A Defense of Tyranny?

I’m pretty fascinated by this attempt by one of John Cole’s readers to defend the Administration’s stance on assassinating US citizens. It’s fascinating and not a little disturbing, but it deserves a response, if only to clarify precisely what the problem with the Administration’s filing last Friday is.

The reader starts with this:

On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him?

For starters, this question misrepresents what the suit tries to do. The suit readily admits that the government has the right to kill someone who presents an imminent threat. The plaintiffs are asking for the judge to prevent the government from killing Anwar al-Awlaki unless he is, in fact, an imminent threat.

Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death. [my emphasis]

Moreover, John’s reader misstates the argument the government is making. They refuse to grant that the only legal basis they’d have for assassinating al-Awlaki would be because they had determined him to be an imminent threat and never once argue that he is an imminent threat, particularly not that he, personally, as opposed to AQAP more generally, is an imminent threat.

For example, even assuming for the sake of argument that plaintiff has appropriately described the legal contours of the President’s authority to use force in a context of the sort described in the Complaint,

In fact, as I have shown, the government refuses to lay out its entire argument for claiming it has the authority to target al-Awlaki.

Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war.

One thing is clear, though: the government is claiming to have the authority not only through international law (the “imminent threat”), but also the AUMF. But it’s not at all clear the AUMF does grant them that authority (and this is one reason why John’s reader’s appeal to the political branches is so problematic). AQAP was not included in the AUMF. No  one has ever claimed it had a role in 9/11, which is how the AUMF defines the opponent. The decisions on habeas cases have been mixed about whether attenuated connections like AQAP’s are strong enough to be included in the AUMF and because of it, legally detainable. John’s reader just ignores that the primary basis for which the government claims authority to kill al-Awlaki is the AUMF (even if they refuse to say whether AQAP is al Qaeda, or only affiliated with al Qaeda). But that basis is contested.

But let’s set aside the problems with the government’s claim to authority under the AUMF for the moment and focus instead on what John’s reader seems comfortable with: the “imminent threat.” John’s reader seems satisfied that al-Awlaki’s role in the Christmas day bombing makes him an imminent threat. There are two problems with that. First, we have a tradition in this country of requiring the government to prove the allegations it makes against people. Here’s how the government presents this allegation, in James Clapper’s public declaration.

Since late 2009, Al-Aulaqi has taken on an increasingly operational role in AQAP, including preparing Umar Farouk Adbulmutallab [sic], who attempted to detonate an explosive device aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from al-Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace.

Particularly given the government’s reported belief, before the Nidal Hasan attack, that al-Awlaki’s activities extended only to First Amendment protected speech, we deserve to know how they determined that his activities since then have become operational. If we know that from classified intercepts, then the government can share them with the Court without disclosing them publicly. If we know that solely through Abdulmutallab’s interrogations, then we deserve to know the circumstances surrounding those interrogations, not least whether Abdulmutallab was promised he would not face the death penalty if he implicated al-Awlaki.

More importantly, we have means to do all this–to have a judge weigh the evidence to make sure the government’s allegations are true. That’s a trial. And for some reason, the government has chosen not to charge al-Awlaki with conspiracy in Abdulmutallab’s crime, and therefore chosen not to expose its evidence to the scrutiny of a judge. I wouldn’t necessarily have much reason to doubt the government’s claims about al-Awlaki, but the government loses a great deal of credibility when they choose not to avail themselves of the means to prove those allegations.

If the case against al-Awlaki is strong enough to kill him, then it ought to be strong enough to prove in a court.

And then there’s the other problem with the claim that al-Awlaki is an “imminent” threat: the timing.

If the government really were justifying its targeting of al-Awlaki because he’s an imminent threat (they don’t commit to that argument, but it is what John’s reader argues), then they’d effectively be arguing that al-Awlaki has been an imminent threat since at least December, when he was on a JSOC kill list. And yet, in that entire period, the only thing the government alleges al-Awlaki personally has done is make a video praising attacks on the US and justifying jihad. (It does note that AQAP claimed responsibility for an attempted assassination of the UK’s Ambassador to Yemen, but does not claim al-Awlaki had an operational role.) That video may be dangerous, but it’s the kind of thing that the government had previously considered protected speech.

Plus, there’s another timing problem. John’s reader points to the designation of al-Awlaki as an operational member of AQAP as justification for the claim that he is an imminent threat.

But that didn’t happen until July 16, 2010, at least seven months after JSOC put al-Awlaki on their kill list, and three months after CIA put him on their kill list. In fact, AQAP as an organization wasn’t even on the UN’s terrorist list until several weeks after al-Awlaki was put on JSOC’s kill list.

So if formal designation as a terrorist is what makes assassination okay, then the government was clearly not justified in targeting al-Awlaki in December, even if they are now. But that would admit the entire point: that the government is targeting people without legal basis to do so.

From his defense of the government by making an argument they don’t make (that al-Awlaki is an imminent threat), John’s reader then accepts an argument the government makes: that al-Awlaki has access to the courts.

How about your argument to rebut the government’s position that, under the Constitution, he has no basis to make a habeas-type argument because he is not being denied access to process, he’s refusing to submit himself to the judicial process in the US?

Setting aside the fact that accused terrorists have fairly routinely been denied the opportunity to challenge their designation as such in court, John’s reader accepts the more troubling implication in the government’s filing: that a citizen who has been formally charged with no crime, but is nonetheless targeted for killing, bears the burden of challenging that targeting in court. That shifts the entire burden from the government to the citizen! That’s the whole point of this suit–to demand that the government give a citizen his due process guaranteed under the Fifth Amendment.

From there, John’s reader argues that the judge will review the government’s claim to state secrets and that al-Awlaki’s father might not have standing. Those are stronger arguments. (And I think one likely outcome of this suit is that Judge John Bates bounces the suit on the standing issue, just as he did with Valerie Plame’s suit, because it is by far the easiest solution for him.)

And if all the government argued in its filing is that al-Awlaki’s father doesn’t have standing, then those of us who are so upset would still be upset, but not so horrified.

But that’s not what the government did. It repeatedly asserted it had the authority to kill al-Awlaki with no due process, even as it didn’t commit to what the basis for that authority is.

John’s reader, apparently, thinks that the government has legitimately described the question of whether it kills American citizens with no due process as a political question.

Last, do you have a rebuttal to the argument that the case itself presents non-justiciable political questions that are outside of the purview of the courts? Do you believe that the Article III courts should be able to override the authority given to the other two branches in Article I and II for pursuit of foreign policy and military actions?

I see only three ways you can argue that this is appropriately a political question over which judges should have no purview.

  1. Congress really did pass an AUMF that covers this case.
  2. The Executive Branch’s targeting decisions of both groups and individuals are not reviewable by the courts.
  3. The Executive Branch really does have the authority to kill its citizens because it says so.

Now, as I have noted, it is not at all clear that the political branch that has the authority to declare war has declared war against AQAP. It may be that a judge would say they have, but in habeas cases, judges have been mixed. And one reason this is critical is because the Administration repeatedly suggests that targeting al-Awlaki is authorized because he is on a battlefield.  He’s not until Congress says he is, and it’s not at all clear they have (though I don’t doubt they would if the Administration asked them to.)

The question of whether the courts can review whether a citizen is an imminent threat is the entire point of this suit. But the government actually refuses the premise, arguing that it can’t be held to the general standard that it only kill someone who is an imminent threat because things like tactical analysis and diplomatic considerations might trump it.

Moreover, the declaratory and injunctive relief plaintiff seeks is extremely abstract and therefore advisory—in effect, simply a command that the United States comply with generalized standards, without regard to any particular set of real or hypothetical facts, and without any realistic means of enforcement as applied to the real-time, heavily fact-dependent decisions made by military and other officials on the basis of complex and sensitive intelligence, tactical analysis and diplomatic considerations.

Aside from reminding, once again, that according to David Ignatius, we first considered targeting al-Awlaki because Yemen asked us to–that is, Ignatius suggest we targeted al-Awlaki entirely out of diplomatic considerations–note what this passage argues. It’s not just that it says a court can’t review whether al-Awlaki is an imminent threat (not even in the nine months al-Awlaki has been targeted). It’s also saying that tactical and analysis and diplomatic considerations may be determinative on whether someone is an imminent threat or not. Effectively, the government is rejecting that it should comply with the “imminent threat” standard because other things might trump it (and, presumably, trump it in such a way that a judge wouldn’t agree or shouldn’t be allowed to judge).

There’s one more thing the government does to support the argument that they alone should be able to determine whether al-Awlaki, the individual, is a threat: they point to case law that says the political branches have the authority to determine what foreign groups are threats.

As the D.C. Circuit stated in El-Shifa —a case that involved the President’s decision to launch a military strike against a facility in Sudan that the United States believed was associated with Osama bin Laden—“[i]f the political question doctrine means anything in the arena of national security and foreign relations, it means the courts cannot assess the merits of the President’s decision to launch an attack on a foreign target.” 607 F.3d at 844. Addressing the Baker standards, the Court in El-Shifa observed that “whether the terrorist activity of foreign organizations constitute threats to the United States” are “political judgments” vested in the political branches. [my emphasis]

There’s a whole bunch of this similar language, showing that courts have supported the political branches–and even the Executive Branch alone–authority to decide what foreign organizations are a threat.

But as far as the reporting goes, this is not about the government deciding that AQAP locations themselves to be legitimate targets. Questions of international law and efficacy aside, I have a lot less problem with al-Awlaki being killed because of his presence at an AQAP site (though that’s precisely how the government “accidentally” killed a Yemeni Deputy Governor in May, not to mention uncounted numbers of civilians in Pakistan). And I’m more comfortable with the way the government killed Kamal Derwish, even if the claim that they were targeting Abu Ali al-Harithi and not Derwish personally is just a legal facade. This is about targeting a named American citizen against whom the government has not proven any allegations justified more generally because of the association the government alleges that citizen has made. And the government’s filing actually doesn’t present legal authorization to do that.

Which leaves just the “I can kill and American citizen because I say so.”

Now, again, that’s not what John’s reader is saying. I guess he’s defending this argument on the grounds number two–that what is an imminent threat is strictly political and so courts shouldn’t be able to review it.

But particularly given the Administration’s refusal to even lay out what it considers its authority for targeting an American citizen, I’m not so sanguine with that. Once something vaguely called a political consideration can trump due process, and once we allow the government to make claims against other citizens without offering any proof, then nothing limits what the government can do to its own citizens.

Anwar al-Awlaki may well be a dire threat to the US (though I question whether he is an imminent one). But before the government kills him, I’d like them to prove it.

  1. MadDog says:

    The second Abdulmutallab in this sentence should read al-Awlaki:

    …not least whether Abdulmutallab was promised he would not face the death penalty if he implicated Abdulmutallab…

  2. MadDog says:

    Two weeks ago when I first read AP’s Matt Apuzzo’s article about the Administration considering charging al-Awlaki, I noted at the time that I suspected the Administration was retroactively trying to fill in the horrendous Alice in Wonderland hole they had with respect to their al-Awlaki Kill Orders (i.e. sentence before trial).

    Another thought that arises now with the Administration’s “non-specific rationale” response in the ACLU & CCR lawsuit that you’ve so strongly made the case for, is that, as mentioned in Apuzzo’s article, the most that the Administration might have against al-Awlaki is their last-resort, kitchen-sink, “material support” charge where anything even remotely beneficial to a terrorist organization such as a speech praising some aspect of the organization is sufficient in the Administration’s mind.

    Basically what I’m saying is that the reason the Administration doesn’t lay out a credible argument in the ACLU & CCR lawsuit is because they don’t have one.

  3. MadDog says:

    I would like to focus on the following bit from page 8 of Clapper’s public declaration (and EW, you’ve got the wrong link in your post. Yours goes to Clapper’s secret declaration) and ask that our fine resident attorneys chime in with their thoughts:

    …In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from al-Aulaqi to detonate an explosive device aboard a U.S airplane over U.S. airspace

    (My Bold)

    My questions for the resident lawyers are as follows:

    Assuming for argument’s sake that Clapper was not exaggerating or embellishing when he declared that al-Aulaqi instructed Abdulmutallab to detonate an explosive device aboard a U.S airplane, would you as either a prosecutor or defense attorney be convinced that this “evidence” was easily sufficient to convict the defendant al-Aulaqi?

    By that I mean would you “need” anything more to convict? Yes, I understand that having more would be “nice”, but the question is whether more would be “necessary”.

    And let’s further assume that the “evidence” was wiretap audio evidence and that the prosecution could empirically prove that it was defendant al-Aulaqi’s voice. Sufficient to convict the defendant al-Aulaqi or not?

    Now let’s assume that the “evidence” was instead an intercepted email between what the prosecution believes was Abdulmutallab and al-Aulaqi. Sufficient to convict the defendant al-Aulaqi or not?

    • MadDog says:

      And a couple of additional scenarios come to mind:

      1. Abdulmutallab may have confessed that al-Aulaqi instructed him to detonate an explosive device aboard a U.S airplane. If so, one wonders if this was before or after a Miranda warning, and if this was before or after a lawyer was requested.

      2. The US government may have “induced” Abdulmutallab into a claim that al-Aulaqi instructed him to detonate an explosive device aboard a U.S airplane.

      3. The US government may simply “believe” that Abdulmutallab claimed that al-Aulaqi instructed him to detonate an explosive device aboard a U.S airplane.

      IANAL, but each one of these scenarios seems more problematic in trying to convict al-Aulaqi, but I’ll leave the courtroom judgment to my legal bretheren betters. *g*

      • emptywheel says:

        I think one of those are the case. It may be they don’t want to indict al-Awlaki because the evidence–which we know comes at least in part from Abdulmutallab–is tainted, and if they reveal that, then their prosecution of Abdulmutallab will be tainted as well.

        • MadDog says:

          And even if it were not tainted, I’d hazard a guess that Abdulmutallab as a testimonial witness would provide quite a meal for an al-Aulaqi defense attorney.

  4. tjbs says:

    Section two The congress shall have the power to:

    “11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”

    The AUMF is not a declaration of war and therefore required that,

    “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”

    That has never happened.

    Furthermore we, by treaty, agreed not to commit aggressive wars and we did.
    To unsign the UN Charter would require another amendment to our constitution.

    That has never happened.

    The AUMF is illegal and unconstitutional.

    So on 9/11 the constitution was suspended, with no mechanism visible to unsuspend the the illegal suspension of our binding agreement with those who would govern us.

    • ondelette says:

      Half working off of what you said, and half working with it, you raise a serious question. The AUMF, at least in this case, if it really does authorize the President to go use the military to go after al Awlaki, which it appears it might, appears to authorize the President to do a range of things only some of which are legal, since using the military to commit acts of war where there is no war is not legal. Does the authorization therefore implicitly confer on the President the authority to decide what’s legal and illegal by himself, or is the AUMF illegal or not valid on its face, therefore? Isn’t authorizing the president to make such decisions a violation of separation of powers?

      (It appears to authorize the President to violate the laws of war, which since they are part of a set of binding treaties (the Geneva Conventions of 1949) that take a year to denounce, and since the War Crimes Act makes it illegal to violate those treaties, means logically what I said above).

  5. b2020 says:

    “that what is an imminent threat is strictly political and so courts shouldn’t be able to review it”

    That makes no sense? Tactical, operational, strategic, military matter, national security issue – all that I can see. Policy, even. Incidentally, all of those are subject to legal review if they happen to be in conflict with the law – yes, even tactical orders. That’s what the whole concept of war crimes is about at the grunt level.

    Political? Political is my decision to vote, and your sales job to get my vote. Politics is not subject to legal reviews, because it is essentially free speech. Is the right to kill US citizens by secret accusation just an expression of the First Amendment rights of the Executive?

    • eCAHNomics says:

      Is the right to kill US citizens by secret accusation just an expression of the First Amendment rights of the Executive?


      • stevo67 says:

        Imagine if Nixon believed this to be true, eCahn. the entire “enemies list” disappeared ala 1970’s Chile and Argentina. Obama certainly knows that his targeted killings policy establishes a precedent for the next insane Bush or Cheney clone to go even further. Like all sociopaths he just doesn’t care.

    • Adam503 says:

      Alan: “Some people are just bad people.”

      Except for that little detail that a fat chunk of the people we say are terrorists, and you say are “bad people” haven’t done one gawd damn thing wrong. They are completely innocent.

      • alan1tx says:

        NYT says Anwar al-Awlaki advocates violent jihad against the United States.

        He’s linked with Maj. Nidal Malik Hasan, 13 dead at Fort Hood, Tex.

        To Umar Farouk Abdulmutallab, Detroit-bound airliner on Dec. 25.

        To two of the 9/11 hijackers.

        To Faisal Shahzad, the would be Times Square bomber.

        Dream on.

        • bmaz says:

          At best, the proof so far is that, at some point, Awlaki talked to these individuals, had emails with them or that they attended lectures or sermons he performed. That is it. The Alwaki emails with Hasan that I saw reported were not damning. The US was aware of the supposed 9/11 contacts years ago and made a specific determination there was nothing criminal. The only real evidence of contact with Abdulmutallab was that Abdulmutallab attended a lecture years ago. Now there may be way more on Hasan and Abdulmutallab (the 9/11 guys are pretty much a closed book), but there is no compelling evidence of that, much less proof. And the US government has proven themselves dishonest and deceptive on such allegations; that we do have proof of.

  6. tammanytiger says:

    The commander-in-chief power has grown since World War II; and, under George W. Bush, became a constitutional black hole that threatens to swallow up the entire Bill of Rights.

    I had hoped that Barack Obama, who taught Constitutional Law at a top-tier law school, would put the “war president” genie back in the bottle. Instead, he entrenched the Bush war powers and has moved to expand them.

    Thanks to the actions of Bush and Obama, it is only a matter of time before we face a “national emergency” that will impel Obama, or one of his successors, to do away entirely with the constitutional system of checks of balances. The only question is whether a Republican president does it to put an end to dissent or a Democratic president does it to avoid being seen as “weak on national security.” Either way, the result will be the same.

    • stevo67 says:

      I had hoped that Barack Obama, who taught Constitutional Law at a top-tier law school, would put the “war president” genie back in the bottle. Instead, he entrenched the Bush war powers and has moved to expand them.

      That was my “hope” as well. Obviously the trappings of the office of Caesar, i mean POTUS, certainly put the kibosh on that naive dream.

      I guess the old saying is true after all…”Power corrupts, and absolute power corrupts absolutely.”

  7. stevo67 says:

    Is the right to kill US citizens by secret accusation just an expression of the First Amendment rights of the Executive


    That would seem to be the point made by John’s reader. John, to his credit, disagrees absolutely.

  8. alan1tx says:

    Who would have thought Obama would channel Orwell. ” We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm. “

  9. Adam503 says:

    Even SECDEF Gates admits 10% of the worst of worst prisoners that get through the US “military justice system” and end up at Guantanamo are completely innocent of any wrongdoing whatsoever. Likely a much high innocence percentage.


    Just using SECDEF Gates on the record public admissions, there’s historical evidence there’s a 10% chance anyone anyone the US Federal Government charges is a terrorist is completely innocent of wrongdoing. Again, likely a much high innocence percentage.

  10. powwow says:

    I’m going to take the liberty of copying and pasting here some comments made about the al-Awlaki situation by a couple of commenters at volokh.com – one giving a U.K. perspective – who both, I think, state the case very well and accurately spell out the larger implications that emptywheel is rightly keeping in sharp focus.

    David Schwartz said [emphasis added]:

    [Dutch Commenter] Martinned: If the US have casus belli against Yemen, as it appears they think they do, they [the Congress, that is, though Martinned is rather casual about that distinction – pow wow] may start a war with Yemen, putting it inside the boxing ring that is a war zone. (Not the entire country, mind you, but only the parts where actual fighting is going on.)

    Right, and the reason for that [would be] military necessity. It’s simply not possible to fight a war with courts and lawyers. It’s not that our enemies don’t deserve a day in court, it’s not that we don’t trust our courts to get things right. It’s simply that there is no other way to fight a war. Where there is not [such a] level of military necessity, there is no moral justification for bypassing the legal process. The power cannot legitimately extend beyond its moral justification.


    We violate people’s rights not to be killed, bombed, and otherwise punished absent judicial conviction *only* when absolutely required to do so. Otherwise, we are lawless murderers.

    Litigator London said [emphasis added]:

    [Commenter] Ken Arromdee: In a war, surrenders without warrants or indictments happen all the time.

    As far as I know, the USA is not at war with [] Yemen and is not now at war with Afghanistan or Iraq. The Bush Administration’s Global War on Terror™ was and remains a juridical nonsense.

    The gentleman who is targeted [al-Awlaki] may well be a traitor, a conspirator to murder or guilty of lesser felonies, I know not. But then he can be extradited, or the USA can wait until he gets to a territory which will surrender him to receive due process. The idea that he can be killed on the basis of a simple lettre de cachet is abhorrent. Louis XIV has been dead a long time.

    I’ve read the [ACLU/CCR] Complaint and the DOJ Brief and it all seems on its face to smack of one of the Latin American Juntas of the Reagan era (or worse). I know things had sunk pretty low under the Bush Administration, but really!

    Does Section XXIX of Magna Carta 1297 now have no relevance in US law?


    It really is at first glance extraordinary for a President who actually taught law at a fairly respectable university to be claiming a right to outlaw a US citizen by executive fiat — because that seems to me to be in substance what is being done.


    The Court is asked whether it is lawful for the executive to establish a list of people who may be killed on sight (and then [to] do so). I think the answer to that question ought to be a resounding “no”. The trouble is that hard cases make for bad law and my fear is that rather than reach the merits, the temptation for the Courts [starting with Judge John Bates, as EW points out] will be to seek to avoid having to answer that question of general public interest, by taking the easy but intellectually and judicially dishonest route of upholding one of the technical objections in the government’s brief.

    This is a matter of enormous international interest.


    It may well be that the notoriously out-of-control CIA has long been doing this, just as the Soviets did during the cold war and just as Quadaffi did to a friend of mine in London (and as Israel is known to have done). But for the US Courts to sanction the practice, even by omission, seems to me to be a most dangerous precedent.

    We’re in dire need of less federal judiciary traffic on the “easy, but intellectually and judicially dishonest route,” when addressing these increasingly-grave matters of Executive overreach, and/or Congressional abdication. Starting about five years ago. Meanwhile, do note the sort of petitioner pursuing “state secrets” and “due process” claims, that our Supreme Court solicitously deems (and tellingly does not deem) worthy of its attention in this new term.

  11. earlofhuntingdon says:

    I was just wondering how someone on the government’s kill-on-sight list would be able peaceably to enter a US jurisdiction, and on and with advise of counsel, turn themselves in. What conduct could such a target reasonably expect to confront? To be immediately tasered or shot to death? What “due process” rights, the kind that any drug kingpin, mafioso don or bank ceo up on criminal fraud charges could expect, could such a target reasonably expect to have when the government he’s supposed to turn himself in to has thrown out such rights by placing him on that list?

    The notion that such a target can readily, peaceably and with adequate legal representation defend himself in court has dropped down the rabbit hole along with other civil rights in the surveillance state.

  12. bluedot12 says:

    Well, I freely admit I am not a lawyer. So what I see here is a guy running from the law. He could easily turn himself in and then we could have a trial. But he won’t. In effect he has a wanted poster on him and it reads dead or alive. Anyone who trys to kill hundreds of americans is a fugitive from justice. So the message is just this (and pardon my french): Surrender or die mother fucker. See you in hell. (that’s what happens when people die in twin towers and another MFr wants to do the same thing. )

    • bmaz says:

      Running from what law? There is no charge against him. None. There is no lawful arrest warrant. None. In fact, when he left the US, he did so with the full knowledge and blessing of the US. So, really what you said is dead wrong; other than the fact we want to kill him of course.

        • bmaz says:

          Well, let me rephrase then: that is an ignorant crock of manure and you have no understanding of what the law is. Apparently no understanding of simple logic either. He is NOT a fugitive from jack shit. Oh, and get lost; we do not act like that around here.

        • spanishinquisition says:

          How can you have a trial if there aren’t any charges? How do you know he did anything criminal? Do you believe a President Palin would have the right to unilaterally issue death orders without being subject to the judicial system?

  13. pdaly says:

    emptywheel, have a great trip through western Scotland.
    I’m hoping Elizabeth Warren will, in her new capacity as an Assistant to the President, remind Obama of his contract (is an oath a contract?) he made with the US citizens upon assuming the Presidency:

    “I do solemnly swear (or affirm) that I will
    faithfully execute the Office of President of
    the United States, and will to the best of my
    ability, preserve, protect and defend the
    Constitution of the United States.”


    Quick edit:

    Which leaves just the “I can kill and American citizen because I say so.”

    I think you meant “any.”

  14. orionATL says:

    “a defense of tyranny?”

    consider this:

    “The suit readily admits that Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; …”

    it seems to me there is a very dangerous lacunae in logic here.

    a policeman or policemen can respond to “imminent threat”

    a soldier or soldiers or military unit can respond to “imminent threat”.

    these are human entities.

    a “government” is not a human entity; it is a human social artifact.

    governments have no right to kill based on “imminent threat”.

    take the case of the sept 2001 airplane bombings.

    the fbi, had it gotten off its ass, could have prevented that catastrophy.

    it did not.

    but suppose it had.

    this exemplifies “immenient danger”.

    would the appropriate “government” response have been to go to the airports and shoot the plotters?
    normally, that is not done.

    so how is a cleric, by his words only,

    an “immenient danger” to the government of the u.s.?


    it is impossible for words to be an imminent

  15. thanos says:

    I’m really surprised at the death of the idea of ‘bad precedent’ in American discourse. And I’m not talking lawyers. I’m talking over coffee, at the bar, in the classroom style discourse.

    This didn’t used to be a hard sell. Americans used to understand, hey, you give the president the ability to assassinate U.S. citizens abroad without charges, even if the guy they’re trying to kill is a really bad guy, guess what? Tomorrow the President may be a bad guy, and he may decide that you’re the one who gets offed, or your wife, or your child. Or just some poor American who spoke up. And when state secrets trump a jury of your peers, you don’t have any recourse. You run until your government kills you, and that’s not America.

    But on 9/11 – scratch that, after a lot of people went to work on our rights after 9/11 – it became totally okay to carve out exception after exception to the general rule, “ask yourself: would you like the person you like least to have this power if he was elected President?” Because these Terrorists, they’re Bad Guys, Evil Men, living Exceptions to the Rule. No one would ever DREAM of abusing these powers, made especially for Bad Guys, and they’ll just fade away when we win. Right? Right?

    Yeah, that’s America all over, slavish trust in our government and its right to attack its citizens with impunity. That’s what our ancestors died for, our complete obedience to the people in charge when faced with threats, even when they can’t exactly tell us what those threats are, and we just have to believe they know better than us.

    It’s like how everyone on the street, including conservative Christians, used to be able to recite with conviction that Voltaire quote in some permutation about defending to the death your right to say something. And since 9/11, yeah, you have the “right” to say something, or worship your god, or get a fair trial, but don’t ask me to get involved, say plenty of Americans. You might be one of those Exceptions, and then I’d be whisked off to some crazy prison camp and I’d have only myself to blame.

    We need to turn this back around.

    • Miep says:

      What a great comment.

      I’ve been blogging on Daily Kos for a couple of years. I’ve known about FDL, though.

      May well be time to move. Even if I don’t rate posting essays, the breath of fresh air, of *real* free speech, is very seductive!

  16. omen says:

    al qaeda uses the same argument to justify their killings. i thought we were better than they. we are as lawless as the terrorists.

  17. stuartbramhall says:

    I think Obama needs to start telling the truth about the real reason we are at war in Pakistan (and Afghanistan) instead of scapegoating like al-Awlaki. Not only is it a violation of the Constitution and international law, but it’s behavior more consistent with a Mafia don than a head of state (maybe not – even they have a code of honor). The real reason for the surge: the Chinese-built deep water port in Gwadar Pakistan, which will guarantee China a virtual monopoly on Iranian oil and natural gas. I blog about this at http://stuartbramhall.aegauthorblogs.com/2010/09/26/iran-china-and-the-gwadar-port/