Court orders Obama to release documents related to Awlaki

[K. A. Pital]

Hey idiot, some info for you: combatants are persons who may take a direct part in hostilities, i.e., participate in the use of a weapon or a weapon-system in an indispensable function. Under the Statute of the International Criminal Court, “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes a war crime in non-international armed conflicts. Immunity is only granted from attack to murder, but not generally from arrest or prosecution. Civilians whose activities merely support the adverse party’s war or military effort or otherwise only indirectly participate in hostilities cannot on these grounds alone be considered combatants. Civilians who directly take part in fighting, whether singly or as members of a group, thereby become legitimate military targets but only for such time as they actively participate in combat.

So after this quick legal update, tell me how your government has not commited a war crime under the relevant modern practice?

[Block]

Members of combatant groups are expressly not civilian, and your timeframe is off, while preparing for any sort of military action, they're considered combatants as well. Just because a soldier is in logistics and not in the infantry, that doesn't make him a non-combatant either. It's why it's perfectly legal to use surgical strikes to take out enemy command posts even though they're not actively engaged in shooting someone, and often times not armed. It's also why it's legal to bomb factories making weapons for a war effort.

Edit: And he, and his whole group aren't designated as civilian or lawful combatants anyway. They've been designated unlawful combatants, which is an entirely separate legal grouping with different rules.

[Metahive]

So, he was a soldier now? Of which military? Al-Quaeda's? They're not a military any more than the Bloods and the Crips or even the fucking Hell's Angels. I would really ask people to stop with this bullshit.

[K. A. Pital]

Members of combatant groups are expressly not civilian, and your timeframe is off, while preparing for any sort of military action, they're considered combatants as well. Just because a soldier is in logistics and not in the infantry, that doesn't make him a non-combatant either. It's why it's perfectly legal to use surgical strikes to take out enemy command posts even though they're not actively engaged in shooting someone, and often times not armed. It's also why it's legal to bomb factories making weapons for a war effort.

Edit: And he, and his whole group aren't designated as civilian or lawful combatants anyway. They've been designated unlawful combatants, which is an entirely separate legal grouping with different rules.

No, moron, your criminal junta's Nuremberg-level apologism, which has seen the invention of the hideous term 'unlawful combatant', is full of shit.

To the extent that members of armed opposition groups can be considered civilians (see commentary to Rule 5), this rule appears to create an imbalance between such groups and governmental armed forces. Application of this rule would imply that an attack on members of armed opposition groups is only lawful for "such time as they take a direct part in hostilities" while an attack on members of governmental armed forces would be lawful at any time.

http://www.icrc.org/customary-ihl/eng/d ... er1_rule6v

I dare you motherfucker to say this either is not so or shouldn't be so. Then I will wipe the floor with your 'arguments'.

[Terralthra]

By TheHammer's argument, Clarence Brandenburg should've been targeted by US Government forces in the 60s and could have been detained or killed as an enemy combatant for encouraging KKK members to march on Washington and take "revengeance" on blacks, Jews, and the government which is oppressing the white, Caucasian race.

Instead, the Supreme Court found in Brandenburg v. Ohio, 395 U.S. 444 (1969) that not only was he not an enemy combatant, his speech was protected by the First Amendment. Oops.

[K. A. Pital]

Block and TheMoron don't even understand that people making munitions are still civilians, what else is there to be said? In their sorry world war is killing people indiscriminately, soldier, paramilitary or civilian abetter alike.

[TheHammer]

By TheHammer's argument, Clarence Brandenburg should've been targeted by US Government forces in the 60s and could have been detained or killed as an enemy combatant for encouraging KKK members to march on Washington and take "revengeance" on blacks, Jews, and the government which is oppressing the white, Caucasian race.

Instead, the Supreme Court found in Brandenburg v. Ohio, 395 U.S. 444 (1969) that not only was he not an enemy combatant, his speech was protected by the First Amendment. Oops.

The KKK didn't have an authorization for military force approved by congress. Further, Brandenburg wasn't clearly organizing group for an armed attack as Awlaki has. You're also kidding yourself if you think this is the first time this has been brought up and answered. Given that Awlaki had already called for attacks that had taken place, the notion that his speech was not to incite imminent lawless action is ludicrous.

Block and TheMoron don't even understand that people making munitions are still civilians, what else is there to be said? In their sorry world war is killing people indiscriminately, soldier, paramilitary or civilian abetter alike.

He had previously and was continuing to recruit for and direct attacks. That puts him in a leadership role in the group. He was a combatant not a civilian, and continued attempts to find some sort of technicality not only will fail, but make you look like a fucking idiot to any reasonable person.

[Simon_Jester]

Congress authorized the use of military force against Al Qaeda. As they have the "power to declare war" and in effect declared war against that organization, they are an "enemy" organization. You acknowledge this below, but them seem to want to find some sort of loophole for Awlaki.

Congress authorized the use of force against those persons responsible for 9/11. Now, if you say that this means al Qaeda and that we are therefore "at war" with the private organization al Qaeda and all its members whether they were involved in the 9/11 attacks or not... still fine.

But again, where is the line drawn? What groups can't the US government simply declare war on? Could the US government declare war on, say, the Green Party?

[Not would, could.]

It doesn't alter my definition of war. You don't need borders to fight a war, you just need an enemy who is actively trying to kill you. Awlaki is an admitted member of the organization we are at war with. To not accept that is to be in denial. His numerous youtube videos and writings makes him easy to identify.

I am perfectly aware of this. It falls under the list of arguments I uncharitably sum up as "he is a BADMAN who should die!"

This is not about whether he should be alive or dead. The point is, if we deem it acceptable to have unlimited wars, wars without borders or a realistic exit strategy, wars that can be waged against non-national, non-government groups, wars that can be waged against groups that include American citizens...

...We really need to think very hard about the constitutional limits on our ability to declare war. Again, can the US government declare war on the Green Party, should Congress and the president be inclined to do so?

If you're concerned about others in the future, so be it. I'm not opposed to creation of a system to handle more ambiguous situations. Mistakes will always be made. You can only hope to minimize them. Killing Awlaki wasn't a mistake, which again is why I don't understand the constant attempts to put him on some sort of pedestal for government abuse of power. It actually weakens your position if this is the "best example".

Because the point is not that he is a BADMAN. The point is, if American citizenship no longer matters once the executive branch designates you as a BADMAN, then we've lost a very important civil right without knowing it.

See, you keep coming back to "Al-Awlaki was an ENEMY BADMAN he had no right to anything." I get that, you don't need to repeat it. The point here is that if "ENEMY BADMAN" is a status you can get that takes away your constitutional rights, there needs to be a due-process way to be designated as such. You can't create an extrajudicial method of deliberately, coolly declaring that a citizen's constitutional rights are revoked.

Its not in the power of the judiciary when that citizen is engaged in open warfare against the US. Just because he didn't have a gun in his hand at the time doesn't mean he's no longer an enemy soldier.

There are other instances that are less clear cut. It would be in those situations that you'd need some sort of judicial review.

If the decision to kill him is "hot-blooded," in that he is being shot after fighting in the heat of battle, then it is the province of the military. If the decision is cold-blooded, if someone sitting in an armchair decides to send a robotic killer after him because he poses some indirect threat... then that would normally be the province of the judiciary. They should at least get some input on whether or not an American citizen can be killed, there should be a procedure for checking so that the decision is not made arbitrarily.

[Terralthra]

By TheHammer's argument, Clarence Brandenburg should've been targeted by US Government forces in the 60s and could have been detained or killed as an enemy combatant for encouraging KKK members to march on Washington and take "revengeance" on blacks, Jews, and the government which is oppressing the white, Caucasian race.

Instead, the Supreme Court found in Brandenburg v. Ohio, 395 U.S. 444 (1969) that not only was he not an enemy combatant, his speech was protected by the First Amendment. Oops.

The KKK didn't have an authorization for military force approved by congress. Further, Brandenburg wasn't clearly organizing group for an armed attack as Awlaki has. You're also kidding yourself if you think this is the first time this has been brought up and answered. Given that Awlaki had already called for attacks that had taken place, the notion that his speech was not to incite imminent lawless action is ludicrous.

The AUMF is not against al-Qaeda, it's against "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Al-Qaeda in Yemen had nothing to with the September 11 attacks, and neither did Anwar al-Awlaki. The AUMF does not cover them, nor should it, and it is not a blank check to kill whoever the President wants to kill. And unless the attack occurred immediately after he made a YouTube video, then it didn't incite anything imminently. That's what imminent means.

Again, Brandenburg was the leader and recruiter for an armed group that advocated, and he himself encouraged, violence against the US Government. Anything al-Awlaki deserves, so surely did Brandenburg.

Block and TheMoron don't even understand that people making munitions are still civilians, what else is there to be said? In their sorry world war is killing people indiscriminately, soldier, paramilitary or civilian abetter alike.

He had previously and was continuing to recruit for and direct attacks. That puts him in a leadership role in the group. He was a combatant not a civilian, and continued attempts to find some sort of technicality not only will fail, but make you look like a fucking idiot to any reasonable person.

Recruiting for and encouraging violence against the US is not only not illegal, the Supreme Court has ruled it to be protected speech unless it is both intended to, and in fact, incites imminent lawless action.

[Channel72]

The Brandenburg analogy doesn't quite hold, because a big part of the decision to kill Awlaki likely had to do with the logistical difficulty of apprehending him. Brandenburg wasn't 7,000 miles away... in a lawless region of another country.

[Terralthra]

The Brandenburg analogy doesn't quite hold, because a big part of the decision to kill Awlaki likely had to do with the logistical difficulty of apprehending him. Brandenburg wasn't 7,000 miles away... in a lawless region of another country.

The difficulty of apprehension distinction becomes less important when you remember that the central holding of Brandenburg was that nothing Brandenburg did was illegal. "Hm, we can't apprehend that innocent man. We must kill him instead!" Yeah, no.

[Alyrium Denryle]

Part of a multifaceted response. Numerous people quoted if I feel one or the other is a good jump off point. It may look like goal posts are shifting. They are not. I am working MoronBoy through a particular logic chain by adding complexity in sequence.

I don't disagree with the premise, the problem is we have no such laws to cover a situation like this. No way to "strip" awlaki of his citizenship, nor a way to try him in absentia. It would be negligent of the executive to merely sit on its hands because congress has failed to act. That being said, I still feel like killing Awlaki was legal under existing law, and did not need a judicial review to begin with. I will explain further below.

You are missing the point. The individual in this case is irrelevant. The precedent set is another. Awlaki could have been innocent as the driven snow. He could be guilty as sin. It would not matter. The precedent is that the executive branch is permitted to draw up a death warrant in secret on the basis of secret evidence, against anyone it wants including its own citizens.

That "procedure" exists now. The next person it is used against may be someone completely different from Awlaki.

Obama has said as much in various interviews that he would like the same. But in the interim, since Congress has deemed to not take action, the executive is left in the position of filling in those grey areas of law, such as the "legal review process" they currently utilize.

Does that not strike you as a conflict of interest.

I want to kill someone. It does not matter who. Target X.
So I gather a bunch of people together who are in my direct employ, many of whom I hand-selected, and who ultimately are employed at my whim.
These people get together in secret and determine on the basis of secret evidence whether Target X deserves to be killed.

Under those conditions, the person could be Ghandi, the result will be the same. Once the precedent is set that this is permissible and actionable (as opposed to being a thought exercise, but something I can order other people to go and actually do), it can be used against ANYONE.

It'd be nice if we had a way to deal with this more gracefully.

It probably could be done by statute. Constitutionally, the congress has the power to add to the jurisdiction of the federal courts. Create a statute empowering the executive branch to directly petition the supreme court for a policy opinion, in coordination with an appointed watchdog organization as opposition counsel, with the decision being legally binding.

Al Qaeda has continued to plot, and carry out smaller attacks since 9/11. Awlaki by his own admission was part of this group and had full knowledge of its stated goals, and encouraged further attacks. The idea that "Ok we got all the terrorists that were around since 9/11, but we have to wait for these new members of that same organization to carry out a new attack before we can kill them" is laughable. Many of the members who joined Al Qaeda after 9/11 likely joined because of 9/11 and or our actions against Al Qaeda.

You flat out ignored the other portion of his statement. Here is the logical chain.

If: Congress is permitted to "declare war" on non-state organizations and other entities not bound geographically
Then: It follows that this could be done against groups within the united states
Ergo: We could be "at war" with domestic groups, and, according to the logic you have been utilizing, the executive branch would be able to draw up kill orders against its own citizens without the requirement for judicial review.

Now, because congress can simply do this and do not need an actual reason, how long before this is done against opposition political parties, inconvenient advocacy groups etc? How does this not constitute an unconstitutional Bill of Attainder?

Its not in the power of the judiciary when that citizen is engaged in open warfare against the US. Just because he didn't have a gun in his hand at the time doesn't mean he's no longer an enemy soldier.

There are other instances that are less clear cut. It would be in those situations that you'd need some sort of judicial review.

Had they just sent an A-10 warthog to blow him apart with depleted uranium rounds, it would not be a problem. Combatant, afterall.

This is what you are not getting.

They created a secret procedure that empowers them to put anyone they want on a kill list. That is the problem.

He is an enemy soldier? Fine. Then you plan a mission to kill or capture him like you might for say, Erwin Rommel. You dont create a procedure for kill lists that includes US citizens on the secret say so of the executive branch, that can then be applied to enable the killing of anyone the executive branch deems on secret evidence to be worth killing.

Additionally, why are we charging those we capture with crimes? This is relevant due to the claim that Awlaki could, in principle, have been tried.

We are at war with them. At that point, the job of enemy soldier is to kill our soldiers and disrupt our industry etc. So, some dude we capture outside Kabul who was shooting at our soldiers is not ipso facto a criminal. He is a POW and the mere act of shooting at our soldiers and allies is not criminal. He is not criminally liable for his actions. Not subject to trial, military or otherwise, unless a war crime was committed that we can prove. Collective punishment is prohibited. So given our state of war with Al Qaeda (more on that in a minute), unless this person participated in or planned an attack on US civilians, they cannot be charged or punished in any way. They may not be aggressively interrogated either. They may be asked, but the Geneva Conventions prohibit the use of any sort of punishment or reprisal.

"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

We do not get to have it both ways. We could try Awlaki with treason, but that is about it.

Edit: And he, and his whole group aren't designated as civilian or lawful combatants anyway. They've been designated unlawful combatants, which is an entirely separate legal grouping with different rules.

No. Such a status does not exist under the Geneva Conventions. A person is a civilian, or a combatant. Both are subject to certain protections. There are also spies, but they are not relevant here.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Art 43.
"1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, ' inter alia ', shall enforce compliance with the rules of international law applicable in armed conflict."

Art 44.

"3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an
armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and

(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c [ Link ] .

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

...


6. This Article is without prejudice to the right of any person to be a prisoner of war pursuant to Article 4 [ Link ] of the Third Convention."

The KKK didn't have an authorization for military force approved by congress

If it did, it would be a Bill of Attainder, and unconstitutional. How is the Use of Force authorization any different unless those individuals targeted for death are at present engaged in armed conflict with the united states?

In other words: e can declare war on an enemy state. We can also declare war on say, a geographically bound group like Chechen separatists if we wanted to.

It gets more problematic when an organization does not have borders, but is instead an internationally distributed entity. Can congress declare war against these entities like it can a state? If it can, it can declare war on entities like Green Peace, and thus revoke their protection from being killed by our armed forces. If that is the case, then we have declared war upon an organization that exists within our country, which is a Bill of Attainder and unconstitutional.

Al Qaeda has "US Branches" so to speak. So, if congress did such a thing, it would also be a Bill of Attainder. Congress may not sign writs of proscription.

Moreover, the AUMF did not cover Al Qaeda in Yemen, as mentioned previously. Therefore, we were not in a state of de facto war with the group to which Awlaki belonged. Ergo he was a civilian, not a combatant, and his advocacy for violence against the US government was protected free speech.

Recruiting for and encouraging violence against the US is not only not illegal, the Supreme Court has ruled it to be protected speech unless it is both intended to, and in fact, incites imminent lawless action.

To clarify this.

If a person gets up on a pulpit in front of the capitol building and tells those standing before him to take up arms against congress right then, his speech is not protected.

If a person gets on a pulpit in his home town in Nebraska and tells his congregation that Obama is the whore of babylon and must be destroyed as a matter of religious obligation, his speech is protected. Even if some members go and do it without his direct knowledge. Why? Because it is not imminent enough under Brandenburg

If a person gets together with a cabal of others and lays out a plan to destroy aforementioned whore of babylon, and they go and do it, it is criminal conspiracy, and if we can prove he was involved, speech is not protected. Why? Because then it is criminal conspiracy.

So unless the government has evidence that Awlaki worked in the planning stages of an attack against the US government, he was not criminally liable for ANYTHING. And because the AUMF did not cover Yemen, he was not a combatant under our definition of "declaring war" these days.


................................................................

TL;DR version, Clarification + Conclusion

The fact that Awlaki was a Bad Man is irrelevant. It is an objectionable and dangerous precedent on its face for the executive branch create, on the basis of secret evidence, a list of persons to be killed who are not necessarily combatants within a state or power with which are at war, and then have that list be used (as opposed to being a thought experiment). The list the Obama administration created and then used has no inherent combatant restriction, let alone one that can be enforced, even if we assume for the sake of argument that Awlaki was one. Ergo, what the Obama administration did in this instance is, on its face, a dangerous precedent. One which could lead to individuals being targeted for assassination who are in fact innocent of any wrongdoing, and which can be utilized for titanic abuses.

Awlaki was not a legal combatant, as the Use of Force Authorization utilized to justify continued classification of him as such does not apply to the region in which he operated. So killing him (and his sixteen year old son, who was not a Bad Man by any standard, yet was put on the death list anyway) was the platonic form of State Sanctioned Murder. In point of fact, in the absence of an applicable Use of Force Authorization, the activities Awlaki engaged in were legal under US law. Ergo, the US government has already proven that the precedent set by such a list is a dangerous one that will lead to the extrajudicial killing of such persons as could never be convicted of a crime in US courts. In its First. Fucking. Use.

If we construe the Use of Force Authorization as being a De Facto declaration of war against the whole of Al Qaeda, and that any member no matter in what capacity they operate within the organization is a combatant who is to be killed, then this constitutes Bill of Attainder, which could just as easily be applied to ANY international organization. Such as Green Peace. One which necessarily has US members, thus making it an unconstitutional Bill of Attainder.

In other words Hammer, there is no conceivable way the actions of the Obama administration were legal, and the precedent is doubly dangerous thereby. And that is before we do more than casually mention Awlaki's son.

[K. A. Pital]

To add to what Alyrium said. Members of irregular formations become combatants for the duration of their direct participation in hostilities, and they are protected from being killed outside action. Such unequal treatment of iregulars is necessary to prevent genocidal reprisals which the Army fighting irregulars would justify as 'killing rebels'. Precisely because rebel formations are closely related to civilians, it is not possible to treat them like a regular army. Being outside of direct action, Al-Awlaki does not qualify for a combatant.

[Adam Reynolds]

What I find odd about this case is why Obama did it. Unlike Bush he actually genuinely seemed to care about America's image in the world and the rule of law. Obviously cases like this(alongside the rest of the drone program) showed that neither were exactly true.

I can't even count how many times I've responded to passionate bitching about Obamacare or Benghazi at my job with something along the lines of, "Those are manufactured issues; what really pisses me off is al-Awlaki," and received in return something along the lines of, "Who?"

That is because those issues are among those in which Republicans attack him, they completely agree with the killing of al-Awlaki. If it were President Bush that had killed him, Democrats would likely be up in arms over it. There is also the problem that Republican strategy involves painting Obama as weak, killing a terrorist appears strong.

[Simon_Jester]

Key concept here I'd like to define for everyone is a "bill of attainder." This is a law passed by the legislature that specifically revokes a certain person's legal rights. Effectively, the bill of attainder may declare someone an outlaw, or strip them of the ability to pass property to their heirs, or instruct agents of the state to kill someone.

This was a very common legislative act in pre-modern times. Athens had its ostracisms, many cultures had outlawry and bills targeted at destroying the lives and fortunes of 'enemies of the state.'

But to the people who wrote our constitution, the bill of attainder was revolting. They did not think it was part of the legislature's authority (LET ALONE that of the executive) to point to a particular person and say "you are an enemy, your rights are revoked, we can do as we please with you." For one it's the judiciary's job to decide criminal punishments. For another the bill of attainder spits on the idea of due process because it's the result of legislative or executive deliberations, not a fair trial. For a third the potential for abuse is obvious to everyone that isn't Hammer.

So what it comes down to really is that no, the US government is constitutionally barred from making a specific law, regulation, statute, or 'executive memo' that makes a list of American citizens and says "these individuals no longer have the rights of citizens." Because that does not and cannot be a form of due process.

And this remains true even if the list of citizens are al Qaeda members. It's one thing for us to shoot at American citizens who have joined al Qaeda as part of routine operations against al Qaeda. By all means do so, I hope you hit the target. But when we go out of our way to designate for killing one of these people, we smack into the prohibition on bills of attainder.

And it is NOT worth letting that go.

[K. A. Pital]

Unsurprisingly, the legal way of doing this (engaging in open conflict with AQ members or attempting to arrest Al-Awlaki, even if in the process he and bodyguards would take lead and die) brings more risk of collateral deaths of bystanders. However, since Al-Awlaki remains a civilian outside of direct hostilities, the legal way is clear. Does a greater risk justify commiting a war crime? I think not. It would also save some lives and lower possible collateral deaths if cops just quietly murdered, somewhere in isolated rooms, people suspected of criminal acts before they could complete the act or repeat the act (if we're talking about a repeat offense), but we don't do that, don't we? Not to mention that the attack on Al-Awlaki killed his son. A civilian clearly.

[Metahive]

Actually it's even worse, Awlaki's son was killed in a separate drone strike later, independent of the one that killed his father. There's a lot of handwaving that the real target of that dronestrike were the people the son was with at the time, but it's just that, handwaving. It just smells of a petty blood vendetta.

But I have to bring back the contrast between Awlaki and Clive Bundy again. Clive Bundy doesn't recognize the american government. He's a member of the "Sovereign Citizen" movement. He trespassed on federal land, committed thievery and incited others to bring arms to bear on federal employees who came to recitify the situation. If we go by everything the apologists and Bundy himself have said, this constituted a clear act of war against the US.
Therefore my question to Block and Hammer, why wasn't he getting the freedomizer treatment? Why was a summary execution of Awlaki and son justified, but a summary execution of the Sovereign Nation of Bundy and assorted allies is not?

[eyl]

To add to what Alyrium said. Members of irregular formations become combatants for the duration of their direct participation in hostilities, and they are protected from being killed outside action. Such unequal treatment of iregulars is necessary to prevent genocidal reprisals which the Army fighting irregulars would justify as 'killing rebels'. Precisely because rebel formations are closely related to civilians, it is not possible to treat them like a regular army. Being outside of direct action, Al-Awlaki does not qualify for a combatant.

The question is how you define "direct action". FWIW, in response to a petition requesting an inunction to stop the Israeli policy of targeted killings, the Israeli Supreme Court determined that

D. The First Part: "Taking . . . part in hostilities"
33. Civilians lose the protection of customary international law dealing with hostilities of international character if they "take . . . part in hostilities." What is the meaning of that provision? The accepted view is that "hostilities" are acts which by nature and objective are intended to cause damage to the army. Thus determines COMMENTARY ON THE ADDITIONAL PROTOCOLS, published by the Red Cross in 1987:

"Hostile acts should be understood to be acts which by their nature and purpose are intended to cause actual harm to the personnel
and equipment of the armed forces" (Y. SANDOZ et al. COMMENTARY ON THE ADDITIONAL PROTOCOLS 618 (1987)).

A similar approach was accepted by the Inter-American Commission on Human Rights, and is positively referred to in HENCKAERTS & DOSWALD-BECK (p. 22). It seems that acts which by nature and objective are intended to cause damage to civilians should be added to that definition. According to the accepted definition, a civilian is taking part in hostilities when using weapons in an armed conflict, while gathering intelligence, or while preparing himself for the hostilities. Regarding taking part in hostilities, there is no condition that the civilian use his weapon, nor is their a condition that he bear arms (openly or concealed). It is possible to take part in hostilities without using weapons at all. COMMENTARY ON THE ADDITIONAL
PROTOCOLS discussed that issue:

"It seems that the word 'hostilities' covers not only the time that the civilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon" (p. 618-619). As we have seen, that approach is not limited merely to the issue of "hostilities" toward the army or the state. It applies also to hostilities against the civilian population of the state (see Kretzmer, at p. 192).

E. Second Part: "Takes a Direct Part"
34. Civilians lose the protection against military attack, granted to them by customary international law dealing with international armed conflict (as adopted in The First Protocol, §51(3)), if "they take a direct part in hostilities". That provision differentiates between civilians taking a direct part in hostilities (from whom the protection from attack is removed) and civilians taking an indirect part in hostilities (who continue to enjoy protection from attack). What is that differentiation? A similar provision appears in Common Article 3 of The Geneva Conventions, which uses the wording "active part in hostilities". The judgment of the International Criminal Tribunal for Rwanda determined that these two terms are of identical content (see The Prosecutor v. Akayesu, case no. ICTR-96-4-T (1998)). What is that content? It seems accepted in the international literature that an agreed upon definition of the term "direct" in the context under discussion does not exist (see DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW, REPORT PREPARED BY THE INTERNATIONAL COMMITTEE OF THE RED CROSS (2003); DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW (2004)). HENCKAERTS & DOSWALD-BECK rightly stated that–

"It is fair to conclude . . . that a clear and uniform definition of direct participation in hostilities has not been developed in state practice" (p. 23).

In that state of affairs, and without a comprehensive and agreed upon customary standard, there is no escaping going case by case, while narrowing the area of disagreement (compare Tadic). On this issue, the following passage from COMMENTARY ON THE ADDITIONAL PROTOCOLS is worth quoting:

"Undoubtedly there is room here for some margin of judgment: to restrict this concept to combat and active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly" (p. 516).

Indeed, a civilian bearing arms (openly or concealed) who is on his way to the place where he will use them against the army, at such place, or on his way back from it, is a civilian taking "an active part" in the hostilities (see Watkin, at p. 17). However, a civilian who generally supports the hostilities against the army is not taking a direct part in the hostilities (see DUFFY, at p. 230). Similarly, a civilian who sells food or medicine to unlawful combatants is also taking an indirect part in the hostilities. The third report of the Inter-American Commission on Human Rights states:

"Civilians whose activities merely support the adverse party's war or military effort or otherwise only indirectly participate in hostilities cannot on these grounds alone be considered combatants. This is because indirect participation, such as selling goods to one or more of the armed parties, expressing sympathy for the cause of one of the parties or, even more clearly, failing to act to prevent an incursion by one of the armed parties, does not involve acts of
violence which pose an immediate threat of actual harm to the adverse party" (IACHR THIRD REPORT ON HUMAN RIGHTS IN COLOMBIA, par. 53, 56 1999)).

And what is the law in the space between these two extremes? On the one hand, the desire to protect innocent civilians leads, in the hard cases, to a narrow interpretation of the term "direct" part in hostilities. Professor CASSESE writes:

"The rationale behind the prohibition against targeting a civilian who does not take a direct part in hostilities, despite his possible (previous or future) involvement in fighting, is linked to the need to avoid killing innocent civilians" (p. 421, emphasis original).

On the other hand, it can be said that the desire to protect combatants and the desire to protect innocent civilians leads, in the hard cases, to a wide interpretation of the "direct" character of the hostilities, as thus civilians are encouraged to stay away from the hostilities to the extent possible. Schmitt
writes:

"Gray areas should be interpreted liberally, i.e., in favor of finding direct participation. One of the seminal purposes of the law is to make possible a clear distinction between civilians and combatants. Suggesting that civilians retain their immunity even when they are intricately involved in a conflict is to engender disrespect for the law by combatants endangered by their activities. Moreover, a liberal approach creates an incentive for civilians to remain as distant from the conflict as possible – in doing so they can better avoid being charged with participation in the conflict and are less liable to being directly targeted" (Michael N. Schmitt, Direct Participation in Hostilities and 21st Century Armed Conflict, in H. FISCHERR (ed.), CRISIS MANAGEMENT AND HUMANITARIAN PROTECTION: FESTSHRIFT FUR DIETER FLECK 505-509 (2004), hereinafter "Schmitt").

35. Against the background of these considerations, the following cases should also be included in the definition of taking a "direct part" in hostilities: a person who collects intelligence on the army, whether on issues regarding the hostilities (see Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVEW 1, 116 (1990), hereinafter "Parks"), or beyond those issues (see Schmitt, at p. 511); a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may. All those persons are performing the function of combatants. The function determines the directness of the part taken in the hostilities (see Watkin, at p. 17; Roscini). However, a person who sells food or medicine to an unlawful combatant is not taking a direct part, rather an indirect part in the hostilities. The same is the case regarding a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid. The same is the case regarding a person who distributes propaganda supporting those unlawful combatants. If such persons are injured, the State is likely not to be liable for it, if it falls into the framework of collateral or incidental damage. This was discussed by Gasser:

"Civilians who directly carry out a hostile act against the adversary may be resisted by force. A civilian who kills or takes prisoners, destroys military equipment, or gathers information in the area of operations may be made the object of attack. The same applies to civilians who operate a weapons system, supervise such operation, or service such equipment. The transmission of information concerning targets directly intended for the use of a weapon is also
considered as taking part in hostilities. Furthermore, the logistics of military operations are among the activities prohibited to civilians .. . [N]ot only direct and personal involvement but also preparation for a military operation and intention to take part therein may suspend the immunity of a civilian. All these activities, however, must be proved to be directly related to hostilities or, in other words to represent a direct threat to the enemy . . . However, the term should not be understood too broadly. Not every activity carried out within a state at war is a hostile act. Employment in the armaments industry for example, does not mean, that civilian workers are necessarily participating in hostilities… Since, on the other hand, factories of this industry usually constitute lawful military objectives that may be attacked, the normal rules governing the assessment of possible collateral damage to civilians
must be observed" (FLECK, at p. 232, paragraphs 517, 518).

In the international literature there is a debate surrounding the following case: a person driving a truck carrying ammunition (see Parks, at p. 134;
Schmitt, at p. 507; ANTHONY P. V. ROGERS, LAW ON THE BATTLEFIELD 8 (1996), hereinafter ROGERS; and Lisa L. Turner &. Lynn G. Norton, Civilians
at the Tip of the Spear, 51 AIR FORCE LAW REVEW 1, 31 (2001); John R. Heaton, Civilians At War: Re-examining the Status of Civilians Accompanying the Armed Forces, 57 AIR FORCE LAW REVEW 155, 171 (2005)). Some are of the opinion that such a person is taking a direct part in the hostilities (and thus he can be attacked), and some are of the opinion that he is not taking a direct part (and thus he cannot be attacked). Both opinions are in agreement that the ammunition in the truck can be attacked. The disagreement regards the attack upon the civilian driver. Those who think that he is taking a direct part in the hostilities are of the opinion that he can be attacked. Those who think that he is not taking a direct part in the hostilities believe that he cannot be attacked, but that if he is wounded, that is collateral damage caused to civilians proximate to the attackable military objective. In our opinion, if the civilian is driving the ammunition to the place from which it will be used for the purposes of hostilities, he should be seen as taking a direct part in the hostilities (see DINSTEIN, at p. 27; Schmitt at p. 508; ROGERS, at p. 7; ANTHONY .P .V. ROGERS & P. MALHERBE, MODEL MANUAL OF THE LAW OF ARMED CONFLICT 29 (ICRC, (1999)).

(This is more of a general note, as Awlaki would explicitly not be considered to have forfeited civilian status per the quoted section)

[K. A. Pital]

Thanks. I think that it strengthens the point that Awlaki has not lost the civilian status. Explicitly here:

The same is the case regarding a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid. The same is the case regarding a person who distributes propaganda supporting those unlawful combatants.

Unless, of course, there is some evidence that Awlaki was more than this.

[eyl]

Unsurprisingly, the legal way of doing this (engaging in open conflict with AQ members or attempting to arrest Al-Awlaki, even if in the process he and bodyguards would take lead and die) brings more risk of collateral deaths of bystanders. However, since Al-Awlaki remains a civilian outside of direct hostilities, the legal way is clear. Does a greater risk justify commiting a war crime? I think not. It would also save some lives and lower possible collateral deaths if cops just quietly murdered, somewhere in isolated rooms, people suspected of criminal acts before they could complete the act or repeat the act (if we're talking about a repeat offense), but we don't do that, don't we? Not to mention that the attack on Al-Awlaki killed his son. A civilian clearly.

I don't think that analogy really holds (at least in general, I'm not sure what the specifics were in Awlakis case). Consider the situation where an AQ leader is located in a city held by hostile forces. The damage said leader is causing is to great to ignore him*. An attempt to apprehend him would virtually inevitably lead to a large number of additional casualties, many of them civilians - much more than a drone strike. In your police analogy, OTOH, the risk is to potential future lives lost; the probability is much smaller.

As for Awlaki's son, if it is determined that Awlaki is a valid target, than his death is irrelevant to the legality to a large extent - the laws of war allow attacking a valid target even if it's a certainty civilians will be killed in the process, assuming the collateral damage is proportional to the target's value.

*Stipulating he's considerably contributing to planning/carrying out attacks

[K. A. Pital]

His son was killed in a separate attack.

[eyl]

His son was killed in a separate attack.

I stand corrected.

Also, something I forgot to mention earlier - FWIW, the same ISC decision quoted above also found that "unlawful combatant" could not be justified as a seperate category with different treatment under current international law (paragraphs 25, 27, 28).

[Channel72]

Actually it's even worse, Awlaki's son was killed in a separate drone strike later, independent of the one that killed his father. There's a lot of handwaving that the real target of that dronestrike were the people the son was with at the time, but it's just that, handwaving. It just smells of a petty blood vendetta.

But I have to bring back the contrast between Awlaki and Clive Bundy again. Clive Bundy doesn't recognize the american government. He's a member of the "Sovereign Citizen" movement. He trespassed on federal land, committed thievery and incited others to bring arms to bear on federal employees who came to recitify the situation. If we go by everything the apologists and Bundy himself have said, this constituted a clear act of war against the US.
Therefore my question to Block and Hammer, why wasn't he getting the freedomizer treatment? Why was a summary execution of Awlaki and son justified, but a summary execution of the Sovereign Nation of Bundy and assorted allies is not?

I agree that domestic terrorists or insurrectionists serve as an important consideration in the case of Awlaki. The Brandenburg case seems to be the only precedent, where it was ruled that inflammatory speech advocating violence is legal. However, it's not that straightforward - the Supreme Court seems to have issued an "imminent lawless action" test, for which they found that Brandenburg didn't qualify. (I think all he basically did was attend rallies and rail against Jews and blacks, while organizing a march on Washington.) It seems as though the "imminent lawless action" test has never been thoroughly tested, however, since Brandenburg is the last time this issue came up. (The wiki article has a decent summary of the situation: http://en.wikipedia.org/wiki/Brandenbur ... Background)

With Awlaki we have two relevant differences:

(1) There is (allegedly) evidence that Awlaki did a lot more than just spew hate speech: i.e. he actively involved himself in the planning and logistics of terrorist activities. That's a lot more than spewing racist garbage and organizing a march on Washington.
(2) Unlike Brandenburg, Awlaki is not within the reach of domestic law enforcement, making it impossible to just arrest him.

Now, the allegedly damning evidence against Awlaki seems to be classified, which either means (1) it's flaky, or (2) it might compromise further intelligence gathering to release it. Whichever you choose to believe depends on how much you trust the Obama Administration.

If Awlaki was within US borders, this certainly would have been a law-enforcement operation. Now, if Awlaki really was such a "clear and present danger", I think the best solution might have been a Seal-Team 6 style raid to capture and arrest Awlaki. But I have no idea how logistically feasible, expensive or dangerous that would be (obviously very dangerous), and at the end of the day Obama just made a judgment call to deal with this unprecedented, and legally murky situation.

[Simon_Jester]

Obama made a judgment call, eh?

The problem is, it's not supposed to be his call in the first place.

Nobody said he gets to just up and decide to kill American citizens because it's "legally murky." Creating legal murk to justify ignoring people's rights is a specialty of the modern executive branch, so that creates a situation very slanted in the executive's favor.

In the absence of evidence that al-Awlaki served some truly indispensable function or that there was some emergency, it's very hard to understand how he could make the decision he did in good faith. Especially without so much as consulting the courts ahead of time.

[Thanas]

Here's the thing about al-Awlaki serving in a planning role - the guy has got no military qualifications. He attempted to get degrees in Education. He got a BS in civil engineering and an incomplete doctorate in Human Resource Management. Academically, he was a failure. How did he provide some huge service to planning attacks? It is possible that AQ trained him in that, but without extra evidence none of that screams strategical mastermind to me.