Posted by: theoptimisticconservative | February 8, 2013

UPDATE: The Civil War is not analogous to the killing-Americans-with-drones problem

Pundits have for weeks been erroneously comparing the issue of “killing Americans” with drone strikes abroad to the brother-against-brother character of the U.S. Civil War of 1861-1865.  It’s time to point out that the Civil War is a false analogy to the drone-execution issue.  This false analogy muddies the waters, and the public debate over executive privilege and the people’s rights needs to proceed without it.

There are two basic aspects of the Civil War that make it different from the War on Terror, in the ways that matter to the drone issue.  One is an obvious feature of the Civil War:  the South formally seceded from the Union and called itself a separate nation, the Confederate States of America.  The Confederacy thus severed its citizens’ compact with the U.S. Constitution.  Plotting acts of terrorism doesn’t sever a U.S. citizen’s constitutional rights; it makes him prosecutable under U.S. law, in accordance with the protections afforded him by the Constitution.

An American citizen’s constitutional rights do not, in my view, apply to foreigners who plot or commit terrorist acts against America.  My point is not that all terrorists “deserve” constitutional protection in our justice system, if American citizens do.  But in terms of where executive privilege stops, in the matter of executing terrorists or in other ways denying them due process under the U.S. justice system, the bright line is American citizenship.  Even if the citizen is Anwar al-Awlaki.

The other relevant aspect of the Civil War is less discussed, however.  That aspect is its military character.  The Civil War was, for the South, about holding territory by force of arms, and administering it as a separate nation.  For the North, it was about retaking territory by force of arms.  The mode of the conflict was therefore the form in which pitched battle was met in the mid-19th century.  The Civil War was about moving armies over territory and fighting for ground.

It was thus inherently about orchestrated opportunities for killing soldiers in pitched-battle combat.  Given the objectives on each side, it could not have been about anything else.  Lincoln had no intention of merely bottling up the South, absorbing long-term costs – political and military – and letting time be his main ally.  The South had no intention of merely accepting “occupation” and fighting a debilitating guerrilla campaign over decades to wear the Union down.  Both sides sought to establish sovereignty over the Southern states’ territory as soon as possible, envisioning a future of pacification and peace, according to their separate political concepts.

Given these factors, the necessity for killing Confederate soldiers had a significance to the objective that it does not have in the War on Terror.  The only way to win pitched battles on land is to kill the enemy soldiers.  That makes them eventually stop fighting, in a given battle.  Over time, it reduces their ranks and their scope of action, until their leaders either accept defeat or set themselves up for annihilation.  The end-state of this process is the winning side controlling the territory in question and dictating terms to the survivors.

The War on Terror does not have this character.  Although it is, ultimately, about whose view of political morality will prevail on territory, the mode of the conflict is not pitched land battle.  Therefore, the mere killing of enemy combatants is not inherently significant to America’s objective.  It is important to have that clear.  We are not advancing our own security, merely by killing terrorists.  Read that again, please, and understand it.  In the Civil War, it was inherently significant to the military and political objectives to kill combatants.  In the War on Terror, it is not.

In Afghanistan, where the American objective has been to put territory under the control of a friendly, moderate local government, it is significant to the objective to kill the terrorists who attack friendly troops and civilians.  Those terrorists are acting as guerrillas, seeking to deny us the territory that will fulfill our objective.  Their relation to our objective in space and time is what makes it essential to kill them.

But that’s not what Anwar al-Awlaki was doing when he was executed by a drone strike in Yemen.  He wasn’t involved in a tactical campaign to deny us territory (as the Taliban are, for example).  He wasn’t facing American troops, armed and recalcitrant and posing an immediate threat to their lives.  At the time of his execution, there was no tactical, operational, or strategic necessity to kill him to advance the U.S. objective in the War on Terror.

Indeed, the justification raised for killing him has been his terrorist rap sheet: his involvement with terror attempts since 9/11, such as the underwear bomber.  This justification is not a military but a legal-punitive one.  There is no military, operational necessity to kill Awlaki because of what he has already done.  If he is a present threat, the greatest operational use for him would be capture and interrogation.  That would advance U.S. objectives in the War on Terror, whereas executing him from a distance does not.

Of course, from a constitutional standpoint, the U.S. could not forcibly interrogate an American citizen.  But that is hardly an argument for killing him without due process instead.  The U.S. executive should exercise neither power as a privilege over American citizens.  Absent a military necessity for killing Awlaki, the president should, in fact, be bound by the Constitution as regards what to do about him.

The War on Terror was always going to pose these problems for us.  The more it is fought outside our borders, the fewer of these problems it poses for our constitutional protections.  The more it is fought across the rhythm of our daily lives – e.g., with electronic surveillance of our phone calls and emails, with security measures for air travel and mortgage lending – the more of these constitutional-rights problems we will see.

But we have choices about how to approach the problem of radical-Islamist terrorism, and nothing compels us to summarily execute U.S. citizens in pursuit of our objectives.  I am even prepared to state categorically that nothing ever will.

If we had attempted to capture Awlaki, and he resisted and could only be subdued by being killed, that would be one thing.  If he had been present in a tactical situation threatening civilians, and killing him could have eliminated the threat, it would have been appropriate to simply kill him without further deliberation.  If he was plotting a major terror attack, and we knew where he was every day, it would have been useful to track his movements and communications, and roll up the entire operation.  Killing him would be no guarantee of averting the attack in question.

But to advance our objectives in the War on Terror – as opposed to stopping an imminent bloodbath – there was and will be nothing to justify the extra-judicial, standoff-distance execution of a U.S. citizen.  Accepting such an act on a vague, unexamined premise about the War on Terror is worse than sloppy citizenship: with continued application, it will be fatal to the project of guarding limited government.

In the War on Terror, an execution such as Awlaki’s is, in fact, a legal-punitive and not a military, strategic, or operational matter.  At the nexus of the act of killing – the basis for the Civil War analogy – that makes the two wars different, and the analogy false.

We must beware false analogies; Obama’s Homeland Security department has already posited a false analogy between terrorists and law-abiding citizens involved in pro-life advocacy.  The American left is currently busy analogizing the average, law-abiding gun-owner to Adam Lanza, the Sandy Hook killer.  There will always seem to be some crisis-driven reason why Americans must accept the loss of constitutional limits on government power.  Analogies will abound.  But each one that makes unfettered government power seem urgently necessary will turn out to be false, as the Civil War analogy does.

**UPDATE**:  A friend forwarded me a link to this discussion of the presidential authority issue at the Originalist Blog of the University of San Diego School of Law.  It is a very good summary of points on this topic.  I will quote just one paragraph to whet your appetite:

Finally, assuming one accepts as a general matter that U.S. citizens have constitutional rights abroad, I don’t see how, under the President’s theory, the power of non-exigent, non-battlefield extrajudicial killing can be limited to overseas situations. If the President believes that someone within the U.S. is an enemy of the state, and he believes that capture is at the moment not feasible, what constitutional principle would prevent the President from using deadly force (apart from a principle that would also limit it overseas)? That prospect should be sufficient to cast great doubt on the whole argument. The most central concern of the due process limit in the eighteenth century and earlier was surely that the king not have power to kill domestic opponents by labeling them enemies of the regime.

That’s the central concern here as well, which is why discussions of drone killings in general, and the assassination of foreigners in general, are extraneous to this argument.

J.E. Dyer’s articles have appeared at Hot Air, Commentary’s “contentions,Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard online. She also writes for the new blog Liberty Unyielding.

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Responses

  1. Your argument is tendentious in the extreme. It is also unnecessary. The more obvious analogy is where (for example) a gunman takes a hostage. The gunman may or may not be a US citizen. The citizenship of the hostage-taker is hardly a relevant consideration for the police in weighing up an appropriate response. Neither is ‘due process’ if they can get a clear shot.

    You seem to have an unerring compulsion to argue silly propositions.

    BTW, welcome back. I was beginning to miss you.

    • That’s utterly preposterous. Under your logic, the hostage taking gunman could be shot down by the cops while walking across the street to the convenience store the week after the hostage taking incident.

      I wanted Anwar al-Awlaki dead as much as anyone. And if there was no other way to do it than to send a drone without giving him due process, then I’d be all for it. But it didn’t have to be that way. Have a panel of military judges or something like that who decide whether it’s appropriate to kill American Citizen X without the normal due process (of which al-Awlaki surely would have qualified).

      It’s a terrible thing to have an administration with the power to secretly decide what Americans to kill without due process. Talk about a slippery slope.

      • My fellow citizen, Anwar, was not crossing a road in downtown Bronx when he had his rendezvous with US military technology. He was involved in an ongoing criminal conspiracy against this country and its citizens. This involvment was self-proclaimed and apparantly a matter of which our intelligence services had ample evidence. Like my analogous hostage-taker he was in the process of doing harm. Similarly, the circumstances rendered this harm unamenable to interdiction by law enforcement agents or due process.
        The notion that we should set up some sort of court to adjudicate on the guilt or innocence of people like fellow-citizen Anwar before sending in the drones is impractical. Do you intend sending him a summons so he can exercise his ‘right to have his lawyers present to make his defence? Former citizen Anwar (he is now, of course, ‘hors de combat’) and his ilk are pretty mobile and don’t hang around in the one place while your court deliberates. (Unless you are contemplating these matters be decided by some summary secret tribunal. But the latter would not be a court in any real sense, and not materially different from the present process whereby the executive deals with these things, summarily and in secret)
        However, if people like Anwar can be rendered back to the US without putting our soldiers in danger I’m all for doing so and providing him with a proper trial by a jury of his peers, and with all the constitutional due-process rights you could shake a stick at.
        Sometimes in dealing with situations beyond the reach of US justice, rough methods are required.

        • the spithead was an “official” of not merely a criminal organization, but one which the Congress authorized the use of military force against.

          • Though it pains me to refer to the Weakly Substandard, Gary Smitt in the current online edition of the neocon’s favourite comic-book actually gets it right on the drone controversy.

  2. Correct, Ritchie. The difference in the killing lies in the actual moment in time when a criminal is committing a crime and threatening. To kill a criminal in defense of a person under direct and immediate threat (the kidnap victim in your example) is not even close to being the same as plotting an assassination of an American citizen when he is driving home all by himself from the Mosque, for instance.

    Nobody should be able to strip anyone else of his/her citizenship rights by the stroke of a pen.

    And, by the way, going to something the OPTICON wrote on this topic, There is indeed a difference between our Civil War and the WOT. But, to be clear, the South seceded from the Union and declared war but the Union did not recognize that secession, it forbade it and, in fact, disallowed it. So, that being the case, were the Southern forces released from their bounds to the US Constitution and to US law as regards to killing Northerners because they had seceded? But then, if that is true, it must also be true that the North remained bound to the law and to the US Constitution by their denial of that secession and by their refusal to acknowledge the South as a separate nation, no…? But, wait, they weren’t bound by that at all. In fact Lincoln wasn’t particularly concerned with the constitutionality of many things was he…? I wonder…if Lincoln had been able to use drones, would he have used them? Would Sherman have used drones during his march to the sea? Hmmmm………I think that, perhaps, just perhaps, they might have……….

    But, the key question is this one: Would it have been the “right” thing to do? That, just like the use of drones by our Maximum Leader is a question of who gets to write about it afterwards in the history books. The same thing can be said about our Maximum’s other oversteps. For instance, about how, when Bush was El Presidente, O’Maximum opposed the things he just loves doing today. Like extending the debt limit and spending like a drunken sailor. Which kinda explains the whole thing right there:

    IT’S NOT WHAT IS BEING DONE, BOYS AND GIRLS, IT’S ALL ABOUT WHO DOES IT AND WHO GETS TO WRITE ABOUT IT AFTERWARDS!!!!

    Oh, and before I forget, truth, honor, duty, love of country, rule of law, etc. doesn’t necessarily enter into the equation at all so it’s rather futile to discuss these things on those terms. Look, Bush created a whole bureaucracy with the clear intention of diminishing our rights. Obama and his AG are simply interpreting all that creative Bush-caca with a little more…ahhh…let me see…what’s the word I’m looking for…? zeal? zing? empathy? interest? what…?

    rafa

  3. the argument against the bombing that was designed to kill Awlaki centers upon whether it was in accordance with US law and an argument that it was not a military necessity isn’t of much avail in that.

    as well, the claim that there’s an important distinction to be drawn between killing people taking up arms against the USA as part of the CSA or as part of Al Qaeda…based upon military considerations… is not pertinent to legal considerations.

    I’m sure that your intentions were good but to say that people joining AQ and taking part in attacks against US civilians on their home territory is less a constructive renunciation of citizenship than was being a secessionist isn’t much good.

  4. Geography rules the day.
    An American Citizen, in the United States, conspiring or planning with, or directing terrorists should be captured by domestic law enforcement agencies if possible. If found guilty, the appeals should be expedited. The American Citizen should then be executed ASAP.
    American Citizens in foreign countries that aid, promote, direct, enable, and/or conspire to commit violence against other American Citizens or United States property should be killed where ever they are found.
    My friends, if you wish to injure or kill the Great Satan, you should stay in the United States. If guilty, you will live slightly longer. If you wish to play terrorist overseas, your life will end abruptly with much attending violence.
    Drones: Think Before You Act.
    They may be pretending to be Virgins. Bacon anyone?

    • allow me the self-gratification of making the first reply to your comment and pretty much agreeing with you

      • As my friend Amber would say, “WOW”.

  5. It must be gratifying to have Paul make the first “reply” with Fuster close behind.

  6. First, let me say welcome back. The absence of your commentary has been an empty hole in the internet.

    Second, I disagree with your formulation because it grants protections to war criminals that an enemy fighting according to the laws of war would not enjoy.

    If, during a war, a US citizen turns traitor, joins our enemy, dons an enemy uniform, obtains a position of command, and takes up arms against the US, our military forces would be fully justified in killing him. And we would not have to wait until he is in the act of attacking our troops. But Islamist radicals don’t follow those rules.

    Suppose instead our US traitor joins al-Qaeda, does not wear a uniform, and hides in a civilian population in a country that will not cooperate in apprehending the traitor and extraditing him to be tried for his crimes. Meanwhile, he is directing and plotting attacks — not on US armed forces, but on noncombatant targets. Does he get a free pass when the more honorable traitor gets shot?

    The real problem I see in the second scenario is not the theoretical authority to kill an opposing combatant in war, but the proof needed to act.

    As Rafa noted, the Civil War is not a good comparison because, while the South believed it had seceded, the Union refused to recognize secession. Lincoln even issued Decrees such as the Emancipation Proclamation premised on having authority over the states in rebellion. A further difference is that the Civil War was fought openly. There were spies, and a Northerner who was caught acting as a spy for the South might (or might not) have received a trial before being executed. Similarly, if we apprehended the US traitor today, he would receive some sort of trial.

    Of course, the utility of killing the US traitor is open to debate in both scenarios. Just because we can doesn’t mean we should. We can argue whether a particular attack helped the war effort, but even if the attack were improvident does not mean it was illegal.

    • Thanks, Vin. It’s good to see the crowd here too.

      The reason I continue to disagree on this matter is that being in a war doesn’t give anyone, even the president, a license to just kill, whenever or wherever and for whatever reason. That’s not how war works. War is fought for a purpose, in a set of given circumstances, and the urgency of the need to kill is a function of those factors.

      If your theoretical American were in combat and were killed incident to combat, then of course, it would be appropriate to kill him — not for the purpose of extinguishing his life, but for the purpose of gaining the objectives for which combat has been engaged.

      The president’s purview is the latter. As regards the former, it is the job of the judicial system — or, in war, it may be the job of a special tribunal; it’s not like we have a cookbook for how to do this — and it is not to be entrusted to the president alone.

      In the War on Terror, killing a “mastermind” is not a method of winning the war. It is not a way of achieving the objective. Therefore, it need not be, and is not, the president’s call, in the unique circumstance of the mastermind being a US citizen.

      My argument is that the necessity for killing, in the case of terrorist planners, is not urgent enough to the task of fighting the war that it should override the necessity of keeping the US federal government within its limits. In my view — partly for the reasons advanced by Rafa — the question of where those limits lie is actually clearer in the case of Awlaki than it was during the Civil War.

      One thing is certain: Judged from the year 2025, it will be clear that it didn’t matter one iota to the War on Terror that Awlaki was executed. It made no difference whatsoever to the progress of our campaign or the outcome of the war. But it will matter a very great deal to America, and to what happens to the people in the interim, that Obama decided unilaterally to execute Awlaki, and that we simply accepted this act.

      The point here is not to protect Awlaki but to limit the power of the executive. We would never regret doing that as regards the summary execution of American citizens. Any and all wars can be waged effectively without ceding the president this power.

      • since when did it become questionable during course of war to kill members of the military not actively in combat?

        would blowing up a supply ship be ‘expansive”? would bombarding a bot camp? or a soccer stadium hosting a ceremony for soldiers graduating from training camp?
        how about a weapons factory disguised as a fertilizer plant?

        what are your thoughts concerning the assassination of Yamamoto?

        • You find us one of those Taliban supply ships, fuster, and we’ll sink it.

          What you’ve done nicely here is highlight that not all wars have the same features. Of course it’s necessary to attack supply convoys, and American traitors may be killed in such attacks. Some wars, like the GWOT, don’t have supply convoys.

          Why would you ask me about Yamamoto? He wasn’t an American citizen. The assassination of enemy military leaders is a separate question, as is the use of drones to assassinate foreign terrorists.

          • I asked about Yamamoto to find out whether it’s assassination as part of war to which you object or whether your leery of assassination during war of people who might or might not be American citizens and are in armed conflict with the US.

            I asked about convoys and graduation ceremonies for terrorists because i fail to understand how, at bottom, you define “expansive’.

            I see merit in your claim that we shouldn’t go out of our way to blow up traitors if there’s not much benefit for doing so, but the rest is vague and neither convincing nor consistent with the bulk of your writings.

            all the questions were to try to get a better understanding of your thoughts here.

  7. You could say we whacked Awlaki the Yemeni citizen ….that’s good enough for me. I’ll leave the rest to the lawyers.

  8. Having positited a tendentious argument – I suspect for no better reason than gecause your intense animosity for the President has led you to persuade yourself he can do no good – you now descend into sillyness.

    Most Americans would be firmly of the view that Awlaki was indeed in combat, and the purpose of the exercise in killing him was to kill a combattant enemy of the United States. Killing enemy combattants is what you do in war because when you kill them they stop making war on you. The fact that he might have been entitled to a US passport is hardly relevant in such circumstances.

    To suggest that the domestic judicial system has a decision-making function with regards to overseas military operations is absurd. The judicial process (whether regular courts or a special tribunal) only has a function if an alleged traitor is successfully apprehended here or abroad and extradited or otherwise made amenable to the courts by the executive. Where he is abroad, the decision to extradite or deliver summary justice is a operational matter made on operational considerations. And to say it is “the President’s call” is merely smart-ass disingenuous. We have all sorts of people, military and civilian, involved in the deliberative process on operational matters. There is also Congressional oversight of those decisions.

    “Decapitating” the enemy by killing its masterminds and generals is one of the things that you do to win a war. It isn’t the only objective, but to suggest that it doesn’t matter is simply silly – as is the implication that an enemy who happens to carry a US passport in his back-pocket should have special due process privileges to protect him from the likely and deadly consequences of his actions. Of course, if Awlaki had been apprehended in the US, or by a foreign government and extradited here, he could have had all the due process rights in the world, and the courts would have decided his fate. But when you decide to prosecute your war beyond the reach of due-process you can hardly call upon the protection of the same due process. If Awlaki wanted to avail of his right to US justice he could have opted to surrender to it.

    Your anticipation that the killing of Awlaki will not matter one iota when seen from the hindsight of 2025 is an interesting comment. Not being a clairvoyant like yourself I can only give my opinion that the killing of Awlaki taken with all the other Al Quiada movers and shakers who have been “droned” in recent years will indeed be seen as significant in having brought that organization to a shadow of its former self.

    And, no, I don’t accept the proposition that ordering the killing of an enemy combattant who is beyond the reach of US law is an abuse of executive power just because that combattant happens to have a US passport, or that somehow that decision is one for the judiciary rather than the executive.
    Incidentally, in WWII we bombed places like Peenemunde knowing that US and American service personnel were held in camps close to the targets and would certainly (and did) sustain casualties. I note that Roosevelt and Stimson didn’t refer these decisions to the courts. Sod Citizen Awlaki.

    And if you have concerns about executive power you might reflect that several thousand US service personnel and citizens were casually thrown away on an unnecessary war engineered on the lie that the Iraqis had WMD.
    This president got that one right as well.

  9. Paul would be an excellent “spokes person” for the IDF and Mossad position on killing terrorists. Let us use “tendentious” as often as possible. Perhaps Bill will pick up on it as a word of the day as in “don’t over use the word tendentious.”

    • Not really. You see, citizen Awlaki was dispatched by way of defending the US, its citizens, and property, from an external aggressor.
      The boot is on the other foot when it comes to Mossad etc. Mossad is part of the secret police setup enforcing an illegal occupation. I supose the more accurate comparison would be the right of the Palestinians to defend themselves against Mossad etc. and their human shields in the settlements who are stealing their homes and farmland.
      I trust this is sufficiently “tendentious” for you.

      • You see “secret police”, I see counter terrorism. The Mossad counter terrorism missions have never been confined to the Palestinians. They reach out all over the world to touch their enemies. They are effective.
        Trust is a fragile thing.

  10. JE, excellent analysis as usual. Just a question, how does it compare to the outlaws of old when wanted dead or alive?

    • Thanks, AH_C. (Not sure what changed in your screen name or email address, but that’s why your comment was delayed.)

      You raise an excellent question here. I imagine, although I don’t have certain knowledge, that at least some groups in American society objected to the “wanted, dead or alive” formulation even in the 19th century. (E.g., Quakers/Societ of Friends.) Their objections may have been based more on a moral view than on a constitutional concern. The circumstances of the time, moreover, produced a much weaker sense of “control” of events, in both the authorities and the people, than what we have today. There was no such thing as tracking criminals through electronic means or night-vision scopes. The criminals could roam free for literally months without being detected by the authorities.

      That is obviously not the case today, and many of our politicians today make policy as if the people will never to have kill or injure a criminal to defend themselves. The underlying idea of how community life works has changed, not necessarily for the better (or for the worse, for that matter, if we consider ALL the ways it has changed).

      But the bottom line is that “wanted, dead or alive” is a formulation that puts a bounty on the criminal’s head. (Or, in the case of hundreds of Hollywood plots, on the falsely-accused non-criminal’s head.) The question your question raises is why we haven’t used the bounty method more to bag terrorists. We’ve offered monetary rewards for information from time to time, but we continue to do the dirty work ourselves.

      If it’s because we don’t want to be brought a pile of corpses — as if the family cat were bringing us birds and mice — that in turn is because a pile of corpses has no utility. If it did have utility, we wouldn’t care whom we were paying to bring us the goods. And that is a very important point.

      • Therein lies our dilemma. In the old days, one could turn a new leaf by getting far away as possible and staying out of trouble. Sometimes they got away, sometimes they didn’t. I kinda like that notion, sort of like the Israeli sanctuary cities. The always increasing electronic dragnet goes against the concept of sanctuary. Not necessarily a good thing, where no witnesses are even required if some day it is decided by someone that you need to be eliminated and with a few keystrokes – done (think Running Man). Innocence is immaterial, so long one is an inconvenience to the powers that be.

        It would take a concerted effort to drag the govt kicking and screaming back out of nosing into everyone’s business. But it would take abuses of the most extreme imaginable to make people choose liberty over the illusion of security.

        If anything, it took a Bush to give us TSA, Patriot Act, where law-abiding citizens gave him leeway because despite their misgivings, they trusted him – the majority that is. Imagine Clinton trying to do that. But I count myself among other conservatives and libertarians that giving up our privacy and liberty to govt to protect us from “terror” was a big, big mistake.

        On another front, we do have instances of heavy-handed govt action, such as Ruby Ridge, Waco and Elian Gonzalez. How are they any different than a drone strike. All three were taken down without due process. Another commenter mentioned Russell Means. I’ve always been conflicted by that saga. If our system is a system of governance by the people, of the people, for the people, then why couldn’t a group stand up and say “I want a divorce”?

        In a Federation, they should be able to leave without giving up the land they stood upon, more so sovereign States as recognized by the constitution. Whatever happen to “depart from us in peace”? Heck, parts of what is now Canada, could have just as easily been part of the US and vice versa, depending on the inclinations of the colonials. So the imperative of a Republic would be to truly represent the people to ensure they stay in the union.

        Much like a marriage, consenting individuals coming together to form a union. Likewise, divorce when it doesn’t work out, altho I wouldn’t go as far as the “no-fault” model, but certainly when cause is warranted for breach of faith, etc.

        What if Andy Jackson had heeded SCOTUS, instead of driving the Indians out of the SouthEast? Would Russell Means have taken his path of rebellion if treaties were held in sacred trust from the get go? Maybe some of the Indian nations would have voluntarily joined the union, or opted to be more autonomous- freedom of association writ large. We’ll never know, because Andy ignored the court and scoff at their impotence for enforcing it. But what is undisputed is that it set a precedent. Altho, I’d say none have been as in your face since until Oboobi came along.

        Then there’s Lincoln. Going back to the marriage analogy, when the South filed for divorce, he was like the abusive husband, beating her into submission. As much as I admire him, slavery would have eventually ended without the war and possibly without the hundreds of thousand causalities.

        No easy answers, as it should be.

        Nonetheless, Abe established a number of precedents that in the long run contributed to us evolving into a powerful central govt, quite unintended from what the founding fathers envisioned. Along the way, big govt figured out how to entrench their powers by raiding the people’s treasury and writing evermore onerous laws, such that if any of us squeaks too much in protest, we can be brought up on any number of charges.

        All the same, I don’t fault either of them because they were principled and moral men. Going back to the adage that our government is for a moral nation. Without morals, we are soon engulfed in tyranny.

        In contrasting Bush and Obama, Bush was moral, but gullible vis a vis ROP and progressives in general, because he really wasn’t a constitutional conservative. “Break the Free Market in order to save it,” anyone?. Barack is not moral; social justice is just a euphemism for carrying out his brand of jihad/pogrom against the classes – a new world Marxist.

        Coming full circle to Awlaki, the answer depends ultimately on who is writing history. After all Bush did declare that “you are either with us or you are against us” and that he would bring evildoers to justice and Obama followed thru on that threat. Lots of pros and cons to drive a moral decider insane, but an easy out for a weasel. This is the case I rather suspect of Oboobi. He didn’t want the headache of dealing with a captured Awalaki, so take him out. Easy enough for one to do, when he views babies up to the point of birth as mistakes and disposable.

        But like you, I would rather err on the side of no action until forced into imminent preemption. But ya gotta love the hypocrisy of the left. Hyperbolically, Bush is a war mongering baby-killer and thus evil. On the other hand, by his own legislative work, Barky is a cold-hearted baby killer and is elevated to godhood. I guess it’s a matter of whose baby is being killed.

        Rest assured, the next narcissist in chief will bring us post-birth abortions and droning of American citizens within their own abode. Because, you know; there comes a time when you have had enough 1st, 2nd, 4th and 5th Amendments and need to restrict your claims upon them for the good of the country

        Anyway, thanks again for your analysis, which I’ve yet to see any other site explore.

  11. Well Awlaki should have been dealt with long ago, the operation that targeted Ibrahim Al Banna, and yet killed his son, was another matter.
    that fell under ‘collateral damage’

    • Close only counts in Horse Shoes I suppose.

      • could be you blew that phrase by fragmentation.

  12. Dancing around the point… (ig)noble intentions… and the danger in all things relating to use or misuse of sovereign authority.

    1) There is a difference in “law” (Quotes used because sovereign action requires no actual legislation, regulation, or rule set.. it’s different but we don’t have the language to adequately discuss it anymore.) IF Person A is in rebellion, under arms overseas, and in some nihilistic cult that has no nation state status THEN Person A is an enemy combatant, and therefore subject to the harsher regulations allowed for in various treaties governing the Western rules of war (remember not law… treaties… sovereign acts and actions.) So in the grander scheme of things rubbing out Anwar al-Awlaki is within the bounds of sovereign action in a time of war.

    2) HOWEVER. We are not just a sovereign nation. We have imposed upon our government a LEGAL framework of limitations, and rights possessed by individuals. This means that the citizen (or lawfully recognized resident) is subject to the laws, and protected by the legal code of the government of the sovereign nation. That Person A is in rebellion, but still a citizen of the nation is now, very significant. Our nation, as supported by the Supreme Court, claims sovereignty and legal authority over citizens not within its boundaries, as well as criminal subjects also not within its boundaries. That claim therefore changes the character of what can or cannot be done to Person A, regardless of where he resides, or under what conditions he is operating.

    3) Intent of the parties on all sides is critical here. IF Anwar al-Awlaki had been killed in an incidental or collateral drone strike on a known foreign enemy combatant, as an accident of the conditions of war, then there is no foul possible. The sovereignly legal target under the established rules of war was Person B. Person A, sleeping beside Person B in a tent is therefore placing himself in jeopardy. There is a case to be made that the drone strike on Person B should not have been conducted because Person A could be killed, but that presupposes that there is absolute proof that Person A’s coincident death could have been avoided.

    The character of the entire situation changes if Person A is in the tent, and we know the fact, AND choose to kill Person A. Since ‘A’ is a citizen, and due the legal rights of a citizen, regardless of his personal state of rebellion, then the intent to kill him, absent some legal (to our government) justification is highly illegal. Therefore, there is a LEGAL obligation to resolve the restrictive issue of the nature of the citizenship of Person A. Birthright citizenship is a modern standard. Before the 14th amendment to the Constitution, birthright citizenship was less absolute. After the 14th amendment passed, it was non-arguable. If you are born in the territorial US, or under the auspices of projected sovereignty (like a military or state department dependent being born overseas) you are a full birthright US citizen, and due the rights of that citizenship, unless, as an adult, you voluntarily declare otherwise, and surrender those rights.

    Anwar al-Awlaki doesn’t seem to have renounced his citizenship at any time, at least in public, so he is due the substantive due process required by the courts and the Constitution. Subjecting him to a lethal sovereign act is therefore unlawful under our current legal framework.

    This would all be fixed and clear if Congress would do its duty, and amend the FISA court rules to include findings of citizenship status. The legal authority to find Person A has de facto surrendered their citizenship and therefore is de jure no-longer a citizen is quite simple to accomplish, though the hearing should not be trivial and there should be a sufficient standard of evidence required.

    This would clear the target as an enemy combatant subject to the sovereign action of the rules of warfare.

    It sounds trivial, but it isn’t. If a sovereign head of state can arbitrarily, unlimited by any judicial review, or legislative intent, declare a death warrant on a citizen of the United States…Then the accident of circumstance and geographic location of the assassination is all up to the fiat of the sovereign.

    That is not what this nation’s founders intended, in fact it was a major cause for the rebellion in the first place.

    There is a legal way to deal with this and it should be a “no brainer” to understand why.

    r/TMF

    • Nice! Valid points all

  13. Hypothetically and out of curiosity. What if someone tries to secede from the United States again? Are we gonna drone a future LA county political leader of dual US/Mex. citizenship that advocates for a referendum on Los Angeles joining Mexico?

    For example, If Russell Means had persisted with a declaration of a “Republic of Lakotah homeland’ within U.S. borders, while contacting foreign governments (Turkey, Venezuela etc) to recognize said homeland…would he be considered a candidate for “dispatchment via drones” today as well?

    Seems to me that that could be construed as defending the United States, its citizens and property from external aggression as well.

    • That is precisely the point, jgets. Presidential authority to summarily execute citizens could be used here, on our territory, as long as the citizens in question were designated enemy combatants, and a “war” of some kind was deemed to be in progress.

      Others (like Rafa) have pointed out along the way that a “war on terror” is a vague, amorphous concept, one that can fit the definitions of conventional “war” when it has to, but can also conveniently escape them in a way conventional war can’t. There is an important sense in which a “war on terror” can morph into something like a “war on poverty” — and in the sense of requiring a perpetual list of ritual, lifestyle sacrifices from the people, such as TSA screenings and incidental email monitoring, the War on Terror has already become an “interventionist-lifestyle” phenomenon, like the War on Poverty idea of “redistribution.”

      What happens when the “War on Hate” is declared? In our public discourse, the all-important distinctions by which we tolerate dissent among ourselves are already being elided out of existence. There are plenty of conventional venues in which, for example, people who oppose state-imposed “same-sex marriage” are simply referred to as “homophobes” — and “haters.”

      It is blindingly clear that, in fact, such people are neither phobic nor full of hate; the method of demonizing them is intended to marginalize them in the public square and ultimately shut them up. But if a War on Hate is declared, what powers will the president be assumed — based on precedent — to have over the accused “haters”? Will we be grateful if it doesn’t involve summary execution, but only seizing their property and curtailing their liberties, by means of fines and denial of employment?

      Whatever you agree to have government used for will eventually be used against you. That is as much the case with presidential summary executions of US citizens as it is with anything else. If it were necessary to the fight for specific, individual terrorists to be executed while they were on routine road trips, then we would have a really tough choice to make. But it’s not.

    • jg— if Congress votes to authorize the use of military force against secessionists we’ll use military force against them rather than simply sending federal agents to arrest them or use all necessary force against them should they resist arrest.

      • I know your intentions are good but after a night of goin thru the sh*t with the Europeans (with copious amounts of grappa) , I don’t think things are gonna be as clear cut as you imagine in the 21rst cent. dear Fuster. And I for one will defend my birthrights, regardless of which side of the Atlantic I happen to be on. No more suicidal wars for my ilk. No more World Wars. I will maintain what what was bequeathed to me, and I won’t surrender it to the savages, well meaning Irish grannies included..

        • the general drift to sitzpinklerization in Europe tends to slow when they feel the threat and aren’t focused upon deriding our responses.

  14. [...] basis for a good case that it doesn’t.  His approach is mainly deductive; mine adds to that the perspective of military necessity, given America’s security circumstances (as opposed to, say, Israel’s, or Colombia’s).  And [...]

  15. [...] basis for a good case that it doesn’t.  His approach is mainly deductive; mine adds to that the perspective of military necessity, given America’s security circumstances (as opposed to, say, Israel’s, or Colombia’s).  And [...]


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