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Bad facts make bad law, Anwar al-Awlaki edition

Bad facts make bad law, Anwar al-Awlaki edition

From David Dayen at Firedoglake:

We’ll hear this was necessary because of Awlaki’s operational role, and his part played in the Fort Hood massacre and the Christmas Day bombing attempt.  In reality, many experts saw Awlaki as a public figurehead, a man who could speak in front of a video camera and therefore was magnified in the US public’s mind as some sort of leader.  He was a guy with a YouTube account rather than an operational leader of Al Qaeda.

And now that he’s dead from a drone missile strike, it’s too late to wrestle with the question of whether a US citizen should be designated as a candidate for assassination by a murky process with no checks or balances.  The President and leading counter-terrorism officials just decide who should be marked for death, and then robot planes carry it out.  That slope is so slippery I’m assuming the BP Deepwater Horizon well is nearby.

And Glenn Greenwald:

What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.

And frequent commenter myiq2xu:

The President of the United States ordered the killing of an American citizen without any trial or due process of law.

How do we know he’s guilty?  Because THE GOVERNMENT SAYS SO!!!

These are legitimate concerns, but made as to the wrong person.

Bad facts make bad law, and Anwar al-Awlaki was a bad fact.

Update:  Kenneth Anderson at Volokh Conspiracy has background on the al-Awlaki legal case in which the ACLU unsuccessfully tried to get an injunction against his targeted killing.

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Comments

“If the law protects a scumbag like me, it will protect all of you.” – Larry Flynt

Before 2009, I’d agree with you. But what we’ve seen in that time is a petty, mean-spirited, thin-skinned president whose DHS sent out memos to law enforcement across the country to be on the lookout for potentially dangerous, potential terrorists who are pro-life, military veterans, supporters of states’ rights, and/or other wild-eyed crazy stuff like being Christian. This admin, we’ve seen over and over again (from the flagthefishy/attackwtach stuff to the attempts to shut down Fox), sees us as the enemy (who must be punished?). How many “white conservatives are the biggest threat to national security” nut jobs did Obama nominate to TSA? Two? Three?)? This admin sees us as terrorists; we know it because they’ve said it. Repeatedly. You really okay with that man signing death warrants on U. S. citizens? I’m not.

    DINORightMarie in reply to Fuzzy. | September 30, 2011 at 11:36 am

    I agree with your point; this administration has proven itself to be tyrannical, and not trustworthy of such matters.

    However, as I mention in my post below yours, this might be a case which has sufficient precedent to allow this traitor to be taken out (part of my post copied below):

    After reading what Michelle Malkin said on her site about this, I believe that there is legitimate precedent to allow an act like this drone strike on American citizen Anwar al-Awlaki.

    But, when we allow the government to kill Americans without due process, then it is indeed essential that the government provide ample evidence that such action is necessary, IMHO. Again, I this case, I believe that evidence is more than overwhelming that this action was in our nation’s best interests for national security reasons.

    The point of that last paragraph especially applies to this administration. Without sufficient evidence to support such an action, we can not allow our government to begin excusing assassinating citizens. Even then, it should be that the person has had a trial – even in absentia – where it is unquestionable that that citizen’s due process rights were addressed.

    But is that too much power for any state to possess? Most definitely a legitimate question. Show trials can be the mock “due process,” if held under a tyrannical regime; anyone who is not in agreement with the “state” can become a target of the state, if a tyrannical regime is in power.

    There are Constitutional limits to power for a reason.

    Milhouse in reply to Fuzzy. | October 3, 2011 at 11:48 pm

    What conceivable difference does it make whether the person is a US citizen? Are the lives of Yemeni or Pakistani citizens worth less than those of Americans? If you don’t trust the president with the power to wage war when the target is American, then how can you trust him with that same power with other targets? If he is indeed untrustworthy then the answer is to vote for someone else next year. Until then he’s the commander in chief of the armed forces, and taking out America’s enemies is his job. Thank god he’s doing one thing right!

I agree that they are legitimate concerns, but I’m still glad he’s dead.

Well, if he’s actually dead that is. Didn’t they claim to have gotten him twice before?

“Far from any battlefield”? The USS Cole was a battlefield in the coast off Yemen. In fact to jihadis like Awlawki, the whole world is a battlefield whether or not benighted dhimmis like Greenwald and Dayne agree.

I am amazed that the Left has actually sided with Glenn Beck on something! 😉 (For those who like backup info., I will look for a link to where he made similar arguments on his Fox TV show before leaving.)

What I have a huge problem with is that this guy, who is an American citizen, the government feels can be taken out using drones or whatever, because he is considered a legitimate war target; however, we have to read Miranda rights to non-US citizens – al Qaeda operatives, terrorists, etc. – caught in a foreign country, on the battle filed in most cases….oh, and did I mention, NOT American citizens? Explain that, please.

After reading what Michelle Malkin said on her site about this, I believe that there is legitimate precedent to allow an act like this drone strike on American citizen Anwar al-Awlaki.

But, when we allow the government to kill Americans without due process, then it is indeed essential that the government provide ample evidence that such action is necessary, IMHO. Again, I this case, I believe that evidence is more than overwhelming that this action was in our nation’s best interests for national security reasons.

    we have to read Miranda rights to non-US citizens – al Qaeda operatives, terrorists, etc. – caught in a foreign country, on the battle filed in most cases….

    Where on earth did you get such a stupid idea from?

Al Awlaki, under normal US circumstances, would not be (no longer be) an “American Citizen.” Yemen permits him to retain his US Citizenship while adopting a Yemen citizenship … e,g., “duel” citizenship. The US can’t prevent that as he is swearing allegiance to Yemen, not the US in naturalization. Other countries do not recognize US Naturalized Citizenship requirements that you drop foreign citizenship and permit the same thing. To me, and as a veteran who got to travel to meet interesting people and kill them (or be killed by them), duel citizenship is self-indulgent pride-less bovine excrement. You are one or the other, cat or dog, fur or feather, and so on … so F Al Awlaki, if dead, the world is a better place.

    Milhouse in reply to Aridog. | October 3, 2011 at 11:59 pm

    You are dead wrong. Dual citizenship is a legal fact, and if you don’t like it that’s just too bad. The law does not and will never comform itself to your peculiar preferences. US citizenship is a constitutional right, not a privilege, and it can never be taken away from someone without his consent. Some countries may require people to renounce their US citizenship as a condition of naturalisation; many others don’t. In either case it’s entirely their business, not yours or that of the USA.

Every Confederate soldier KIA was also denied due process. Waging war against the United States has a price.

I must add that a common and naive presumption by too many Americans is that when you travel abroad you have the same legal rights and protections as you do inside the USA.

Wrong. Even soldiers in nations where we have SOFA agreements, and that includes Iraq, are subject to the local jurisdictions in which they are moving about in, if not on a designated US compound or base. Been there, done that. Think not? Query up the case of USMC Sgt Nazario, charged with murder on hearsay evidence in the USA, years after separation from the military, based upon similar US statutes enhancing SOFA accords. Query up “Military Extraterritorial Jurisdiction Act” for details.

You only have to look as far as the recently ransomed (“bail?”) yuppie hikers in Iran who just came home … at least one of which still clings to his idea that Americans cause the trouble. Anyway … who here or anywhere thinks that got a fair trial by US legal standards?

Beyond that, foreign prisons are full of American and other nationality prisoners convicted under foreign rules, not ours, who might find the technical presumption preposterous. Actually, if convicted of “spying” or “sabotage” in a foreign country, just as here, while wearing civilian clothes, they could have been executed post haste, even under Geneva Convention rules.

Sorry, too verbose again, but this topic is a very sore spot with me. I may not have the exact legal details precise, but I have the real time facts in order … e.g., not what should be, but what is …

Had this bozo and his “American” friend been wearin’ you know, like Jeans, a T and some runnin’ shoes and listenin’ to some tunes on a jambox instead of those sheets, they just may have be spared.

To late now. Enjoy those 72’s dudes..

Professor,

I’m sorry, but everyone is just missing the point.

This individual, and all of his ‘comrades’, was engaged in military operations against the US. He was not, at that moment, actively shooting at Americans, but he was continually and routinely engaged in planning directing, and supporting such activities. We know this because he said so, loudly and often.

This makes him a combatant. His country of citizenship is totally irrelevant. As such, he was a legitimate military target wherever and whenever, he could be located. He was NOT entitled to ANY of the protections offered by the civilian legal system. His status as a military combatant made all of those questions moot.

ANY combatant is liable to be attacked and killed whenever and wherever they may be located. The ONLY restriction in play is a requirement to take reasonable steps to mitigate unnecessary civilian injuries/deaths, property damage or other collateral damage, and that he not be tortured, etc., if captured.

Your thoughts?

DCP

    Aridog in reply to DCP. | September 30, 2011 at 1:34 pm

    No argument from me on your points. I don’t think I missed them, but you said it better.

    beloved2 in reply to DCP. | September 30, 2011 at 2:45 pm

    This case points out the importance of changing our laws about “anchor babies” and other foreigners given U.S. citizenship based JUST on place of birth. His parents were not legal immigrants, they were simply students who birthed their baby here and took him back to their native Yemen at age 7. He never should have been given American citizenship or should have lost it when he got naturalized Yemeni citizenship. He was never an enculturated American, never stated allegiance to the country of his birth.DCP was correct, he was an enemy combatant of the country of his birth. He was not American in any real sense.
    There are over 200 Muslim student associations on American college campuses serving thousands of Muslim students. How many are Muslim couples having babies on American soil who then have American citizenship. That is the major problem that needs a legal remedy.
    Thanks DCP for explaining what most people don’t know about foreign laws. The American Embassies in many Muslim countries are deluged with American women married to Muslim men who think because they have custody of their children in the U.S. that they can escape a Muslim country with their babies. Far too many American women have been deceived into marrying a Muslim men and then discovering they have lost all rights in a foreign land.

      Not to pick the nit too sharply, but the question of anchor babies is not germaine to my point.

      I frankly don’t care if he was born in Yemen, the US, Mars or anywhere in between. It was because of his ACTIONS that he made himself an enemy combatant. It was his STATUS as an enemy combatant that made him a legitimate military target. His country of citizenship, birth, or anything else is irrelevant.

      The laws of war (Yes, I know, but they’re all we’ve got. And we do try to obey them.), are quite clear that any enemy combatant enjoys ABSOLUTELY NO expectation of safety from military attack unless he is either under a flag of truce or otherwise engaged in negotitations, or has surrendered. ANYONE else is fair game.

      War ain’t beanbag and it has nothing to do with ensuring a ‘Fair Fight’. If you get a chance to kill them when they ain’t looking, you take it.

      DCP

        Aridog in reply to DCP. | September 30, 2011 at 4:40 pm

        I can’t disagree, again … and I also do agree that “anchor babies” are an issue to some degree. However, under all circumstances, if anyone naturalizes in another country as a citizen then their US Citizenship should be individually forfeit, whether or not it is individually renounced. Our law should state clearly that either you are a US citizen, or you are not.

        As I said, as a veteran, I take offense to the idea that you soldiers should be restrained from combating an enemy by dint of some vague duel citizenship. The ACLU, now proceeding on Al Awlaki’s behalf, can kiss my rosy backside.

          Milhouse in reply to Aridog. | October 4, 2011 at 12:08 am

          You want to try to amend the constitution? Be my guest. But until you do, this fellow was every bit as much a USA citizen as you are.

    A_Nonny_Mouse in reply to DCP. | October 2, 2011 at 4:50 am

    My take on this is that jihadis are the same as pirates: “enemies of all humanity” who make war upon unarmed civilians. A pirate is different from a mere criminal; and so is a jihadi. Both should be shot on sight.

A couple thousand years ago a certain Chinese fellow noted that the proper goal of the state is justice, and the proper role of the military, effectiveness. He further pointed out that confusing the two, making effectiveness the goal of the state or justice the goal of the military, is a recipe for misery and disaster.

The question at hand is whether someone who was technically an American citizen, yet whose only sworn loyalty was to an ideology of world domination and the complete subjugation or destruction of all non-Islamic, non-Arabist cultures, and who acted as part of an organization practicing both ideological and kinetic warfare against the US and other non-Islamic nations, falls under the role of the realm of the civilian state, or the military.

I think it’s pretty clear which realm he defined himself as operating under.

[…] yet another lawyer, William Jacobson: “Bad facts make bad law, and Anwar al-Awlaki was a bad […]

[…] Professor Jacobson reports on all the usual Leftist suspects crying in their lattes over the fact the Al Qaeda leader who was at war with the US was killed instead of taken to court. He was at war, and violating the Geneva Convention in the process. He knew the risks in going to war with the US — you get dead — and did it anyway. […]

I hope everybody is more careful now about opinions you put on youtube.
If it gets deemed “terroristic” … well, you might be next. No day in court.
Better safe than sorry, right?

    Aridog in reply to votermom. | September 30, 2011 at 6:10 pm

    You damn betcha … if you put up bile sponsoring acts against Americans or American soldiers, if you actively support seditious acts, against other Americans, then you need killin’. Period.

      Ah, but this is the point. Have you listened to the commies and socialists and progressives lately? They deem the TEA Party, by its very existence, as “seditious.” Heck, I’m pretty sure that was a NYT headline at one point.

      I see what everyone is saying, but you’re missing a very simple fact: this administration makes excuses for radical Islam (going so far as to literally delete the words from official handbooks and documents) and have done in-depth studies about “people calling themselves patriots” who support state over federal rights and who are Christians. That’s just fact.

      Let’s just win in 2012 and make this discussion moot.

      Milhouse in reply to Aridog. | October 4, 2011 at 12:10 am

      Sedition is protected by the first amendment. The Alien and Sedition Acts of the 1790s were blatantly unconstitutional. This fellow was not killed for sedition, but for making war on the USA.

Bad facts make bad law? I think not. Constitution is quite explicit, all US citizens are entitled to its protections. Executive enforces the law and judiciary dolls out punishment. Here, the Executive branch acted as judge and jury. And like Abraham Lincoln, sometimes Constitution be damned.

That being said there was plenty of time for the government to move in court to revoke his citizenship and then there would be no constitutional concerns. Anwar al-Awlaki, I am glad he is dead. However, this can be a slippery slope and we should move to have these enemy combatants citizenship revoked before we move to execute them without the judiciaries involvement.

    Milhouse in reply to obpopulus. | October 4, 2011 at 12:14 am

    Constitution is quite explicit, all US citizens are entitled to its protections.

    Really? Where does the constitution say that?

    there was plenty of time for the government to move in court to revoke his citizenship and then there would be no constitutional concerns.Really?! On what grounds? US citizenship, once legitimately obtained, cannot be revoked. How is it that you don’t know that, and yet you prate about the constitution?

It’s really amazing that nobody got it.
This is what you get when you decide that the most important priority is the closing of the prison at Gitmo. It follows that you really don’t want any “high value” prisoners entering the facility (and Congress has already forbid them being transferred to the US), so the only reasonable alternative is to gun them out, without mercy.
Shoot, Eric Holder was out in just the last couple of weeks reemphasizing that Gitmo will close. It’s almost as though they were saying “merciless deaths ahead.”

I have been branded a “terrorist” by the left because I believe in the Tea Party Movement principles. I have been branded “unpatriotic” by none other than Joe Biden because I do not want to give the government more of my hard earned money. I want to “overthrow” this government, not violently, but via the ballot box. Am I in any danger? Maybe not today, but who knows about tomorrow.

Those conflating the killing of a traitorous Awlaki outside the USA with potential killing of political opponents inside the USA are making an unreasonable stretch … regardless of the reckless verbiage by the left here.

Beyond that, just where do you get this idea that US citizens residing outside out the USA have full US legal protections? Nonsense. Total nonsense. Especially if they advocate violence against the USA, sponsor it, and participate in it? Have you ever traveled or served in the military outside of the USA? What do you think a SOFA agreement is? Some folks need a reality check on this, trust me.

That said, some parts of the left here definitely are capable of making this a slippery slope … Obama’s association with Bill Ayers and Bernadine Dorhn comes to mind. Over regulation and selective investigation lately is also troubling, passive attacks, but attacks none the less.

Four things need to happen:

1. Elect anyone but Obama in 2012 … myself I’d vote for Cain in a heartbeat, in both the primary and the general election.

2. The executive branch needs to make a clean sweep of the institutionalized senior bureaucrats in all the agencies, beginning at the SES level and working upwards. SES and above are all appointed and “at will” employees.

3. Elect a Congress that will write only necessary laws in a clear concise and specific manner to remove almost all interpretation divergence by the remaining agency bureaucrats in rule writing. A full moratorium on new rules for 3-4 years would help, allowing only rule removal.

4. Congress needs to pass whatever is necessary, be it law or Constitutional Amendment, to eliminate the dual citizenship status so many hold today … require formal renunciation by native born US citizens if they acquire another citizenship, and require immigrants to formally renounce their former citizenships to their former countries’ governments, as well as the US Immigration Service, and destroy foreign passports. Right now most Arab countries retain citizenship status for US naturalized immigrants (you can 2 or more passports from different nations), and no small number of European and North American nations do as well.

    Sanddog in reply to Aridog. | October 3, 2011 at 7:09 pm

    US Citizens traveling overseas are subject to the laws of whatever country they are living in or visiting. That’s always been the case. However, leaving our borders does not mean you are no longer a citizen and the US government is free to assassinate you should they choose.

    Our laws are not designed to deal with people like al-Awlaki and that’s something the congress needs to address. As it stands now, citizens do NOT lose their right to due process to protect them from the US government if they are not within the jurisdiction of the USA.

    Milhouse in reply to Aridog. | October 4, 2011 at 12:17 am

    Oh, really? And what will you do with people who are dual citizens by birth? How will you force them to give up one of their citizenships, and how will you make it stick?

What is interesting is that overnight it has become accepted that the terror at Fort Hood executed by Nidal Hasan is now an al Qaeda plot of Anwar al-Awlaki.
The Army (or this Administration) never seemed to accept it before, but now it is accepted as fact.

2. The executive branch needs to make a clean sweep of the institutionalized senior bureaucrats in all the agencies, beginning at the SES level and working upwards. SES and above are all appointed and “at will” employees.

3. Elect a Congress that will write only necessary laws in a clear concise and specific manner to remove almost all interpretation divergence by the remaining agency bureaucrats in rule writing. A full moratorium on new rules for 3-4 years would help, allowing only rule removal.

*******************

2. One of the big problems with the present administration is its failure to follow the recommendations of experienced career people. That’s what the “government by waiver” problem is all about.

3. Sounds good. They try to do this already.

These demands are idealistic to the point of delusional.

    Aridog in reply to Valerie. | October 1, 2011 at 11:32 am

    “Experienced career people” in government are those in civil service grades up to GS-15. From experience I can attest they are not listened to … and over the years I think I only knew one SES level careerist who had ever done any of the work supervised or knew anything of substance about their field. They fill space and spend your money by every means available. Period.

    Sadly this malaise is creeping down to the upper GS grade levels now, if located at regional or divisional offices … many of which are redundant and do nothing but fulfill the SES’ers wishes.

    Legislation today is hardly clear and concise. Witness the Clean air Act being used to decide CO2 is a toxic emission. Not event he sponsors of the bill agree with that interpretation. “Rule making” has almost replaced clear law making.

    Yep, my ideals are delusional. Once upon a time in my life I’d not have thought so, but now … I frankly don’t give a damn.

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