Anwar al-Awlaki killed

[Sasaki Kojiro]

One can only truly say it's not viable to take him alive if you've tried and failed.

Why would you think that? And why would failing be good evidence, surely it wouldn't rule out succeeding next time.

[rory_20_uk]

Why would you think that? And why would failing be good evidence, surely it wouldn't rule out succeeding next time.

Oh, I quite agree - so one can never say that it is impossible to do so. Yet, it appears that not even one attempt was made. Makes it look like a kangeroo court where the arguments were made to fit the decision to kill him - just dressed up in high and mightly phrasology.

[econ21]

Pardon, but in my opinion there's a fallacy there similar to the "innocents may die as long as my offspring (i.e. future innocents) may live" above. With your statement you just justified the bloody massacres of any government.
A country cannot defend itself militarily against its own citizens, its own citizens must be charged, tried and found guilty before the punishment provisioned by its legislation (which should be openly under review and should be adapted continuously yet publicly) is applied in response to the crime. Else it's like putting your foot through Pandora's box.

Reading the account of the internal legal memorandum used to justified the killing, I find the logic quite compelling if you accept that the US is at war with Al Qaeda. If al-Awlaki were serving in the army of a foreign state with which the US was at war, there would be no legal objection to a drone strike on him. The fact that he was serving with a non-state belligerent, Al Qaeda, does not change that in my mind.

On the pandora's box, being "at war" does not justify a massace. Not every declaration of war is justified. And not every government would want to declare war on terrorist adversaries. The IRA long campaigned to be regarded as legally as being at war with the British state (e.g. to get POW rights for its prisoners) but the UK resisted this and treated them just as criminals. In the context of the more limited armed conflict with between the IRA and the UK government, restraint by the latter was probably sensible. There would have been little more likely to have generated support for the IRA than a drone strike on one of its leaders. (There was controversy over an alleged "shoot to kill" policy in N. Ireland in the 1980s but if such a policy existed it was certainly more covert than the drone strike we are discussing.) You could make the same pragmatic argument about the America's war on AQ. But the reason I keep coming back to 9/11 is that the struggle with AQ is peculiarly unlimited. It's also fundamentally international (if al-Awlaki were operating in the US, a drone strike would not have been appropriate) wherea many other terrorists conflicts are essentially internal.

Yet, it appears that not even one attempt was made.

According to the NY Times article linked to above:

Last year, Yemeni commandos surrounded a village in which Mr. Awlaki was believed to be hiding, but he managed to slip away.

[rory_20_uk]

If America was at war, then all the soldiers it took should be POWs and would be covered by the Geneva Convention. America has long argued that they are NOT soldiers and hence such rules don't apply... Until, of course, they need them to do so for a different reason. All detainees transferred to POW camps, with Red Cross visits and no forced interrogation? No, thought not.

Merely that Yemeni commandos failed changes nothing. If a SAS / SBS / Delta Force / IDF had failed to do so, that would have credance. Merely that some local incompetants failed isn't evidence that capture is impossible. I should have said a significant attempt to capture him.

[Nowake]

Reading the account of the internal legal memorandum used to justified the killing, I find the logic quite compelling if you accept that the US is at war with Al Qaeda. If al-Awlaki were serving in the army of a foreign state with which the US was at war, there would be no legal objection to a drone strike on him. The fact that he was serving with a non-state belligerent, Al Qaeda, does not change that in my mind.

On the pandora's box, being "at war" does not justify a massace. Not every declaration of war is justified. And not every government would want to declare war on terrorist adversaries. The IRA long campaigned to be regarded as legally as being at war with the British state (e.g. to get POW rights for its prisoners) but the UK resisted this and treated them just as criminals. In the context of the more limited armed conflict with between the IRA and the UK government, restraint by the latter was probably sensible. There would have been little more likely to have generated support for the IRA than a drone strike on one of its leaders. (There was controversy over an alleged "shoot to kill" policy in N. Ireland in the 1980s but if such a policy existed it was certainly more covert than the drone strike we are discussing.) You could make the same pragmatic argument about the America's war on AQ. But the reason I keep coming back to 9/11 is that the struggle with AQ is peculiarly unlimited. It's also fundamentally international (if al-Awlaki were operating in the US, a drone strike would not have been appropriate) wherea many other terrorists conflicts are essentially internal.

Uhum, I agree. Well, insofar as forcing the war-combatant label on Al-Awlaki can be accepted, yet then we'd have to go back to 2002 and the whole debate then over the mere framing of the issue in terms of wartime policy instead of criminal law (moment in which the above would become a clear case of extrajudicial killing) and we'd both bury ourselves in decade-old articles over which is what. So, in view of the new info on the extraordinary nature of the case and the even more extraordinary way it was treated, I do have to somewhat change my mind -- best way to make sure you've got one after all and a privilege not enough chaps make use of even in light of compelling evidence (that's an old rant of mine, moving on).

I will write though that the fact that this was not made part of a public debate is still unsettling and it should act as a caveat should this situation repeat itself -- in fact, this is not actually the first time an american dies in a drone strike targeting AQ per se as far as I know, Kamal Derwish, a Qaeda member from N.Y., was killed in Yemen in 2002. At the time, the Bush administration communicated that it did not know before the attack that Derwish was in the car. But administration officials made it clear that they were not troubled that he was, because he was considered a Qaeda operative and therefore a legitimate target. Thus I can't let go to all my objections. It's not as if a public debate on legally dealing with american citizens operating in overseas terrorist organisations would've impeded operations. And then, in the NYT article there's the small paragraph:

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

Which again one cannot overlook. Still, in principle, should they actually have a case able to survive the Supreme Court on Awlaki being demonstrably a lawful military target (and I mean demonstrably in Court, because we all know here, even the ones on the other side of the fence regarding the action, that he was so), as they let to believe, no one can object to it morally.

If America was at war, then all the soldiers it took should be POWs and would be covered by the Geneva Convention. America has long argued that they are NOT soldiers and hence such rules don't apply... Until, of course, they need them to do so for a different reason.

Well, no, even the chaps down in Guantanamo are classified as enemy combatants, albeit since 2008, and their treatment does observe the Geneva conventions since 2006, after the Hamdan case I think

[econ21]

If America was at war, then all the soldiers it took should be POWs and would be covered by the Geneva Convention. America has long argued that they are NOT soldiers and hence such rules don't apply... Until, of course, they need them to do so for a different reason. All detainees transferred to POW camps, with Red Cross visits and no forced interrogation? No, thought not.

Well, I think the US regards AQ prisoners as unlawful combatants - as defined in the US army link I posted earlier - similar to bandits in a warzone or civilians who attack downed airmen. I think that assessment is fair - terrorists are not fighting to the same rules as uniformed soldiers of a properly established government. How they should be treated when captured is another matter. I am quite happy with applying the humane rules you referred to.

Merely that Yemeni commandos failed changes nothing. If a SAS / SBS / Delta Force / IDF had failed to do so, that would have credance. Merely that some local incompetants failed isn't evidence that capture is impossible. I should have said a significant attempt to capture him.

In a war, you don't have to show that it is impossible to capture an enemy before you shoot him. The issue is whether an operation to capture would be as effective and pose excessive risk to your men. It is self evident that a drone strike can be put in place more quickly than a SEAL raid - thus being more effective at catching an elusive target - and at no risk to your own personnel.

Uhum, I agree. Well, insofar as forcing the war-combatant label on Al-Awlaki can be accepted, yet then we'd have to go back to 2002 and the whole debate then over the mere framing of the issue in terms of wartime policy instead of criminal law (moment in which the above would become a clear case of extrajudicial killing) and we'd both bury ourselves in decade-old articles over which is what.

I know, but I do think that is the issue here. For many years, I though the War on Terror was an inane idea. Donald Rumsfeld apparently had the same reaction. And I thought the appropriate response was to treat it as a criminal matter rather than a military one. But discussing the al-Awlaki case now makes me re-consider that to some extent. The idea that 9/11 put the US on a war footing cannot be lightly dismissed (as the national head of the air traffic control said, closing US air space: "We’re at war with someone and until we know what to do about it, we’re finished.”). From a domestic political/emotional point of view, the case for the US going on to a war stance after 9/11 was unstoppable. Maybe now that the same scale of atrocity has not been repeated and AQ appears to wilt, the US will move back to treating terrorism as a criminal issue. But I can't with any certainty deny their right to adopt a military approach. (Nor the right of other countries facing severe long term terrorist threats, e.g. Israel).

[Lemur]

More detail about the kill memo surfaces:

The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat. [...]

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him. [...]

It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit the attacker for that operation.

Mr. Awlaki, who was born in New Mexico, was also accused of playing a role in a failed plot to bomb two cargo planes last year, part of a pattern of activities that counterterrorism officials have said showed that he had evolved from merely being a propagandist — in sermons justifying violence by Muslims against the United States — to playing an operational role in Al Qaeda in the Arabian Peninsula’s continuing efforts to carry out terrorist attacks.

Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

It then considered possible obstacles and rejected each in turn.

Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

[drone]

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

And this is where their reasoning breaks down. al-Awlaki was not "detained or prosecuted" by the military, sentence was passed down a year in advance, no court (including military) involved, and sentence carried out by civilian personnel. And what was the imminent risk to innocent people? His killing was premeditated, the situation of his death can't be a factor in the decision because his sentence was passed so far in advance. The memo justifies his assassination regardless of the circumstance, he could have been drinking tea in the desert, it didn't matter. Why would they even include that in the memo, when the circumstances of his eventual demise could not be known? The use of imminent risk here is so egregious, where/when does the "risk" end? So a year later cops can just shoot a suspected armed robber on sight? It's just easier, he might be a risk to innocents, and he don't need a trial anyway, right?