When War On Terror Targets Americans

[Bill Mattocks]

Again, just my thoughts.

I don't think a person can 'hide behind' their rights and thus lose them. Rights are rights. So-called 'Reverend' Terry Jones used his 1st Amendment rights to burn a Koran, resulting in the deaths of 12 UN workers. It has been argued whether or not he is morally responsible for those deaths; he certainly 'incited to riot' and he certainly knew that was a probable outcome of his actions - he was actually trying to prove a point which would not have been proven if people had NOT rioted. So, can the UN order his assassination on US soil, since he has committed no crime here and we certainly would not arrest or extradite him to stand trial in Afghanistan, where the UN workers were killed? Assuming Afghanistan had the technology, would it be OK for them to have him killed in the USA for his 'crimes' there? Remember, he's just a mouthpiece; he didn't directly kill anyone.

My position is that there isn't any such thing as 'hiding behind one's rights' that therefore makes them null and void. One either has them or one does not.

 

[oftheherd1]

I don't think a person can 'hide behind' their rights and thus lose them. Rights are rights. So-called 'Reverend' Terry Jones used his 1st Amendment rights to burn a Koran, resulting in the deaths of 12 UN workers. It has been argued whether or not he is morally responsible for those deaths; he certainly 'incited to riot' and he certainly knew that was a probable outcome of his actions - he was actually trying to prove a point which would not have been proven if people had NOT rioted. So, can the UN order his assassination on US soil, since he has committed no crime here and we certainly would not arrest or extradite him to stand trial in Afghanistan, where the UN workers were killed? Assuming Afghanistan had the technology, would it be OK for them to have him killed in the USA for his 'crimes' there? Remember, he's just a mouthpiece; he didn't directly kill anyone.

My position is that there isn't any such thing as 'hiding behind one's rights' that therefore makes them null and void. One either has them or one does not.

Obviously a poor choice of words on my part. Sorry about that.

But rights are granted, and often exceptions are defined, either by law or the courts. Then there is the question of extra-territoriality and rights; does that play into the rights issue in any way?

 

[Bill Mattocks]

Obviously a poor choice of words on my part. Sorry about that.

But rights are granted, and often exceptions are defined, either by law or the courts. Then there is the question of extra-territoriality and rights; does that play into the rights issue in any way?

Not to quibble over technicalities, but in the US, rights are not exactly 'granted'. There's a reason why I bring this up. In most countries, rights are indeed 'granted'. In the US, our basic civil liberties are not granted to us, but forbidden to the federal government to infringe. It may seem as if that is a distinction without a difference, but there is a difference. Anything that is 'given' can be taken away. The assumption our Founders made and enshrined in the Constitution and subsequent Bill of Rights was that nothing and no one could take our rights away, they were given us by our Creator, whomever or whatever one imagines that to be. By forbidding the federal government (and by later extension, the states for most of the Bill of Rights), the Founders made it very difficult for the government to abrogate those rights.

With that said, all rights have limits. The traditional example given is that of yelling 'fire' in a crowded theater. However, and in general, most limits on rights are undertaken only in gravest extreme, which life or liberty is at stake in a very explicit way. In other words, you can't yell fire in a crowded theater because it is very simple to extrapolate that doing so will cause a panic, people will be trampled to death trying to escape. A clear and present danger of them losing their basic right to life. Their right to live trumps your right to shout 'fire'.

More clearly put (and a nice little read):

http://www.cas.sc.edu/socy/faculty/deflem/zsottiauxrev.html

The United States Constitution does not explicitly specify conditions when its rights do not apply, yet the courts have [*675] drawn certain limits to its provisions by estimating the scope of certain rights and defining their contents. Further, certain standards or tests have been formulated to examine a right relative to a government interest that is meant to be served by restricting that right and to estimate the fit between a government interest and the means with which it is meant to be achieved. No emergency derogations are included in the Constitution except in the case of the privilege of the writ of habeas corpus, which can be suspended in the interest of public safety during a rebellion or invasion. As such, the US Constitution is more geared towards a categorical rather than a flexible approach in limiting rights.

There have been no court cases, no case law, no laws passed, not even an Executive Order, which states when a US citizen loses the right to Due Process. As stated above, those would be 'categorical' denials or limitations of civil liberties which citizens of the US enjoy. Instead, we have the 'opinion' of the Justice Department, which carries no legal weight in law, which alternately states (I have heard both from that snake Holder) that either A-A's 'Due Process' rights were observed (how that could be completely eludes me as I believe it must any sane person), or that Due Process did not apply to him because he was an active enemy combatant, engaged in activity which represented an immediate and existential threat to the entire nation. In other words, A-A had the power and was about to completely destroy our nation, so we had no other choice but to kill him in self-defense, just as if he had pointed a gun at a cop trying to arrest him. Sorry, not buying it.

 

[MJS]

I would quibble with you only a little bit on that. I do believe anyone can be an enemy combatant, but to be so involves picking up a weapon and firing at our troops; not creating blogs and websites and Youtube videos urging other people to do it.

I cannot find the reference now, but I believe we have held as POW's, American citizens who fought against us during WWII. I can't remember the disposition of the cases now, but they were fired on, captured, and treated as any enemy combatant.

But the word 'combatant' itself means one who fights. I am not confident of its application as 'urging others to fight'.

Question for you Bill. While he may not have been directly involved with carrying out an attack, ie: him physically not blowing someone or something up, etc, wouldn't you say that his actions are still on the same level as those that are picking up weapons? For example: I'm the getaway driver for my 2 friends who rob a bank. I'm not going in the bank, I have no weapon, I'm simply the driver. They go in, rob the place, run out, get in, and off we go. The police stop us. They're not going to care or believe me, even if I say that I never went in. It'd also be no different, if I was asleep in the back seat, when they decide to rob a store. I wake up to the sight of a gun in my face, held by the police. In both cases, I'm just as guilty as the others. In the latter, it'd probably take alot of effort for me to convince people I knew nothing of their plan.

Question 2: It seems that the 3 'exceptions' that I posted in my OP, were the deciding factors to off this POS. It seems that those 3 examples were the over ruling factor to trump the due process. Thoughts on that?

 

[Bill Mattocks]

Question for you Bill. While he may not have been directly involved with carrying out an attack, ie: him physically not blowing someone or something up, etc, wouldn't you say that his actions are still on the same level as those that are picking up weapons? For example: I'm the getaway driver for my 2 friends who rob a bank. I'm not going in the bank, I have no weapon, I'm simply the driver. They go in, rob the place, run out, get in, and off we go. The police stop us. They're not going to care or believe me, even if I say that I never went in. It'd also be no different, if I was asleep in the back seat, when they decide to rob a store. I wake up to the sight of a gun in my face, held by the police. In both cases, I'm just as guilty as the others. In the latter, it'd probably take alot of effort for me to convince people I knew nothing of their plan.

Absolutely yes. But we're not talking about his criminal complicity here; rather, about the extenuating circumstances, if such exist, that trump Due Process.

A getaway driver can be charged with murder if his bank robber partners kill someone. Clearly, and in my opinion, most agreeably. However, if a bank robber pulls a a gun during the bank robbery, the bank guard might legally shoot him down. Can he then also gun down the getaway driver as he sits in the car at the curb? They may be equally complicit legally, but both do not pose a clear and present danger to the bank guard; only the robber with the gun does.

If we use the notion that a clear and present danger is necessary for the US government to act in defense of our nation, then that danger must be able to be elucidated, don't you think? "I shot the robber because he pointed a gun at me," is very clear reasoning. "We fired a missile from a drone at a terrorist whom we believed was about to set off a large bomb," would be another I'd be OK with. "We fired a missile from a drone at a terrorist who has never engaged in direct action against us, but encourages others to do so on Youtube and via printed material because he was about to make a new video?" Not so much.

Question 2: It seems that the 3 'exceptions' that I posted in my OP, were the deciding factors to off this POS. It seems that those 3 examples were the over ruling factor to trump the due process. Thoughts on that?

Let's review:

"First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States;"

And Al-Awlaki represented an 'imminent threat of violent attack' how? To me, 'imminent' means immediate. 'Violent attack' means just that 'violent'. There is no such thing as a Youtube video which can blow anyone up or murder anyone directly. No magazine article can set fire to buildings or shoot people.

second, capture is not feasible;

Oh, I have a little problem with that. We could not catch the bank robber, so we blew up his ****ing car when we knew he'd be in it with his family. Does that strike you as Due Process? I understand capture was not feasible. I do not agree that it is a valid reason for abrogating civil liberties accorded US citizens. If A-A had not been a citizen? Hey, no problem for me. I never said he wasn't scum that needed to be destroyed.

and third, the operation would be conducted in a manner consistent with applicable law of war principles,"

That statement actually doesn't mean anything. He's saying "And we do it the way we do it." Yeah, I get that. It doesn't tell me anything, but I get it.

What the entire statement says to me is that the guy was a major pain in the *** and it would have been very damned inconvenient to try to take him out legally, so we said the hell with it and blasted him. NOT OK when the person blasted is a US citizen. Not in my book.

So to be clear, if the US military and/or the White House wants to order the execution of a particular scumbag overseas who is mean to us; even if he's not pointing a gun at us at that very moment, I really haven't got a problem with that. Dead terrorists do not fill me with feelings of pity, I'd love to see how high we can make the stacks of dead terrorist bodies.

However, when one is a US citizen, one is entitled to certain rights. Among these, we do not take away a citizen's life without Due Process. Due Process is not declaring him an enemy combatant and giving the green light to the CIA spooks to light him up from a drone. Due Process means a criminal charge, a warrant, and if captured alive, a trial.

That doesn't mean - and it never has - that he has to be taken alive to face trial. It means we go through our legal process to try to bring him to trial. If we kill him while trying to do that, oh well. The legal process was observed, toss his body in a dumpster, and get on with it.

Was A-A charged with any crime in the USA? No.

Was a warrant issued for his arrest? No.

Was he captured? Clearly no.

Was he killed resisting capture? Again, you can't surrender to a missile, so no.

And again, why do I care? He was a very bad person and I think we all agree to that. He did represent a threat to the USA indirectly, through his recruiting methods. He was our enemy and deserved death, yes. But as a US citizen, the rights he had are the same rights I have. If his rights could be ignored because it was convenient to do so, then so could mine. I've got a problem with that. What I have an even bigger problem with is that those who favor results over methods do not see the danger to our own civil rights. We conservatives know better than to trust our government; but in this case, we'll turn our heads and pretend that the government would NEVER use these new powers against US. No, never. Come on, we're smarter than that. Wake up.

 

[MJS]

Well, good points as usual Bill. So, in a nutshell, it all goes back to something I said earlier....that the main issue with all of this, is the way it was done. The same exact goal could've been reached, if they sent in a team of SEALs, just like with OBL, under the assumption of capture, when the real goal would be to take him ou, plain and simple. As far as anyone else would be concerned, it would've been a capture mission gone bad...."Well, we tried to do it by the book, he resisted, grabbed a gun, and our guys were forced to shoot." even if the majority of that was BS.

I have to wonder if anyone in the circle of folks that make the rules, gave a thought about the Due Process.

 

[Bill Mattocks]

Well, good points as usual Bill. So, in a nutshell, it all goes back to something I said earlier....that the main issue with all of this, is the way it was done. The same exact goal could've been reached, if they sent in a team of SEALs, just like with OBL, under the assumption of capture, when the real goal would be to take him ou, plain and simple. As far as anyone else would be concerned, it would've been a capture mission gone bad...."Well, we tried to do it by the book, he resisted, grabbed a gun, and our guys were forced to shoot." even if the majority of that was BS.

I have to wonder if anyone in the circle of folks that make the rules, gave a thought about the Due Process.

I think they did. But I see wheels within wheels here, I really do. I think that this was a power-grab for the President and all future presidents.

Let me put it this way. Say you're the President, and you want to increase your authority such that you can order the assassination of any US citizen at will, without criminal charges or a trial. On the surface, that seems like a pretty tall order. It's clearly illegal, right? What to do?

Well, let's do it incrementally. Start with the President's authority to order targeted killing. That has been unchallenged for a long time; Bush did it, and I'm sure presidents before him did it. It's just that none of them were citizens.

So we take legal extra-judicial targeted killing in wartime, which the President already has the unchallenged authority to do (I'm not even saying it's legal, only that he does it and no one challenges his right to do so), and we find someone really heinous who happens to be a US citizen but a complete scumbag terrorist. Ah, there's one, Al-Awlaki. Total dirtbag. No one will mourn his passing. He clearly needs to go (and again, I agree with that assessment.

So, the next step is to get the Justice Department on board. Issue a statement saying that as far as they know, the President can order the targeting killing of a US citizen engaged in enemy activity under certain circumstances. Make them as broad and sweeping as possible but use scary-sounding words like 'imminent danger' and 'immediate threat' and so on.

Then zap the dude. Declare victory. Wait to see if there is any fallout, and if so, how serious.

If it doesn't get you in hot water legally, you now have a nifty new power.

The next time it is applied, the circumstances may be a bit different. Maybe a tad more ambiguous in terms of the badness of the bad guy or the threat he or she represents.

Lather, rinse, repeat.

Eventually, nobody even blinks when a US citizen gets dusted by our own government without a criminal charge or trial or attempt at apprehension. Someday, we might even do it to a citizen inside the borders of our own country.

That's my theory anyway. I don't believe any of this was accidental. It plays out too nicely.

 

[oftheherd1]

...

But the word 'combatant' itself means one who fights. I am not confident of its application as 'urging others to fight'.

A good point. I doubt that we will ever know for sure if he went beyond talking to the air, or engaged in action with people to attack the US.

Not to quibble over technicalities, but in the US, rights are not exactly 'granted'. There's a reason why I bring this up. In most countries, rights are indeed 'granted'. In the US, our basic civil liberties are not granted to us, but forbidden to the federal government to infringe. It may seem as if that is a distinction without a difference, but there is a difference. Anything that is 'given' can be taken away. The assumption our Founders made and enshrined in the Constitution and subsequent Bill of Rights was that nothing and no one could take our rights away, they were given us by our Creator, whomever or whatever one imagines that to be. By forbidding the federal government (and by later extension, the states for most of the Bill of Rights), the Founders made it very difficult for the government to abrogate those rights.


...

There have been no court cases, no case law, no laws passed, not even an Executive Order, which states when a US citizen loses the right to Due Process. As stated above, those would be 'categorical' denials or limitations of civil liberties which citizens of the US enjoy. Instead, we have the 'opinion' of the Justice Department, which carries no legal weight in law, which alternately states (I have heard both from that snake Holder) that either A-A's 'Due Process' rights were observed (how that could be completely eludes me as I believe it must any sane person), or that Due Process did not apply to him because he was an active enemy combatant, engaged in activity which represented an immediate and existential threat to the entire nation. In other words, A-A had the power and was about to completely destroy our nation, so we had no other choice but to kill him in self-defense, just as if he had pointed a gun at a cop trying to arrest him. Sorry, not buying it.

The preamble to the Bill of Rights, without referring to "rights," acknowledges that there were fears of loss of rights. The first ten admendments often refer to rights (not previously identified in the constitution but now given and yes, the federal government not allowed (prohibitied) to abridge them except as noted in the amendments) that can't be taken away.

I generally agree with your second paragraph, but haven't had a chance to see if any of our law or international law we agree to, talks about extra-territory loss of any rights or presumtion of rights. And that remains my stance. If there is no lawful exception based on territoriality, then Obama has a real problem justifing that. And I agree that the current attempts such as saying he was afforded "due process" just don't float without some real unassailable justification.

I think they did. But I see wheels within wheels here, I really do. I think that this was a power-grab for the President and all future presidents.
...

That's my theory anyway. I don't believe any of this was accidental. It plays out too nicely.

I don't doubt that may have been part of the decision. Presidents are people, and many people have trouble with authority; whether the authority they are under, or the authority they have. It can be heady.

 

[MJS]

I think they did. But I see wheels within wheels here, I really do. I think that this was a power-grab for the President and all future presidents.

Let me put it this way. Say you're the President, and you want to increase your authority such that you can order the assassination of any US citizen at will, without criminal charges or a trial. On the surface, that seems like a pretty tall order. It's clearly illegal, right? What to do?

Well, let's do it incrementally. Start with the President's authority to order targeted killing. That has been unchallenged for a long time; Bush did it, and I'm sure presidents before him did it. It's just that none of them were citizens.

So we take legal extra-judicial targeted killing in wartime, which the President already has the unchallenged authority to do (I'm not even saying it's legal, only that he does it and no one challenges his right to do so), and we find someone really heinous who happens to be a US citizen but a complete scumbag terrorist. Ah, there's one, Al-Awlaki. Total dirtbag. No one will mourn his passing. He clearly needs to go (and again, I agree with that assessment.

So, the next step is to get the Justice Department on board. Issue a statement saying that as far as they know, the President can order the targeting killing of a US citizen engaged in enemy activity under certain circumstances. Make them as broad and sweeping as possible but use scary-sounding words like 'imminent danger' and 'immediate threat' and so on.

Then zap the dude. Declare victory. Wait to see if there is any fallout, and if so, how serious.

If it doesn't get you in hot water legally, you now have a nifty new power.

The next time it is applied, the circumstances may be a bit different. Maybe a tad more ambiguous in terms of the badness of the bad guy or the threat he or she represents.

Lather, rinse, repeat.

Eventually, nobody even blinks when a US citizen gets dusted by our own government without a criminal charge or trial or attempt at apprehension. Someday, we might even do it to a citizen inside the borders of our own country.

That's my theory anyway. I don't believe any of this was accidental. It plays out too nicely.

I'd say there probably is no fallout, because people probably aren't thinking about 'due process' but instead, just ridding the world of one more dirtbag terrorist, regardless of how major/minor his role may be.

 

[Bill Mattocks]

I'd say there probably is no fallout, because people probably aren't thinking about 'due process' but instead, just ridding the world of one more dirtbag terrorist, regardless of how major/minor his role may be.

And that, to me, supports my contention that this was just a step in a process. Now we have precedent. Eventually, we'll be completely inured to it. Just another day at the office.