The context that these discussions often lack is that there are situations where it is considered acceptable for law enforcement to kill a suspect. An armed hostage taker being taken out by a sniper, for example. What is the rule that says that could be OK, but killing Anwar Awl Alaki is not?
Superficially, the rule seems like it would be based on whether capturing / arresting the person is not feasible, but doing nothing has a high probability of resulting in that person being involved in a violent crime (killing of hostages, participating in a terrorist act). Unfortunately, deciding if that is true for a given situation is of course a judgment call. But to simplify it down to "the government shouldn't kill people without a trial" overlooks some things that need to be considered. Could he have been feasibly arrested? What would have been the consequences of doing nothing?
We're not discussing the actual rules yet; the ACLU is asking to see the memo where the argument was supposedly written.
If and when the memo is produced, we can discuss its content; until it is, we should simply ask for it.
The whole concept of "secret legal memos" is the most preposterous thing I can think of. Secret orders may be a necessary evil; but secret legal justifications? What could that even mean??
> Secret orders may be a necessary evil; but secret legal justifications? What could that even mean??
The argument is that by disclosing the legal justification you give information to the targets. For example, if the argument for allowing a drone killing required an explicit threat to commit a violent crime by the target, targets could know what to keep their mouths shut about in order to avoid qualifying. It's a weak argument. But hey, maybe they can keep that argument secret too and then no one will be able to challenge it.
That argument is beyond weak. It sounds to me like it's saying "don't tell someone what the law is so that they'll be more likely to break that law, allowing you to kill them."
If there's a law that's punishable by death, it better be publicly known.
That argument sounds rather dark, as the same thing which illuminates the criminals -- guess what -- also illuminates the people. And journalists, lawyers, and associations that digest information for the people.
So now the overwhelming majority of the world goes dark on the law because a minority of uniquely dangerous criminals are lawyer-like Westboro Baptists with bombs.
If terrorists wish to confine their behaviors to the technicalities of western law because they would rather get arrested than shot, that is actually a highly desirable outcome. We should seek to capture all criminals alive and decently, and gather what data they have to attack other networked crime. Seriously, law-conscious Westboro Baptist terrorists would be a positive development.
This is no different from a criminal learning about the circumstances in which a cop might shoot them, and thus opting to drop their gun in certain situations. The criminal is being more legally conscious as part of their strategy.
While wrongdoers who play legal strategy can be a frustrating nuisance, but the alternative is secret legal memos, which I find more frightening.
Perhaps the legal justification needs to be abstracted from specific cases. Only if a specific case fulfills the justification can that justification be used in secret prior to full execution of that move which then requires full disclosure in post mortem of the event. A non-indefinite yet reasonable time limit should be another requirement that forces either rescinding the justification and/or requiring full disclosure.
This way a justification can be made without details being made public that would alert a sensitive target. It is also necessary to make sure that a potential authorized kill could not be held open indefinitely and the details released publicly in a timely manner.
There's an very important distinction between killing someone to prevent imminent bodily harm and putting someone on a kill list and sending the drone out to get them. It's the distinctly non-imminent premeditation that makes the difference.
There's an equally important one between executing someone in your custody and assassinating someone high up the chain of command in a paramilitary force in hostile territory.
His citizenship is neither here not there for me. If it's acceptable to target foreign al-Qaeda leaders in overseas theaters (which I believe it is, in many cases), then it's equally acceptable to do the same to an American who chooses to take up such a position.
Yes, that's a great point. But the nuances of that distinction are not covered well in the argument of this article. Which was kinda my point, that boiling this down to "the government shouldn't kill people without a trial" misses a lot of nuances that need to be taken into account.
In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
It's frustrating that, after reading all the other comments here and at the NY Times website, it seems like at least half of the people disagreeing with this article are doing so because they didn't read that passage.
I read it, and read that passage. And I don't believe those two sentences adequately cover the issue.
Perhaps this discussion is tainted by the submission title: "Show us the legal case for executing a United States citizen without a trial." The hostage taker hypothetical is an example that goes against that. That person would be a citizen, not in a battlefield, guaranteed the right to a trial, executed by the government, without a trial. The article does not do a good job of distinguishing that example from Awl Alaki. Meaning I think the central argument isn't all that good, and needs to be more specific / nuanced.
The quoted passage is inaccurate. Citizens are guaranteed due process, on or off the battlefield. In situations involving the deprivation of life, that almost always means a trial. But a trial is not an inviolate requirement. What level of process "is due" is a context-sensitive question.
The loophole in the 5th amendment to the U.S. Constitution is worse than that. It is wide enough to fly an entire fleet of drones through, in formation.
Firstly, there is no mention of citizenship. Secondly, the loophole covers any land force, sea force, or militia, and the service can be in any time of war (not necessarily currently engaged in battle) or any time of public danger. There is no mention of loyalty to the U.S. as enemy or ally.
Obviously, the intent of the loophole was to address the question "How can we possibly fight a war if 23 people have to hear evidence before every musket ball flies?" But thanks to poor bounds checking, the protection against arbitrary extrajudicial executions is severely weakened.
By a malicious reading of the amendment, I could argue that, by the tenets of Islam, every Muslim is a member of the militia, and that every member is called upon to wage war upon the unfaithful, heretics, and apostates. That is, they would all be "Militia, when in actual service in time of War or public danger." They don't even need to be at war against the U.S. The loophole does not specify.
It would seem that the source code for U.S. Government should be updated, and a patch released.
Unless you can find something which revokes a statement in the Treaty of Tripoli - and given 200+ years it might well have changed - you can't apply your malicious reading because the US has said it does not have hatred or ill-will regarding the tenets of Islam.
Specifically, the US Senate unanimously wrote that the US "has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen" (that being the older term for Muslims).
That nitpick aside, your statement is still true - the loophole would be to declare that, say, the tenants of the Wahhabi branch, or the Ahmadiyya branch, of Islam are not part of the true Muslim faith as meant in the Treaty of Tripoli.
There is no requirement that the U.S. be a party to the war, or that the targeted individual be enemy or ally. All that is required is that they be a potential combatant in any war or emergency.
The U.S. could target a South Korean soldier at a defense conference in the U.S. South Korea is still at war with North Korea, so that's a soldier, on the job, during a war. All the requirements are met. It does not matter one little bit whether the soldier is actually a danger to the U.S. or anyone associated with the U.S. It might cause a diplomatic ruckus, but the U.S. is allowed to do it by the 5th amendment.
I gave no such example. The person targeted under the loophole does not have to be an enemy.
The requirement is that they be in military or militia service during a war or public crisis. Any war. Any crisis. If you are shooting Martian invaders with a slingshot, you fall into the loophole. If you are an Indonesian soldier delivering drinking water to tsunami victims in Indonesia, you fall into the loophole. Get it?
I understand your distinction, and I stand corrected in my use of the term "enemy" when it doesn't apply, but my point still stands. There is a minor sliver of an exception to your loophole, because the US has declared that some things are not of themselves causes for "enmity", one of which is adherence to the Muslim faith.
If you say that being in the militia is a requirement of Islam (and a quick search of a Koran does not find that to be true), then it was equally true when the US signed that statement; and I have no doubt that some Muslim somewhere was involved in a public crisis even at the time it was being signed in the Senate.
But change one single iota of your premise away from specific treaty terms, or clarify that the US has the ability to declare someone to not actually be a Muslim, then you're golden.
You also need to be careful to not trounce over other treaties, like the UN Charter. That's not hard, if the last 50 years of US military interventions is any indication, but it's not so easy as only using the language of the loophole.
You're arguing about this as though the people exploiting loopholes in the law to kill people by executive order without so much as a single judicial hearing are going to honor treaties as well. Here's a hint for you. Research all the treaties the U.S. made with the native Indian tribes.
You are completely missing the point. This doesn't have anything to do with Muslims or Islam. It has everything to do with some psychos in the U.S. government ruining the rule of law for everybody in the entire world, because it has some tiny benefit just for them in the short term.
The 5th amendment basically says that the normal rules do not apply in a war or public safety threat. Therefore, if you, as an agent of the government, wish to operate outside the rules, you just create a war or public safety threat. That's what we call a perverse incentive.
Yeah, but the minimum 34 maintainers (2/3s of the states) have been arguing about the colour of the bike shed since the time of mainstream horse drawn carriages. Little known fact: the most recent pull request accepted into the Repo was submitted in Sept 1789.
"Battlefield" is a rather vague concept nowdays. What is the battlefield for a terrorist? Is a terrorist driving to deliver a bomb on a battlefield? What about one dialing a cellphone to explode the bomb he placed in a restaurant? What about one organizing this and recruiting people to commit such acts - is he on the battlefield or not? What if you can only locate this terrorist while he's driving to a meeting with his accomplices, but once he's done the only way you see him is by the next explosion on a crowded market? Is such person on a battlefield or not, and if so, when exactly he is on and off the battlefield?
Can you target an enemy general who spent last 30 years never holding a weapon in combat but planning and executing hundreds of military operations?
I could be wrong but I'd tend to believe it is because they are a clear threat and not because one has poor choice in friends or makes suspicious trips to unusual destinations.
"The National Security Agency is using complex analysis of electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes – an unreliable tactic that results in the deaths of innocent or unidentified people."
Its the same issue as the 'no-fly' list, you don't know if you are on it, so you can't provide a defense for yourself. There is no way to challenge you name on the list (short of years of trials). The recent case of the woman proved that they can mess these things up and get them wrong, so imagine them getting it wrong due to a similar name or misunderstanding and you end up on a kill list. So the worry is that a kill list becomes like a no fly list, you don't know you're on it until you hear a drone's missile coming at you.
> I could be wrong but I'd tend to believe it is because they are a clear threat and not because one has poor choice in friends or makes suspicious trips to unusual destinations.
I'd love to be able to trust the governments ability to decide who and what is a 'clear threat', it'd make a lot of things a lot easier. But unfortunately history - including fairly recent US history - is chuck full of evidence to the contrary.
Not to mention the difference between "clear threat to the country" and "clear threat to the government".
To the extent that there is a difference, I'm much more concerned about the former, but worry that the government may (naturally) be more concerned about the latter.
A recent Radiolab episode, "60 Words", investigates exactly this question, among other things. There is a kill list, and decisions about who is or is not on that list are made by non-elected officials. Worse still, the Congressional oversight committee whose job is ostensibly to oversee this sort of thing apparently did not even know about the existence of the list until 2013, at which point the list had probably existed for around a dozen years.
One question: why do we have a judicial system and public laws and all that at all? Could the same kind of people that can be relied upon to only put people on those kill lists that are a clear threat not also take care of determining all other punishments and stuff? I fail to see what all of that complexity is needed for in other cases when it's apparently unnecessary for putting people on kill lists!?
Well, in the case we're discussing, saying mean things about America and Obama on YouTube was the guys major claim to fame. There may have been credible intelligence that he was going to start putting al-Qaeda associated .gifs on Tumblr but of course something that sensitive is still Top Secret.
This is important: I don't even think that the administration ever claimed that that Al-Awlaki has had any known direct connection to a terrorist attack. He was targeted because he publicly advocated and supported them. His speech was enough for a death sentence for him and his 16 year old son, two Americans.
And the government doesn't feel like it's obligated to make a public case for what they've done.
How would knowing that the rule is "We kill those who are a clear threat to others" help the enemy?
I am pretty sure that they are already operating under the assumption that, because they want to kill others, America wants to kill them. If that is indeed our legal justification for killing them, publicizing it would not modify their behaviour in any way.
This isn't about getting the list of people targeted for killing. This is about getting the legal justification for the killings at all. If the justification is as you suspect it is, then there is no value in hiding it. That they are fiercely protecting the justification itself strongly suggests that you are wrong.
I am pretty sure everyone is aware of that particular rule.
But the devil is in the details. How does the US define 'clear threat', exactly, I think would be useful for an enemy to know and possibly exploitable.
And I don't think the US is hiding the overall justification which is "These are people who wish to use violence to act against the United States and its citizens to push their own political agenda. In short; terrorists."
I mean, these are not people who are running for Mayor in their particular part of the world and we don't like their policy decisions. They are doing things like running training camps where they teach others how to make IEDs.
> "But the devil is in the details. How does the US define 'clear threat', exactly, I think would be useful for an enemy to know and possibly exploitable."
Rest assured that anyone who could be considered a terrorist knows that, if they surface on the US's radar, they will be targeted. They take it for granted that they are targeted, because that is the safe assumption to make.
> "And I don't think the US is hiding the overall justification which is..."
I am not interested in the "PR justification", which is indeed "Turrusts!" I am interested in the legal justification. The only thing that they want us to know of that is that it is secret.
If it were nothing out of the ordinary, it would not be so secret.
(Also, normally I try to avoid doing this, but since you are being so persistent in using strong wording in your comments, I feel that I don't have any choice: These are not people running training camps or making IEDs; these are people accused of doing those things. The difference is important, because it is the reason we are having this discussion. It is particularly important because it is suspected that their legal justification extends beyond people who have actually allegedly done anything, and in fact also covers "people who have communicated with those who have allegedly done things" or "any 'military-aged' male in the family of anyone who has allegedly done things")
The legal justification is that we are at war and these people have been deemed combatants in that war.
If these people are not terrorists, what would the US have to gain by killing them?
I am all for oversight and checks and balances. We need to be sure that we are killing actual threats. But I also understand that, as a practical consideration, it might be counterproductive to make the oversight public.
We don't have the luxury of doing full investigations and putting people on trial. It sounds nice, but it is impossible.
For the record: I think it is unfair that you charge me with "Using strong language" and in the same breath deride my position as merely parroting PR "Turrist" propaganda. Cheap shot.
If all those jews were not terrorists, what did Germany have to gain by killing them?
Not that the question is bad, it's just that it's not rhetorical at all, you might want to try to actually answer it. And while you are at it, you might also want to read up on how most of the things that were done to jews (and some other minorities) in the third reich were also legal, at least according to german law at the time.
(edit: and mind you, they also had ways to justify those laws, it's not like they just made the "be evil law", of course it was all about protecting the home country or race or whatever, if you wait for an abuser of power to declare themselves an abuser, you'll generally wait until after all the bad stuff has happened ...)
The legal justification is that we are at war and these people have been deemed combatants in that war.
Who exactly are we at "war" with? On what Constitutional basis was this "war" declared? Under what conditions will hostilities cease? On the enemy's side, who has the authority to sue for peace or sign surrender documents? What laws of war under the UN, Geneva Convention, and/or various treaties apply to this one?
You don't get to do anything you want, and kill anyone you want, just by declaring a "war" on an abstract noun.
> Please show me where the U.S. has officially declared war on these countries it continues to blow up civilians in e.g. Yemen.
The US declared an open-ended war against those people and organizations that the President determines were involved in the 9/11 attacks, and al-Qaeda is one of those organizations. While one might argue (as many have) that the an open-ended declaration of war was a bad idea, or (as others have) that "al-Qaeda", given its nature, is more of an ideological alignment than an actual organization, the power to declare war has never been Constitutionally limited to declarations with nation-states as the target of the war declared.
> There was no declaration of war, there was an authorization for the use of military force. Two very different things.
No, they aren't different Constitutionally at all. The AUMF is an exercise of the Constitutional power to declare war, which does not require any particular language to be used in exercising it, just as the Constitutional power to levy a tax depends only on whether the effect is a tax, not whether the Congressional action imposing the liability calls it a tax.
(It's possible that statutory provisions passed by Congress under its other powers may be conditioned on the specific language in a declaration, such that there may be different effects of something like the 9/11 or Iraq AUMF and something that explicitly uses language like "declares war", but that's a distinction caused by the exercise of other Congressional powers, not a Constitutional distinction that makes the former something other than an declaration of war from a Constitutional perspective.)
How exactly do you know that the AUMF-2001 invoked Congress' power to declare war rather than Congress' power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."?
> How exactly do you know that the AUMF-2001 invoked Congress' power to declare war
Because its the only Constitutional power of Congress which could support it.
> rather than Congress' power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."?
The necessary and proper clause isn't an independent alternative to other Constitutional powers, there still has to be a base Constitutional power to which the function is necessary and proper.
The base power needn't be a Congressional power given the section I highlighted. It could be an Article II power, such as the CinC power.
You've also overlooked the possibility that the AUMF is simply unconstitutional.
In any event, to end this sub thread, at least for my part, whether we are at war or not still doesn't answer the question because declaring war is not a carte blanche to ignore the rest of the constitution (see Hamdi v Rumsfeld). It in no way comports with war traditionally understood to assassinate personel vaguely associated with the enemy involved in the production of propaganda thousands of miles from any active battlefield. Nor is such a killing 'necessary and appropriate' in the words of the AUMF.
> The base power needn't be a Congressional power given the section I highlighted.
That doesn't change the answer. There's no other Constitutional power to which there is even a colorable argument that the AUMF is "necessary and proper" such that it would be supported independently of Congress power to declare war.
> It could be an Article II power, such as the CinC power.
It's doubtful that any such power exists -- the designation of the President as Commander-in-Chief of the military in Article II is a limitation on Congress' Article I power to regulate the military (specifically, it prevents it from dividing the roles that the founders saw as having an executive character by creating a separate C-in-C of the military, which its Article I powers would otherwise permit). But its not a power of government -- the designation of the President as CinC doesn't give the government any power that doesn't come from some other provision of the Constitution, it simply limits the manner in which other Constitutional powers may be exercised (it distributes some powers to the President to the extent that they already exist within the federal government, but for them to exist within the federal government, they must be grounded elsewhere in the Constitution.)
> In any event, to end this sub thread, at least for my part, whether we are at war or not still doesn't answer the question because declaring war is not a carte blanche to ignore the rest of the constitution
The answer was offered to the question of when did we declare war on the targets of these actions, and was not intended to say anything more about the Constitutionality -- and, even more so, appropriateness even if Constitutional -- of the actions, which is, I think, a much harder question that can't be answered without a thorough application of principles to the changing factual circumstances of technological means and realities of modern warfare.
You're delusional. There is plenty of evidence even operators of drones don't always have evidence that the people they're killing are "terrorists", they just "feel" it.
Without disclosing the rules, it opens us to moral hazard. There is no incentive to feel accountable, and as we've learned lately, the government does not do well without accountability.
Please tell me the US government had the foresight to avoid choosing---as the name of a core algorithm employed by its covert services---a name shared by the fictional criminal organization for world domination in the Marvel Comics universe, which is itself opposed by that fiction's analog to America's covert services.
Someone in the chain of command is either deeply ignorant of Marvel Comics (completely understandable) or deeply, deeply cynical about the state of the world (completely concerning).
If the name was chosen deliberately, and not randomly by a computer, then it was probably chosen with the mythical beast in mind, not the comics. Hydras were snakes with many heads, and the problem with decentralized terrorist organizations has often been compared to the problem of killing a hydra; every time you cut off a head there seems to be another.
I'm not sure if there is an algorithm named Hydra; I guess GP is misremembering "Captain America: The Winter Soldier" a little bit (the right names would be Project Insight and/or Zola's Algorithm).
You are correct, in Marvel universe Hydra is the crypto-nazi org, not the algorithm. The algorithm was developed by a nazi scientist Zola, and Project Insight is the tool of its execution, namely flying carriers with tons of guns (it's pretty hard to imagine more vulnerable technology for world domination but whatever, they crash spectacularly and that's pretty much the point :)
Does it matter how they got on a kill list or what the criteria is (in determining whether there's a difference between these two scenarios. Yes, it matters overall)? You're comparing killing an armed hostage taker and saving a person whose life is in imminent danger to bombing someone halfway across the world when we have no idea what they're doing or what they will be doing; all we know is what we think they have done and what we think they will do.
If there's a hostage taker pointing a gun at someone's face, I can see what we're trying to do: step in at the last minute and prevent someone who is already visibly committing a crime (brandishing a weapon, threat of lethal force) from killing a person. Some unarmed guy outdoors, though? From a mile away? Because a committee put him on a list? What was he about to do that we stopped?
The concern being that we don't know is what makes this matter such a grave concern. Something of this nature, if decided as legal, needs to be enshrined in law so there can be no question of its use, lest we find ourselves facing the death penalty for traffic tickets.
This is a guy who was actively involved in plots that did cause bodily harm, and continued to say he had no interest in being captured and would actively fight with violence any attempts to do so. If we have a case for using lethal force at all, I'd say this would be an appropriate instance.
Yes, and when we find out someone has murdered someone we send the police to apprehend them. Sometimes the interaction between the police and the suspect leads to the suspect being shot and an investigation takes place as to whether that was warranted.
I see no way in which the drones sent could be reasonably explained as attempting to apprehend or arrest the subject.
Has proof of that he was involved in any plots been publicly presented anywhere? Based on the public record it looks like he was killed for exercising his First Amendment rights, albiet in a repugnant fashion.
This would all be a moot point if there had been a trial held (even in absentia).
These guys are destroying the best parts of America because they're lazy, they're incompetent and/or they don't respect the Rule of Law. Any of these three reasons is sufficient not to allow anyone involved in these criminal acts to prosper, flourish, or succeed in any meaningful way in our country.
Then again, you could just go to YouTube and watch any of the many video lectures in which al-Awlaki lays out his ideas about jihad and so forth. Saying you only know what the government tells you about him just demonstrates a lack of interest in doing any research of your own.
Fair enough, I haven't done that. Still, the prosecution of capital crimes, even self-confessed ones, involves well-defined legal processes. Those processes don't, and shouldn't, include assassination in cold blood.
I don't think a trial is the be-all and end-all of due process where military conflict is concerned, but I see where you're coming from. We're unlikely to agree about this as I have a considerably more hawkish view on foreign policy matters than you do, I think.
True. What I keep coming back to is the staggering amount of blood and treasure we could have saved by treating 9/11 as a criminal act by a few deranged cultists, which is what it was, instead of a traditional casus belli. Our moral authority as a peace-loving nation would also be intact.
The "hostage taker" analogy is a terrible one. There is no situation in law enforcement where police are allowed to kill a suspect immediately on sight, regardless of circumstance. When Obama added Anwar al-Awlaki to his personal "kill list" (a decision he said was "an easy one"), it became open season on al-Awlaki.
For an example of why officers can't just shoot suspects on sight: in the Dorner manhunt, LAPD shot at a truck just because they thought it fit the description of Dorner's, and ended up shooting innocent people instead.
Which means that police actually does shoot on sight, despite whatever instructions say. And in most cases, no attempted murder charges follow if they shoot the innocent.
I really like this analogy, and I'm going to steal it. It really drives the point home.
I do have to be a pedant though and point out that "fatwa" just means "legal opinion" - in common parlance, we use it to mean "death sentence" because we think of people like Salman Rushdie (whom Khomeini sentenced to death under a fatwa in 1989).
If anything, this makes it worse - at least Khomeini had to provide some legal justification for his decision[0], whereas Obama has refused to do even that.
[0] A legal justification under Islamic law, which many would agree is itself arbitrary, but that's still marginally better than "trust me, it's legal, but I'm not going to tell you why".
I was aware of that, Shia canon law is a pretty fascinating system. If you can figure out a way to keep the pithy nature of the comparison while improving the accuracy, I'm all ears.
Eschewing the rather more obvious argument that the US military's policy of unannounced drone strikes in ostensibly neutral countries could prove counter-productive, we've got this rather absurd line of argument that someone who has to all intents and purposes publicly declared war on the US, is well beyond the reach of domestic law enforcement and actively encouraging militant attacks on the US military deserves due process and a civilian trial because he was born in America.
But he's happy to endorse his fathers' proposal to reward rather less surgical strikes by dubious third party bounty hunters without any more semblance of due process, provided the alleged terrorists aren't American.
It's not meant so much as an analogy, but an example that shows the rule of "the government shouldn't kill people without a trial" not really being a rule.
The key point is the trial. You can't hold a trial in a hostage situation. They could have held a trial for Anwar al-awlaki. Once decided by trial that he committed treason, military action could be justified.
The problem is how that trial would be conducted in absentia would have been a farce. The government would also be concerned about its classified evidence. Worse, if the trial led to acquittal, it would have legitimized his cause.
An acquittal is a scary prospect of bringing out other copycats. But more scary is executing someone without trial that would have been acquitted. But we'll never know. They should have held a trial.
Anwar al-Awlaki could have had a trial anytime he wanted. He simply had to go to the American Embassy and turn himself in. As things stood when he was killed, it was impossible to bring him back for a trial without an unacceptably high risks to the people in the armed forces who would have had to capture him. If you wanted some insight on the complexities of operating within Yemen, I suggest The Black Banners by Ali Soufan. The subject of the book is the events leading up to 9/11 and Soufan was one of the FBI's top agents and strong critic enhanced interrogation. He invested the USS Cole bombing in Yemen and he covers the difficulty of working in country quite well.
They would somehow have to serve papers telling him about the trial, and offer him safe passage to the trial. Then give him a reasonable deadline to show up. If he doesn't show, hand down a default judgement and proceed to sentencing...
Then you postpone the trial until they can be found. Trials in absentia are not allowed in the US and most of Europe. In countries where they are practiced, they're a source of international criticism.
For a comparison: In Germany a sniper or a law enforcement officer killing a suspect is not necessarily specifically allowed in the law (3 out of 16 states don't have any special regulation concerning this). The legal theory to still allow shooting a hostage taker is called "(Aussergesetzlicher) Notstand", the situation where to protect one person from harm you need to inflict harm to another person. This does not make the action itself legal, but the person goes unpunished. It's actually a legal concept that I prefer over permitting killings by law enforcement.
IANAL, but I don't think there is any particular law allowing the police to use deadly force -- they just have the same self-defense and defense-of-others exception to murder laws that everyone else has. Self defense doesn't apply to threats like Anwar al-Awlaki that aren't immediate, even if they're extreme and inevitable--I can't shoot a guy for preparing to blow up a bomb an hour from now.
It's not the government killing people, it's an individual cop, and if they do so unlawfully the criminal exposure is personal. (In practice, prosecutors are reluctant to actually go after cops in anything but an extreme case, but this isn't unique to police killings)
I don't like this line of thinking, because it blurs the very real distinction between military actions on foreign soil and police actions on American soil. Those two things are, in history and practice, utterly different.
Looking at the footage of cops in humvees patrolling the streets after the Boston marathon, life in DC eight years ago, and even as far back as actions in the nineties, I'm not sure that the distinction is as clearly delineated as any of us would prefer.
I find those activities troubling and I don't think it serves the purpose of ameliorating them to pull international terrorists under the umbrella of police and criminal enforcement. The protections available to ordinary criminal defendants has already become quite eroded and distorted by the necessity of accommodating enforcement against organized crime and drug kingpins within the same framework.
I think you have to be a little careful here, because while the distinction between military action and police action is a good one, the classification of valid responses to terrorism doesn't necessarily follow. Some effective responses to terrorism have been, essentially, police work. And, obviously, some very ineffective responsive responses to terrorism have been military.
What is in question here is not whether the state can in some circumstances kill, and if this was one of those circumstances (that question comes later).
The preliminary question is whether the state is allowed to assassinate citizens without trial outside wartime, and refuse to reveal why. That's the position of the Obama administration - you have no right to question their assassinations, you must simply accept that the government knows who, when, and how to kill. That's the question Rand Paul is asking in this essay (and a few others have asked before him), that's why he says 'show us the legal case', and talks about the rights of all American citizens to a trial by jury rather than 'this action was wrong'.
If you accept that the state has the power to kill without justification or investigation (before or after the fact), a lot of the other rights you are supposed to have as a citizen become meaningless. The rule of law (especially restricting the state) is vital to protect citizens without the resources to fight the state. That's why this first question is so important, whatever you think of Anwar Awl Alaki. The rule of law restricts the activities of the state and makes it less powerful and effective, that is as it should be, so you shouldn't argue that this makes our government less able to kill people quickly - that's the point.
Moving on to the question you address of whether it was actually legal or justified - typically killings outside the judicial process and outside of wartime are viewed as assassinations and very difficult to justify; I'm not aware of evidence that Anwar Awl Alaki was planning a particular attack or involved in one, and the killing of his son a few weeks later along with some other teenage friends is based on even more tenuous evidence and justification (if any). We didn't mean to kill him is not a reasonable excuse for a government agency outside of war, and to kill someone like a hostage taker a government agency would have to submit to an investigation afterward. Killing without trial or investigation means your government can assassinate citizens at will.
> What would have been the consequences of doing nothing?
I did not expect to see such arguments on HN. Its more commonly seen in bad B plots of TV shows where the malicious doctor explain that he is saving people by releasing a deadly plague, and the deadly consequences of doing nothing would kill many many more.
An sniper may take out an armed hostage taker because the hostage is in imminent danger, and the sniper reasonably believes that deadly force is the only possible way to protect someones life. Can you honestly say that about Anwar Awl Alaki?
And that's not even the worst case - at least here one of them was a dangerous criminal. But there are many cases of police fatally shooting mentally ill, disturbed people or just somebody that looked dangerous to the police officer at the wrong place in the wrong time.
So there's no question there is an ample precedent of killing US citizens without trial by US law enforcement, and even in situations where they reasonable could be subdued. The question can be only - can US do to the terrorists the same it does to a robber or a mentally disturbed person?
Well, from a philosophical perspective: a sniper acting to save a life is acting in an emergency, whereas (presumably) an assassination ordered by the President (welcome to 2014, kid, please check your optimism and youthful enthusiasm at the desk) isn't.
"In an emergency situation, men’s primary goal is to combat the disaster, escape the danger and restore normal conditions (to reach dry land, to put out the fire, etc.)."
My take on that: under metaphysically normal circumstances, a court process is entirely appropriate. If you're in the position of the sniper, though (armed, and in a position to take a shot to save an innocent life) it's entirely rational to take the shot, and hope like hell that you were right.
Could we not have captured Anwar Awl Alaki in some form? Could we not have had the Yemen government issue an arrest warrant and have him arrested? Could we not have tried him in absentia? Unfortunately I don't know the answer to all of these and I'm not sure it's possible to know the answer.
The cops are fundamentally the same asyou as a citizen. Deadly force is justified in response to a threat to human life either yours or another. The difference is that police have specific training and rules of engagement, and they insert themselves into situations.
I think the fundamental problem is the definition of imminent threat to human life and the fog of war. Unlike a situation where a person point a gun at a policeman, imminent threat in a geopolitical stance is hard to assess.
Issac Asimov explored many of these issues in the Robot novels. How do you judge whether an individual is an imminent threat to your country? Or humanity? The answers aren't necessarily black and white.
It's impossible to have a rational argument about this because the legal justification for executing a US citizen outside of a battle zone has not been published.
"Due process" is not legal jargon. The word "due" means aporopriate or warranted by the circumstances. What "process is due" when the person hides out in Yemen for a decade evading attempts to give him more substantial process? Maybe a trial is still required, but its not a slam dunk argument.
Superficially, the rule seems like it would be based on whether capturing / arresting the person is not feasible, but doing nothing has a high probability of resulting in that person being involved in a violent crime (killing of hostages, participating in a terrorist act). Unfortunately, deciding if that is true for a given situation is of course a judgment call. But to simplify it down to "the government shouldn't kill people without a trial" overlooks some things that need to be considered. Could he have been feasibly arrested? What would have been the consequences of doing nothing?