners in Guantanamo nor the killing of al-Awlaki have shown much respect for international law. In any case, the assassination of al-Awlaki was more in accordance with treating him as a "hostis humani generi" than with treating him as an enemy, an illegal enemy combatant or a prisoner of war.

The difference is as clear as night and day: when an enemy soldier, whether regular or irregular, surrenders or is captured on the battlefield, the Geneva conventions (international law, jus gentium) are supposed to come into play, which preclude, at the very least, killing him without a trial. A soldier who surrenders or is captured is no longer "at war" and falls under the protection of his captors.

[osmium]

Come on man, turn up the Eagles, the neighbors are listening.

[AemJeff]

Originally Posted by osmium

Come on man, turn up the Eagles, the neighbors are listening.

Man, low blow! That's that's the hipster equivalent of a knee to the groin!

[osmium]

Originally Posted by AemJeff

Man, low blow! That's that's the hipster equivalent of a knee to the groin!

Naw man. It's a seakert high-five coz I like the Dan.

(Anyone paying attention knows Eli has the best musical taste of the heads. Weigel tried wearing a King Crimson shirt in the Times but I don't buy it.)

[AemJeff]

Originally Posted by osmium

Naw man. It's a seakert high-five coz I like the Dan.

(Anyone paying attention knows Eli has the best musical taste of the heads. Weigel tried wearing a King Crimson shirt in the Times but I don't buy it.)

Heh. I'd have never made the connection.

[Wonderment]

The Awlaki precedent:

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

[Wonderment]

Oh, and Awlaki was not a member of Al Qaeda. He was a member of a group that is "cobelligerent" with AQ.

[AemJeff]

Originally Posted by Wonderment

Oh, and Awlaki was not a member of Al Qaeda. He was a member of a group that is "cobelligerent" with AQ.

Is there a useful semantic distinction between that sentence and "He was a member of a group that is allied with AQ"?

[Wonderment]

Originally Posted by AemJeff

Is there a useful semantic distinction between that sentence and "He was a member of a group that is allied with AQ"?

I think there is. "Co-belligerent" seems broader. It doesn't imply a necessary alliance at all.

I think the term suggests that there are x number of possible groups with general Islamish animosity toward the USA. If it looks like, smells like and walks like AQ, it is (for dirty-op purposes) an AQ co-beligerent.

[chiwhisoxx]

Originally Posted by Wonderment

I think there is. "Co-belligerent" seems broader. It doesn't imply a necessary alliance at all.

I think the term suggests that there are x number of possible groups with general Islamish animosity toward the USA. If it looks like, smells like and walks like AQ, it is (for dirty-op purposes) an AQ co-beligerent.

It seems much more specific than that. Co-belligerent (besides being an awesome sounding term that I'm now going to employ in day to day life) seems to imply an actual working relationship; shared communications, joint ventures, material support, etc.

[Wonderment]

Originally Posted by chiwhisoxx

It seems much more specific than that. Co-belligerent (besides being an awesome sounding term that I'm now going to employ in day to day life) seems to imply an actual working relationship; shared communications, joint ventures, material support, etc.

I'd respond to you, Chi, but you sound too belligerent.

So do those anti-drone protestors. Lucky they just got pepper-sprayed.

[chiwhisoxx]

Originally Posted by Wonderment

I'd respond to you, Chi, but you sound too belligerent.

So do those anti-drone protestors. Lucky they just got pepper-sprayed.

belligerence is a specialty of mine; a trait I've carefully honed and cultivated over the years. so thank you!

as an aside, i'm not terribly sympathetic to people trying to push past police into a building in order to trespass and presumably occupy the building. it's also somewhat mysterious that a group with a list of grievances that include corporate power and such would target a stodgy museum, but whatever. but I do think it will be interesting to how all this technology changes police behavior. there are a lot asshole cops who seemed to operate with the twin power of their authority and relative anonymity, and the increased transparency we have now has to be a good thing for curbing that behavior.

[jimM47]

Thanks for the link. A few thoughts:

It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum.

Martin Lederman, one of the authors of the memo, talks with Orin Kerr in this 2007 Diavlog, about legal rights of people outside the United States in the War on Terror.

Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again.

I believe that "cobelligerent" means that Awlaki's group had a military alliance with al Qaeda specifically with respect to a war against America that they were both waging. That requires that each group be a belligerent group -- i.e. that they each be at war with the United States in their own right. And it requires that they be cooperating. It is possible for two non-allied groups/states to be at war with the same power, without being allies. And it is possible for a group/state to be allied with, and giving support to, a belligerent group/state without being itself a belligerent.

. . . it is not “murder” to kill a wartime enemy in compliance with the laws of war . . . but . . . would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

This bit is really really important, because its a confusing point of law that the administration appears to be trying finesse both ways, such that legally similar actions are sanctioned for Americans, but not for al Qaeda members. Note the irony: the CIA drone operator who killed al-Awlaki is an unprivileged belligerent -- or to use equivalent terms, to al Qaeda, he is an alien unlawful enemy combatant. (Where have you seen that before?)

And the memo is exactly right that homicide by unprivileged belligerent is not a war crime. But it is an unprivileged act, which means that regardless of the fact that al-Awlaki was a legitimate target, it was still a murder under any applicable law. Certainly the Yemenis won't prosecute him for murder, but there is a pretty strong case that federal law applies, and it has long contained a crime of "murder by an unprivileged belligerent." That crime, in fact, is pretty key to the prosecutions taking place at Gitmo (actually, various derivative crimes like conspiracy or incitement to commit murder by an unprivileged belligerent).

So consider that the administration may not be keeping the memo secret because it would offend Americans or compromise national security, but because it may harm the government's own case in other proceedings.

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained [Hamdi v. Rumsfeld] or prosecuted in a military court [Ex Parte Quirin] just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect [Scott v. Harris], finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people[Tennessee v. Garner].

I have to wonder how exactly these arguments play out in the memo: whether they are arguments in the alternative, or whether they a put together. If the latter, then I have to express some skepticism. These two things are talking about different areas of U.S. law, war powers and law enforcement powers, and they rest on very different premises. That's why I am suspicious of any attempt to put war powers and law enforcement powers on some sort of a spectrum upon which process rights and what force is reasonable go from minimal to maximal.

To my way of thinking it is never permissible, in the context of law enforcement, to act with the sole purpose of killing the "suspect." In war it is permissible to kill your enemies, but only with certain restrictions, and not because no other reasonable possibility exists, but because it is within the realm of proportional use of force.