Sunday, October 9, 2011

Does Obama Have the Right to Kill An American Citizen?

When will I learn to shut down the computer without looking at Drudge or checking my Twitter timeline before I go to bed?  The New York Times seems to have published this just yesterday, but the discussion has been rattling among my friends and myself for more than a couple of days.  The article entitled Secret U.S. Memo Made Legal Case to Kill a Citizen begins this way:
The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.
The question is this:
Does any President have the right
to kill an American citizen?
I have close friends.  Patriots.  Tea Party people, who believe American born Anwar al-Awlaki should have been killed because he was attacking - or aiding the enemy in attacking our United States of America.

I am the first to get on board air mailing the missile that will vaporize anyone who attacks our country with an intent to kill or injure us.  And this character did much worse.  He grew up with the privileges of US Citizenship and then recruited and embolden treasonists like the Fort Hood serviceman Maj. Nidal Malik Hasan to kill our servicemen and servicewomen while yelling "Mohammad is great."  I can't think of a torture that's painful enough for this traitor.

But there is one thing we need to make sure we are especially clear on.

Is it Constitutional?

Now, before you think I've gone all "ACLU" on you, I think we should slow down a bit and make sure this is as simple as we think it is.  ESPECIALLY with you-know-who in charge and you-know-who-who reporting to him at the Department of Justice.

Was Weird Al (Awlaki) an American?

Weird Al's father thought so.  He also adamantly denied he was a terrorist.  Now I'll admit, the evidence was pretty overwhelming.  Although he had unclear ties to two of the 9-11 terrorists, it was abundantly clear he was involved with the Nigerian man who tried to blow up the Detroit airliner in December of 2010 and the Times Square bomber. That guy said he was "inspired" by the teachings of Weird Al.

So just like Tony Soprano, we decided to take Weird Al out behind the Italian restaurant in Yemen to introduce him to some really spicy 10 kiloton meatballs.  Just one small thing.  As much as we WANT to do that, we truly love this country.  What it stands for and the ideals upon which it was founded.  What sets us apart from every hummus-making hegemony horror is that we have a rule of law.  This little "due process" deal that all the kids have gone nuts over.  And Weird Al's papa filed a lawsuit to prohibit his son from being included on a list of terrorists.

So we're ok now right?  A jury of his peers looked at his citizenship criteria and the evidence and pronounced him either no longer a US Citizen or guilty of treason right?  Wrong.  You are not going to believe this.

A Federal judge dismissed the lawsuit on December 7th, 2010 saying that the father had no authority to stop the US Government from deciding to kill his son.  No peers, no trial, no process.  And I'll quote the New York Times background here and even make it larger so you don't miss it:
In addition, the judge held that decisions to mount targeted killings overseas are a “political question” for executive officials to make — not judges.   (emphasis mine)
WTH!??  A FEDERAL JUDGE SAYS IT IS NOT UP TO THE JUDICIARY TO DECIDE WHETHER AN AMERICAN CITIZEN SHOULD BE KILLED?  I'm sorry people.  DO YOU REALIZE EXACTLY WHO THE "EXECUTIVE" IN CHARGE IS?  Did we decide to simply to do away with the entire "balance of power" concept which was put in place EXACTLY for the purpose to decide what is LEGAL and what isn't?  (Sorry for all the SHOUTING.  This is getting me really worked up.  And that's not the half of it.)
Judge John Bates of the District of Columbia district court acknowledged that the case raised “stark, and perplexing, questions” — including whether the president could “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization." (again, emphasis mine)
So Norman Bates here, pardon me... John Bates admits himself that there might be a bit of a problem in suspending 200+ years of Constitutional law and the fundamental structure to prohibit an EXECUTIVE to take the life of whomever he feels like ... but what the hell.  That Obama guy went to Harvard.  I'm sure he'll make the right decision.  (And this from a BUSH appointee no less.)

Well maybe I'm missing something here.  Maybe the "Executive branch" had already decided Weird Al Wackadoo had forfeited his citizenship and wasn't an American citizen, right?  Let's look at the conditions that can cause your citizenship can be revoked:

  1. Being naturalized in a foreign country; - Nope. He didn't.
  2. Making an oath or other declaration of allegiance to a foreign country; - No.
  3. Serving in the armed forces of a foreign country if those armed forces are engaged in hostilities against the US, You would think he did, but Yemen actually imprisoned him in 2006 and 2007 so there was no "country" at war with the US.
  4. Making a formal renunciation of US citizenship before a US consular officer or diplomat in a foreign country; No record of this or the administration would have argued it.
  5. Making a formal written statement of renunciation during a state of war, if the Attorney General approves the renunciation as not contrary to US national defense; No and no.
  6. Committing an act of treason against the US, or attempting by force or the use of arms to overthrow the government of the US. Ahhhh! It would seem we have a winner except for the fact that "Renunciation by this means can be accomplished only after a court has found the person guilty."
"But PolitiJim!  He was making war against the US and clearly was a traitor!" Listen. I'm all for cooking the dude in the new George Foreman Convection Oven on "burnt."  But our Constitution has been under assault for at least 100 years and is getting harder and harder to read in broad daylight.  Don't you remember what the Democrats did in passing bills before they read them? Or suspending 200 years of Senate rules? Or attaching the piece of one bill to another that had nothing to do with healthcare so that they could force through a bill they themselves didn't have enough votes for? And a LARGE majority of America didn't want?  Imagine what they would do with "right" to determine which Americans should be killed without it ever going public?  Don't you remember Big Sis's Homeland Security declaration that all of us Right Wingers were Terrorists?  (Am I sounding like Glenn Beck right now?  Damn!  Wish I had a chalkboard. Or Glenn's money.) Why is it such a big deal to NOT have a trial on this guy?  We have evidence - even testimony from the Times Square Terrorist - this guy aided and abetted the enemy.  Hold a trial, find him guilty of treason and fry the ****** ******.  (fill in your own curse words here.) Read the whole background of the guy here.  But we know there was no trial to declare him a traitor.  So find me where he revoked his American citizenship.  It is actually much deeper than that if you read the entire article. We always use the line, "I hate what you say about America, but I will fight for the right for you to do so," because we realize the Catch-22.  If you prohibit people to say whatever despicable things they want, against our country or us, when those people are in power they can use the same law against us.  This is the beauty of having a written legal standard to decide disputes - not kings, or judges, or Presidents.  Or mobs. Let's go back to the opening paragraph in the article.  It said, "The Obama administration’s secret legal memorandum that opened the door to the killing of..." (Weird Al).  What other "secret legal memorandums" are floating about that don't see the light of day?  Especially those that dictate actions against American citizens - much less killing? And how in the hell can it "be lawful only if it were not feasible to take him alive?" Since when is killing LAWFUL..unless we don't kill him?  This sounds like Janet Reno and Waco, Texas all over again. I've been telling you conservatives who want to bury the "unpleasant" crimes of this administration that it will come back to haunt us in terrible ways.  The administration now has, in addition to taking over private enterprises, suspended democracy in Congress to force through unpopular (and unconstitutional) privatization of 1/6th of our economy, freely lent money to foreign countries and foreign banks which could bankrupt the nation and now, given power from a FEDERAL JUDGE to decide if an American citizen should be killed without a trial?
Pardon me while I spit on your 8X10 personally signed GOP donor gift picture of Ronald Reagan. Either we have a Constitution that gives protections to make sure we get it "right" on using the power of government against the very worst of us - or we have no Constitution at all.  I agree with Rush and any number of other commentators on this "suspending elections" business.  The idea floated by some crazy liberal Governor in North Carolina wasn't isolated.  Former White House Budget Director, Peter Orszag wrote an article in the New Republic recently as well.  And let's not forget the Executive Orders passed within Obama's first year to suspend the internet and take over private businesses in case of an "emergency."  Wasn't there MORE of a threat directly after 9-11?
Go back to when Scott Brown was elected and we thought the ObamaCare coffin was nailed shut.  Or when the "blue dog" Democrats would never abide by the pro-abortion provisions.  Or when we thought, surely, the White House couldn't NOT prosecute a racist with a club threatening voters at a Philadelphia voting booth.  J. Christian Adams new book showed up just in time for Halloween.  And Freddie Krueger IS in the White House. It is not just enough to vote these people out of office.  Reform is needed to (legally) tear down and rebuild EVERY major governmental operation from the FDA, the EPA, the Department of Justice to the continually expanding Executive powers of the President.  If not, these people will continue to infiltrate and nibble away at the fundamental spirit of the Constitution until some court WILL find it "legal" to suspend elections.  Judges like Bates need to be impeached.  The corruption is too deep, too ingrained. And it's not going to be done without a strong, principled Constitutional Executive who has proven they have done it before and aren't afraid to educate American voters to root out this cancer.  A pretty looking President may even repeal ObamaCare, but there has to be a "fire in the belly" to not care about anything other than re-educating America on why our Constitution is so precious and in leading an effort to reform every aspect of governmental abuse and tyranny. Did Anwar al-Awlaki deserve to die?  NO. In fact, HELL NO - if his Constitutional rights as a US Citizen were suspended. Let's pray 20 years or 20 months from now this line isn't famous:
I didn't speak up for the Islamic Jihadist Americans when they were killed, because I wasn't one.


it really is not difficult to understand. The first thing you have to do is get past your acceptance of the left=-wing pro-jihadi twisting of the word "assassination". This was not a politically inspired killing designed to take out a political leader. This was a military operation designed to take out one of the enemy's operational commanders -- the type of person who has always been considered a legitimate target during war. The only way you can deny this reality is to argue that there exists no belligerency between the US and al-Qaeda at the instigation of the latter and endorsed by Congress following 9/11 -- something I don't believe that you or any sane person is prepared to do.

Having established that Anwar al-Alwaki is a military rather than political target, the rest all falls into place without any problem at all. As commander-in-chief of the US military, the President has the authority to direct military operations against the enemy -- including targeting enemy commanders, who are military targets by definition. Consider, for example, the targeting of Admiral Yamamoto in 1943.

Ought al-Awlaki's citizenship have received any consideration in this instance? I would answer that it was irrelevant. Al-Awlaki was a target because he was an operational commander of the enemy, and in the interest of making future attacks less likely and less likely of success. Let me analogize back to Yamamoto -- would targeting him have been illegitimate if he had dual citizenship? The answer is obvious.

But let's look at the last time our government leaders ordered the targeting of American citizens who were making war on the US without giving them a court date first. it was a little thing called the Civil War, and took place 150 years ago. Did Lincoln have the authority to commit troops to combat? Did he have the authority to order them to kill the enemy -- virtually all of whom were US citizens -- without their first having been judged guilty by a jury of their peers? Or was the anonymity of those killed a sufficient buffer against the sort of concerns you raise here? You know, since he didn't order, for example, the targeting of Confederate General Ambrose P. Hill, General Hill's death at Petersburg without due process of law was not a problem. Personally, I'd find that sort of broad anonymous killing of American citizens without due process of law even more troubling if there is something illegitimate about targeting a specific American citizen enemy combatant who has been neither indicted nor convicted. That is all overcome, however, by recognizing that the nature of war is that the commander-in-chief orders military personnel to kill the enemy, regardless of their citizenship, without recourse to the courts.

And that is key. If we are at war with al-Qaeda, then its members are legitimate military targets. If we accept that the 2001 resolution authorizing force against al-Qaeda -- which is still American policy -- is the functional equivalent of a declaration of war, then the President can target al-Qaeda wherever they are, regardless of citizenship. And while capturing the enemy might be the more humane thing, there is no law of war or American law that requires that an army capture rather than kill an enemy who has not surrendered or otherwise rendered a non-belligerant.

And in the end, that is what this comes down to -- the authority as commander-in-chief includes the right to order troops to engage and kill the enemy. That is what happened here, and so there is no problem.

Of course perhaps your real problem is not that al-Awlaki was a target, but that we didn't give him a fair chance to kill American troops while the were trying to take him out. If that is it, then boo-freakin-hoo. The fact that we can now eliminate enemy commanders without endangering our troops is irrelevant.

Thanks Greg. The key in our difference of opinion is this statement:

Ought al-Awlaki's citizenship have received any consideration in this instance? I would answer that it was irrelevant. Al-Awlaki was a target because he was an operational commander of the enemy,

Citizenship can NOT be irrelevant if it isn't clearly defined by law. Otherwise ANY administration can simply declare someone an "enemy" and take them out. Similar to what was done in WACO with the Branch Davidians.

The 'law' (or Constitution) isn't clear about enemies who are attacking on behalf of an IDEOLOGY or RELIGION instead of a sovereign government.

Just because you 'use' the military doesn't mean it qualifies as a military action. If it is a civilian - as it looks like this person is - he has rights UNDER THE CONSTITUTION.

There are a million ways to address this up front to accomplish the same goal - but BHO did not use those methods. WHY!?? He could have ocnvened a court in absentia to declare him a traitor, among other things.

WHY allow foreign nationals at GITMO protections under OUR Constitution - but not AMERICANS who are doing the same thing?

My purpose (underscored by Ron Paul and others) is to explain that the reasoning the White House has used, combined with their declaration that anyone who is part of the RIGHT WING of the country is a "terrorist" per the Homeland Security declaration - legally entitles them to target Americans without due process. Remember, it is bad decisions and bad interpretation of law that become the basis for corruption.

Your stance that you BELIEVE it was a military operation doesn't hold water according to JUDGE THAT GAVE THE WH permission to decide!

I'm shocked you are arguing your point when A)It is by an administration that is tied to direct threats of violence in the Wall Street protests and B) your stance gives these people even more power.

So that is my take.

Oh - to address your 1943 case - it doesn't apply here because the subject was working behalf of a sovereign entity (Japan) which is clearly covered by a multitude of precedents as shown in their decision.

I'll point to something we agree on.

WHY allow foreign nationals at GITMO protections under OUR Constitution - but not AMERICANS who are doing the same thing?

WE SHOULD NOT BE! Bush43 screwed the pooch on that one, and the administration has kept the pelvic thrusts going.

But the fact that policy is wrong on the terrorists at Gitmo doesn't mean that we also have to have an erroneous policy on operational leaders of an enemy in time of war just because they happen to be US citizens.

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