In the movie Witness, there is a scene where a little Amish boy, who has witnessed a murder, takes the gun of the detective who is there to protect him from a chest of drawers. He is caught by his grandfather who sits him down for a talk. The grandfather asks if the boy would use this gun to kill. The boy says that he would only kill a bad man. The grandfather asks “How will you know who is the bad man?” This is the central point of our system of justice, we don’t just assume that someone is a bad man before punishing them, we have an elaborate process designed to require proof of actions before we punish.
Unfortunately our trauma with terrorism has eroded this system. Today, as you read this, there is a list of people around the world who are targeted for death. They are suspected of being involved with terror plots, and some of them are your fellow citizens. If they are found anywhere in the world by our forces they will be killed. Not captured and brought to trial, not attempted to be captured, but killed out right.
The Center for Constitutional Rights and the American Civil Liberties Union have filed suit challenging the legality of this policy. There is an Islamic cleric named Anwar Al-Aulaqi who has been implicated in both the Fort Hood shootings and the Fruit of the Boom bomber plots. He has made many anti-American statements including the active encouragement of terrorism.
Mr. Al-Aulaqi is believed to be in hiding in Yemen. He is a citizen of the United States and he has been on so-called “kill list” for months. The issue here is can the United States use lethal force in a country which is not at war and is far from any of the existing battlefields? There is no doubt that under some circumstances deadly force can be used, but they are mostly involving situations where the person being targeted is fighting back, as in a shoot out during a capture attempt.
The other acceptable time that deadly force can be used away from the battlefield is preventing an imminent attack or loss of life. Say you knew that someone was taking a backpack bomb to a crowded market. U.S. and International law allows for you to kill that person if there is no other way to stop them. Even when the threat is immediate, this is considered to be the last resort.
A big issue in this case is the way in which names are added to list, as well as the amount of time which names stay on the list. As you might expect the nature of the process by which names are added is secret. The CIA is in charge of this list and the operations which would result in someone on it being killed. It is very troubling that this process has no oversight. It resides completely in the perview of the Executive Branch. Up to this point they have basically said “Trust us” in terms of making sure that only bad people wind up on this list.
Sadly, when we are talking about an American citizen (even one accused of the heinous crime of terrorism) trust us can never be enough. I tend to think that Mr. Al-Aulqi is piece of human garbage. I won’t shed a single tear when he is gone from this world. That said, I’m not willing to grant the Executive Branch the unlimited power to declare citizens enemies and then send our covert operations teams out to kill them. You might remember a recent Administration that took the powers they had and extended them up to and including declaring citizens enemy combatants and then holding them (and torturing them) for years without access to lawyers or even being charged with a crime. This would be just and extension of that and very, very dangerous one at that.
The law suit that the CCR and the ACLU have filed challenges the power of the government unilaterally and secretly add a person to a “death list”. Vince Warren of the CCR sums it up pretty well:
“The United States cannot simply execute people, including its own citizens, anywhere in the world based on its own say-so,” said Vince Warren, Executive Director of CCR. “The law prohibits the government from killing without trial or conviction other than in the face of an imminent threat that leaves no time for deliberation or due process. That the government adds people to kill lists after a bureaucratic process and leaves them on the lists for months at a time flies in the face of the Constitution and international law.”
The Founders were clear; they did not want the enormous force of the State to be wielded against the individual without due process of the law. This was for the protection of the individual who is at a huge disadvantage in power. It also helps to prevent mistakes. Right now the CIA and people in the Executive Branch make the call based on intelligence data. As we all know too well, intelligence data can be wrong or be spun in politically expedient ways. This is the same kind of process which had us detaining people in the Guantanamo Bay prison as suspected terrorists. We have since released many of them, after finding that they were not actually terrorists of any kind. When we are talking about execution we should have a process that is less likely to be in error, there is no giving back a life once it is taken.
If our intent to kill those who would plan, advocate and help those who would commit terrorism against our nation can not survive the process of law, then it is pretty clear that we should not be killing those people. The idea of get them before they get us is one of preemptive vengeance. That is not the American way; we don’t deal in vengeance we deal in the law, and the ideal of Justice.
Yes there are people who will kill Americans without a second thought. We don’t owe them anything. We do, however, owe ourselves the standards that have protected and guided us as a nation for 234 years. The standards of due process and equal justice before the law, in open courts. These standards allow the accused to confront witnesses against and evidence against them with their own. These standards and the ideals behind them are torn asunder when the Executive Branch, not the Judicial, decides that a citizen is to be killed, without an immanent threat and without the processes of the law.
It is easy to say we will only kill the bad men. It is much harder to know, with the certainty that is required for execution; just who the bad men really are if we do not follow the process of law.
The floor is yours



17 Comments

Excellent! Thanks. Recc’d.
This is sick and revolting. You appear to have bought the meme:
This is either the infernal hypocrisy and pretense to believe in the rule of law, or a sop to deflect criticism. This statement undermines not your argument for rule of law, but diminishes yourself, with prejudgment.
What happened to innocent until proven, note the word proven, guilty. What has Al-Aulqi done? Not what has he said, what he is accused of doing, but what has he done, with proof?
What the heck are you talking about. I think that Mr. Al Aluaqi is a scum bag for his words and advocating terrorism. Advocating terrorism gets you in my scum bag list every time.
He has done that. What I am not down with is our government being willing to kill him without trial or charge. There is a big difference between being someone I will not miss at all when you’re gone and being an advocate for killing that person.
You might want to read what I wrote a little more closely.
Bill, I still don’t understand why the “terrist” we have in confinement have not had trials. What are they hiding? The few headlines of them being taken for hearings ends up being lost with no follow up.
I think your point about vengeance is of optimal importance: When a trusted Pakistani spying for the US walked into an Afghan CIA base and blew himself up, killing CIA officers, the US Government immediately announced that it would “take vengeance” on those responsible.
What a disgrace to our country that our Government would act out of vengeance, especially in view of the fact that the person on whom they sought revenge was already dead. But that didn’t deter the CIA: They quickly sent a Coward Drone strike to Pakistan, killing people, including children.
There are a couple of issues there. First off if you were tortured no evidence from the torture is going to be able to be presented. There is also the issue of getting a fair trial.
The miltary commissions are not going to be the final step in this no matter what. So there is a lot of jockeying on that.
It is also (I am really sad to say) that there is a lot of cowardice on the part of the administration. They don’t want to be seen as letting terrorists go, but they also don’t want to follow the Bush plan. That and all the other problems means this issue is back burnered.
Torture is really the problem I think. If you have a trial that establishes torture (legally) and throws out evidence, then there is a paper trail that makes it really hard to ignore the state sponsored torture of the Bush administration.
Your basic cluster f**k.
Yeah. Just another example of why you should not go to war casually. Long wars get into this kind of vengeance mind set. Not everyone does it but enough will that it is hard to do the right thing.
Personally I hate our drone warfare. There have always been unintended civilian causalities, but doing from the air not only looks bad it guarantees that our opponents can use it as propaganda.
We have nothing to fear but fear itself.
“A solution to the inner war solves the outer war as well.” From the anatomy of peace.
Bottom line…war results from a disease of perception.
Thanks, Bill. I feel some of the legality issues may have to do with the fact that these wars are not actual wars. Well, not in the historic sense of the word due to the fact that there was no “declaration of war” via congress. How do you feel about that and do you think it may have something to do with the lack of action?
How can we hold prisoners of war when there has been no declaration of war?
The declaration of war issue is one of use. It has become accepted law that Congress does not actually have to declare war.
I am totally opposed to indefinite detention. I don’t see how it can possibly be constitutional given hebeas corpus. Due process requires charging of people held by the goverment. It is part and parcel of why we held these folks at Gitmo and now at Bagram Air Base. So the Bush admin and this Administration can get around that.
I think that eventually it will get to the SCOTUS and it will be struck down but that can take a long time (as it has) given issues of standing and legal maneuvers by the administrations involved.
But the other thing is that we have been very careful not to call them POW’s. That gives them all kinds of status that the Bush admin did not want to deal with.
What this all comes down to is the fall out from a lawless administration. The Bush criminals muddied the legal water to the point we will have to re-litigate and re-legislate most of our war conduct.
“The declaration of war issue is one of use. It has become accepted law that Congress does not actually have to declare war.”
AaaaacccK! Okay, that brings up many other issues for me. War funding acts, temporary funding, hiring contractors, spending BILLIONS, borrowing BILLIONS, with no legal footing.
“But the other thing is that we have been very careful not to call them POW’s. That gives them all kinds of status that the Bush admin did not want to deal with.
What this all comes down to is the fall out from a lawless administration. The Bush criminals muddied the legal water to the point we will have to re-litigate and re-legislate most of our war conduct.”
Thanks again. I have noticed how the mention of POW is always left out of the picture. As to the relitigate and relegislate, well we have seen how our legislaters legisLATE! Unless there is a big monied entity shoving dollars down their pants on the issue you can fagettaboutit.
Advocating terrorism is no crime.
What are his actions? Speech? What compelled him to to speak out? Other actions?
I support the rule of law.
You, apparently from you comments do not.
The kill list is proof positive (if more proof is needed) that the rule of law is no longer in force. The government is privately owned and has absolute impunity. The government can kill anybody or everybody for any or no reason. No new combination of Democrats and Republicans in congress will change that. I would be embarrassed and ashamed to participate in so called elections where the alternatives are Democrats and Republicans.
Horseshit. Did I say that he was a criminal? No I said I thought he was a scum bag.
You need to go read my years long advocacy for rule of law before you toss those accusations around. I’ll stack my advocacy for it against anyone anywhere.
Did these folks learn nothing from the ACORN and Shirley Sherrod incidents? Nothing at all?
After all, video evidence was distorted and faked to successfully misrepresent events and demonize the targets. ACORN was ruined for trying to help people. Ms. Sherrod was damaged by what happened. What if they had been placed on a kill list (and then executed) based upon the presented evidence?
Local gossip is dangerous enough to ruin people regardless of how easily it is refuted. Taking the third-hand word of far away people, many with grudges to settle, as a reason to execute folks is just an excuse to commit murder.
Bill,
Who are the terrorists?
We create new “terrorists” every time we murder innocent civilians. When that happens, their families, friends, and fellow countrymen condemn the United States as the true “terrorists.” Inevitably, some of them swear revenge and join militant groups to kill U.S. soldiers and drive the United States out of their homeland. Many of us would do the same thing, if the situation were reversed.
The United States bears much of the responsibility for creating al Qaeda because of its meddling in the internal affairs of Arab countries in service to its corporate lust to profit from controlling their natural resources, oil and natural gas. The United States also supports and protects Israel and antidemocratic Arab monarchies and governments. Face it: the United States is the heavyweight bully that is justifiably hated and despised by many Arab people, Iranians, and Afghans. As the United States is the number one terrorist organization in the world, it reasonably should expect to reap what it has sown.
Instead of ratcheting up its insane and indefensible war on terror, which it brought down upon its own head, it should apologize, withdraw all of its troops from the region, and clean its own house by aggressively rooting out and prosecuting everyone who willfully and intentionally lied us into war, all of the torturers, including everyone who authorized and ordered it, and everyone who has covered up what was done in our names, including Eric Holder and Barack Obama.
Assassinating al Awlaki or anyone else, according to some twisted notion of preemptive self defense is indefensible because one who provokes a fight cannot claim self defense, much less a right to preemptively assassinate someone in self defense.
And, as you pointed out, the United States has a shamefully high error rate denominating, imprisoning, and torturing innocent people whom it labels as the “worst of the worst” terrorists.
The truth is that the United States intentionally creates people who take up arms against it to avenge the death of innocents, whom it labels as “terrorists,” in order to provide a cover for engaging in never ending war. The objective is world hegemony, a military empire that preserves and protects world wide corporate domination and exploitation of natural resources, including labor. This is the proverbial bottom line that every United States citizen needs to recognize and assume responsibility for changing no matter the risk of harm.
The survival of the planet, not to mention human dignity and decency, may well depend on our success.
Expanding on Bill’s diary statement here…:
…perhaps the following facts will help clarify the reasons for you.
Those who haven’t been closely following the work of (now award-winning) Miami Herald Guantanamo reporter Carol Rosenberg, or Britain’s indispensable Guantanamo writer Andy Worthington, may not realize that:
1. As of August 17, 2010, the Guantanamo Bay Naval Station had 178 foreign citizens detained, in seven different prison camps. As of August 27, 2010, that number had been reduced to 176 detainees.
2. As of July 19, 2010, “a total of 594 Guantanamo prisoners” [only a fraction of whom – less than 37 – were ordered released by federal judges in habeas rulings] “[had] been released” [the vast majority of them by the military acting under unilateral Executive Branch authority, during the Bush and Obama administrations] “(or, in some cases, transferred to the custody of their home governments, or of other governments), and six men [had] died there, five in mysterious circumstances.”
3. Guantanamo’s peak prison population reached 779 “protected” wartime foreign prisoners. To bring that number down to the 176 still detained today, about eight years after most were first seized and sent to Guantanamo from abroad, almost 600 voluntary, unexplained, unilateral detainee releases by the military, at the behest of the Executive Branch (most of them during the Bush administration), quietly took place, after detainees had been held for years. Hundreds of captives were thus released, without explanation, apology or reparations, despite supposedly being held ‘for the duration’ of the armed conflict in which they were and are claimed (without lawful basis, in violation of the due process required by the law of armed conflict and our Constitution) to have been “combatants.” Furthermore, all Guantanamo prisoners – even the small minority of detainees who have finally had a merits hearing on their habeas corpus petitions in federal court and won a release order as unlawfully-detained non-combatants – were and are unilaterally decreed, en masse, by the U.S. President and military (in violation of the Third Geneva Convention, Article 5, and Army Regulation 190-8 implementing same, which requires POW status by default unless and until fairly revoked) to be non-POW participants in an armed conflict with the United States. [All detainees are thus deemed ineligible for POW protections and treatment (treatment which flatly prohibits coercive interrogation), and for court-martial jurisdiction under the UCMJ if accused of violating the law of war, for the duration of hostilities and thus for the duration of their detention in American military/CIA custody.]
4. A total of only 24 (foreign, purportedly non-POW) Guantanamo detainees have been accused and charged under the 2006/2009 Military Commission Act(s) with violating the law of war – in addition to being indefinitely detained as “combatants” in the ongoing armed conflict.
5. A total of only 4 of those 24 (from among those 779) have been charged and convicted by Guantanamo Military Commission – two by plea bargain (one under Bush, one under Obama). (There have been no Commission trials that ended in acquittal.) Two of the four convicted were released to their home countries before President Obama took office. A third is awaiting sentencing, and the fourth was given a life sentence after refusing legal representation during his Commission trial.
6. The two non-plea-bargain Commission convictions are (automatically) under appeal. Oral argument in the two appeals was held in January, 2010, and very-consequential decisions on the arguments made – for and against the Commissions and the war crimes charged – from the newly-minted Court of Military Commission Review (which has almost no case load), are overdue. The appellate briefs in the appeal of Salim Hamdan are available here, and the January oral argument in that appeal may be heard here.
7. Meanwhile, since June, 2008 (thanks to the Supreme Court’s 5-4 Boumediene decision authored by Anthony Kennedy), habeas corpus hearings have been ongoing in the U.S. District Court for the District of Columbia (alone) to consider the petitions filed by remaining Guantanamo inmates (challenging their military detention as unlawful, usually with pro bono assistance from secrecy-gagged American civilian attorneys). Of the 52 habeas corpus cases decided and upheld on appeal by federal judges as of August 17, 2010, the judges ordered the release of 37 detainees, finding them unlawfully detained under the law of war (14 of those 37 remain detained due to unresolved appeals, or D.C. Circuit-protected Executive will), and judges permitted the military to continue detaining, as “more likely than not a part of” Al Qaeda or associated forces when seized, 15 detainees.
On a related note, Scott Horton put this principle…:
…very well the other day, in a post addressing our Central Intelligence Agency’s secret employment of Afghanistan government officials:
[Off-topic (no answer needed or expected, but, for what's it worth, a suggestion): Should or would the Seminal consider revising its software to permit front-paged reader diaries to continue to be recommended by readers, post-frontpaging, as FDL's front-paged reader diaries can be? The current Seminal practice (which I believe also removes Seminal-frontpaged reader diaries from the Latest Diaries list while still visible) seems counterproductive to a wider readership for such diaries, particularly now that more reader diaries seem to be front-paged at Seminal before many people have had a chance to read them (and thus before many readers have had a chance to recommend them - recommendations that give reader diaries longer exposure on FDL's front page sidebar/Seminal's front page list).]