TimothyC wrote:Stas Bush wrote:Why can't you try him in absentia, though?
Crosby v. United States (1993)
...
In short, it's a violation of an individual's Fifth, Sixth, & Fourteenth amendment rights to not be present for the start of a trial. If the individual flees later, that's a different matter.
See, this is exactly the sort of reason that if we really cared about the issue, we'd be coordinating with the judiciary. It's not like there
aren't reasonable ways to make a trial in absentia consistent with due process, for a person who obviously has no intention of appearing for any trial and who cannot easily be brought to justice. If we wanted to create such a process within the existing court system we could.
Although this is one problem with the way the US handles constitutionality; we don't really have a procedure for saying "how do we create a constitutionally compliant procedure" except for, well... hiring a bunch of lawyers and hoping they come up with something the Supreme Court will support if it's ever challenged. Constitutionality is handled entirely by judicial review, and you can't bring a constitutionality case before the courts until someone is able to petition that they've been harmed by government action.
It'd be nice if we had a way to deal with this more gracefully.
TheHammer wrote:I don't disagree with the premise, the problem is we have no such laws to cover a situation like this... 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.
Those are mutually exclusive claims.
It seems that you are viewing his targeting as "punishment" rather than what it really ways, an effort to deny a valuable resource to the enemy. He wasn't "sentenced" he was targeted. Targeting enemy leadership is a tried and true military tactic. The concept of "imminent danger" is one that depends upon your point of view. Even if he never built a bomb, never fired a gun, In his role as a recruiter and leader of external operations, at any moment he could have ordered one of his followers to carry out an attack. In that sense as long as he was alive and free he was always an immediate threat, and a legitimate military target.
This leads to a few key issues.
1)
How do we decide which groups are 'enemies?'
You have repeatedly said that al-Awlaki's membership in an "enemy" organization makes him a military target.
We get that. You can stop repeating it. The problem is, what process exists for deciding which groups make you an enemy of the state liable to be shot on sight without warning?
We cannot justifiably claim that al-Awlaki is covered under the congressional resolution authorizing force to respond to 9/11.
We can claim that because of this resolution the US is "at war" with Al Qaeda, whether he was personally responsible for 9/11 or not. Now, that at least
sort of makes sense... but if we can be at war with foreign terrorist groups, can we be at war with domestic terrorists? Or with political opposition movements labeled as terrorists and driven into violent opposition? Where is the line being drawn here?
2)
If we accept al-Awlaki as a member of an organization we're at war with, it alters our definition of 'war.'
This is a war without boundaries in time or space. There is no clearly defined condition that can realistically end the war- despite being vastly weaker than any military enemy the US has ever fought before, al-Qaeda continues to exist nearly thirteen years after we first brought our force to bear on it. It may become quite vague in the future, this question of "who are our real enemies?" If we don't establish a procedure for identifying them now, we leave ourselves open to the real risk that (again)
This is not about "al-Awlaki was a BADMAN who should die!" This is about "how do we even know who we're fighting? How do we know the limits of who is liable to be killed? How do we assure ourselves we haven't made a mistake?"
While the state just blandly assures us that they can put American citizens on a death list the same as foreigners, because being an American citizen confers no protection if you are a BADMAN
If all this is true, why is our government so opposed to having a degree of glasnost in their decision to put him on a hit list? You'd think they'd have made a very solid case out of trivially available, non-secret information, and simply presented it to all and sundry saying "this is why we deem him an enemy."
And you'd think they would welcome the idea of some kind of actual, meaningful procedure for identifying and convicting American citizens identified as enemy combatants, because it would save them a hell of a lot of flak from civil rights advocates.
Their actions only make sense in the context of a government that thinks "we reserve the right to kill you for looking at us funny," in which case we really shouldn't humor them.
I'd say they have had a
degree of glasnost in their decision to put Awlaki on the list that essentially lays out the public knowledge portions, without revealing additional sources of information. The justification memo, if released, will no doubt contain additional information.
Since the real question here is procedural (what constitutes enough evidence, who makes the decision, who can be held accountable if they make a mistake)... the justification memo is a
minimum for the information needed.
Just saying "al-Awlaki is a BADMAN he should die" is not enough to justify extrajudicial killings of American citizens. If this were a thing done in the heat of battle, there would not be a problem- but hell, we put John Walker Lindh on trial, didn't we? We didn't just drag him out behind the chemical shed to be shot.
A
premeditated decision to kill specific American citizens is the province of the judiciary, because the power of life and death, of "high justice" in the medieval sense, is theirs. Not the president's.
I would like to see some sort of codefied system to handle situations that aren't clear cut military actions, that would include some sort of judicial review. 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.
Obama has taken no concrete action to work with the judiciary, and has shown no sign of
asking Congress to do anything. You can't shift the responsibility to Congress just because Obama asserted in a press release or something that he cares about the problem. Especially not when it's Obama's people who sign the death warrants and pull the triggers.
