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Title: ACLU objects to killing of al Qaeda leader
Source: The Hill
URL Source: http://thehill.com/blogs/blog-brief ... -to-killing-of-al-qaeda-leader
Published: Sep 30, 2011
Author: Erik Wasson
Post Date: 2011-09-30 12:40:46 by Sebastian
Keywords: None
Views: 126058
Comments: 179

The American Civil Liberties Union has objected to the killing of the U.S.-born Muslim cleric Anwar al-Awlaki in Yemen by U.S. forces.

Awlaki was a U.S. citizen, and the ACLU said President Obama does not have the authority to kill an American without due process of law. The White House confirmed the cleric was killed by a U.S. drone attack.

“The targeted killing program violates both U.S. and international law,” ACLU Deputy Legal Director Jameel Jaffer said. “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts.”

The ACLU said the government only has the authority to kill Americans when a threat is imminent.

“It is a mistake to invest the president — any president — with the unreviewable power to kill any American whom he deems to present a threat to the country,” Jaffer said.

Ben Wizner, litigation director of the ACLU’s National Security Project, added:

“If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state.”

Obama’s actions also garnered criticism from GOP presidential candidate Rep. Ron Paul (Texas).

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Begin Trace Mode for Comment # 26.

#4. To: Sebastian (#0) (Edited)

President Obama does not have the authority to kill an American without due process of law.

It's called first degree murder.

I know that a lot of people are out thumping their chests today, but without any evidence to the contrary, the only thing we know for sure is that al-Awlaki was posting political opinions on a website.

Posting political opinions on a web site is not against the law. Remember, that is what we do here on LF.

Also remember, that the very first thing Obama's Department of Homeland Security did was issue a report about homegrown, "right-wing extremists".

Tie these two together, along with Obama's constant demonetization of his opponents, and it points to a very bad place.

jwpegler  posted on  2011-09-30   13:30:44 ET  Reply   Untrace   Trace   Private Reply  


#5. To: jwpegler (#4)

It's called first degree murder.

Nope, it's called war. Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

See: http://volokh.com/2011/09/30/anwar-al-aulaqi-apparently-killed-by-drone-in-yemen/

and:

http://www.lawfareblog.com/2011/09/al-awlaki-as-an-operational-leader-located-in-a-place-where-capture-was-not-possible/

go65  posted on  2011-09-30   15:09:03 ET  Reply   Untrace   Trace   Private Reply  


#9. To: go65, jwpegler (#5) (Edited)

Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

Can you please identify the U.S. law to which you refer?

nolu chan  posted on  2011-09-30   20:25:51 ET  Reply   Untrace   Trace   Private Reply  


#22. To: nolu chan (#9)

Can you please identify the U.S. law to which you refer?

I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......"

That would be an opinion of the court in case law, would it not? Does that mean the political question doctrine means the Executive Branch can get away with killing a US citizen without due process and not be held accountable except by the ballot?

Sebastian  posted on  2011-10-01   21:27:22 ET  Reply   Untrace   Trace   Private Reply  


#24. To: Sebastian, go65 (#22)

[go65 #5] Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

[Sebastien #22I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......"

That would be an opinion of the court in case law, would it not?

El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)

I believe el-Shifa would not be an opinion of the court in case law, at least not in the sense of deciding anything about the issue other than that the court could not decide it or render any opinion on it, at least not in the sense you appear to convey.

It is the same as the al-Aulaqi case. The court stated it did not have jurisdiction to hear the case. It's only "opinion" was that it was asked to answer a non-justiciable political question. The court lacked subject matter jurisdiction. The case was dismissed. The court did not decide the issue of whether the President has the authority to atttack enemy combatants outside the U.S., regardless of their citizenship/country of origin. It decided that the Plaintiff's question was not proper for the court to decide.

Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

I would have to question this claim of go65 on a few points.

I am unaware of current U.S. law that affirmatively grants such authority as that claimed. I do not know what law was being considered.

The use of the term enemy combatants appears imprecise. I believe the more appropriate term would be unlawful combatants. In this context, I would question whether whether al-Aulaqi fits the description of any sort of combatant.

The CIA action appears to be the targeted assassination of an American citizen. Assassination appears to be prohibited by EO12333 of 1981 (Reagan), Section 2.11.

- - -

Doc 1 - Al-Aulaqi v Obama, DCDC 10-1469, COMPLAINT Re Targeted Killing

- - -

Al-Aulaqi v Obama, USDC DCDC 1-10-cv-01469, Doc 31, OPINION (07dec2010)

At 4: "Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum."

The reference to a non-judicial forum is to a Legislative forum, i.e., Congress.

= = = = =

el-Shifa OPINION of the Court at 6-7:

The district court granted the government’s motion to dismiss the complaint for lack of subject-matter jurisdiction, see FED. R. CIV. P. 12(b)(1), concluding that sovereign immunity barred all of the plaintiffs’ claims. See El-Shifa, 402 F. Supp. 2d at 270–73. The court also noted that the complaint “likely present[ed] a nonjusticiable political question.” Id. at 276. The plaintiffs filed a motion to alter the judgment with respect to their claims for equitable relief, which the district court denied. See El-Shifa Pharm. Indus. Co. v. United States, No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007). The plaintiffs appealed, challenging only the dismissal of their claims alleging a violation of the law of nations and defamation. The plaintiffs have abandoned any request for monetary relief, but still seek a declaration that the government’s failure to compensate them for the destruction of the plant violated customary international law, a declaration that statements government officials made about them were defamatory, and an injunction requiring the government to retract those statements. A divided panel of this court affirmed the district court, holding that these claims are barred by the political question doctrine. See El-Shifa Pharm. Indus. Co. v. United States, 559 F.3d 578 (D.C. Cir. 2009). We vacated the panel’s judgment and ordered rehearing en banc. See El-Shifa Pharm. Indus. Co. v. United States, 330 F. App’x 200 (D.C. Cir. 2009).

el-Shifa OPINION of the Court at 27:

Our concurring colleagues charge the court with “sub silentio expand[ing] executive power.” Concurring Op. of Judge Ginsburg at 3 (quoting Concurring Op. of Judge Kavanaugh at 11). To the contrary, it is they who would work a sub silentio expansion. By asserting the authority to decide questions the Constitution reserves to Congress and the Executive, some would expand judicial power at the expense of the democratically elected branches. And by stretching beyond all precedent the limited category of claims so frivolous as not to involve a federal question, all would permit courts to decide the merits of disputes under the guise of a jurisdictional holding while sidestepping obstacles that are truly jurisdictional.

Straightforward application of our precedent makes clear that the plaintiffs face such an obstacle here. Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of retaliatory military action taken by the United States. Despite their efforts to characterize the case differently, that is just what the plaintiffs have asked us to do. The district court’s dismissal of their claims is

Affirmed.

Docket Report - el-Shifa v USA, USCA DC Cir 07-1514, Docketed 31may2007 Termed 08jun2010

- - -

el-Shifa v USA, USCA DC Cir 07-5174, OPINION (8jun2010) (political question)

- - -

Here are some documents that touch on the topic.

  • Geneva Convention Relative to the Treatment of Prisoners of War

  • Military Commissions Act of 2006

  • Authorization for Use of Military Force (AUMF) of 2001

  • Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13nov2001) President GW Bush

  • The WAR POWERS Resolution of 1973

  • EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008)

- - -

Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva Convention III)

- - -

Military Commissions Act of 2006, S3930

- - -

Authorization for Use of Military Force (AUMF), 115 Stat 224; PL 107-40; SJ Res 18sep2001

- - -

Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13n...

- - -

The WAR POWERS Resolution of 1973 - Text and Records From Congress

- - -

EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008)

Page 14, paragraph 2.11:

2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.

- - -

nolu chan  posted on  2011-10-04   21:05:48 ET  Reply   Untrace   Trace   Private Reply  


#25. To: nolu chan (#24)

The use of the term enemy combatants appears imprecise. I believe the more appropriate term would be unlawful combatants. In this context, I would question whether whether al-Aulaqi fits the description of any sort of combatant.

How about unlawful enemy combatant?

certainly fits the bill..especially with his fingerprints on the diaper bomb.

I also question Al-Aulaqi's right to claim citizenship in the United States as well as the legal standing for his father to bring the lawsuit.

Thunderbird  posted on  2011-10-04   21:29:03 ET  Reply   Untrace   Trace   Private Reply  


#26. To: Thunderbird (#25)

How about unlawful enemy combatant?

certainly fits the bill..especially with his fingerprints on the diaper bomb.

I also question Al-Aulaqi's right to claim citizenship in the United States as well as the legal standing for his father to bring the lawsuit.


certainly fits the bill..especially with his fingerprints on the diaper bomb.

I believe that was al-Asiri, not al-Aulaqi.

http://www.libertysflame.com/cgi-bin/readart.cgi?ArtNum=24576&Disp=1

Ibrahim al-Asiri is the bomb-maker linked to the bomb hidden in the underwear of a Nigerian man accused of trying to blow up a plane over Detroit on Christmas Day 2009.

The FBI pulled al-Asiri's fingerprint off that bomb. Authorities also believe he built the bombs that al Qaeda slipped into printers and shipped to the U.S. last year in a nearly catastrophic attack.

I also question Al-Aulaqi's right to claim citizenship in the United States as well as the legal standing for his father to bring the lawsuit.

As far as I know al-Aulaqi was born in the USA, making him a natural born citizen. His citizenship does not appear to be contestable. Dual citizenship does nothing to deprive one of U.S. citizenship.

His father was found to lack standing to bring the lawsuit. The subject matter has also been judicially determined to be a non-judicial political question (generally, whether a President has the authority under a claim of national security to assign someone to a kill list, to be killed in the absence of any legal process.) The Executive has claimed the authority. The Judiciary has punted to the Legislature. The Legislature has played see no evil, hear no evil, do nothing. The Executive can continue to do as it pleases as long as neither of the other branches acts on the issue.

How about unlawful enemy combatant?

Unlawful combatant requires foremost that one be a combatant.

I fail to see how al-Aulaqi could be a lawful combatant, unlawful combatant, unlawful enemy combatant, or any other invention of combatant. al-Aulaqi was neither indicted nor charged, much less convicted of anything. He gave speeches, but I don't believe talking rises to the level of military combat. I am unaware of al-Aulaqi having engaged in any combat.

We killed both a Yemini and a U.S. citizen, in Yemen. It was certainly an international act. The claim of his being a combatant is further diminished as any sort of defense or justification when the kill action is attributed not to our military, but to the CIA.

The following is from an international court and addresses how the matter of POW or protected status is seen by the international community.

http://www.icty.org/x/cases/mucic/tjug/en/cel-tj981116e.pdf

UNITED NATIONS, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Case No.: IT-96-21-T, 16 November 1998

See Delalic et al. (I.T-96-21) (Celebici) 16 November 1998, Part III B, Applicable law, pp 97-111, para 236-277, quoted below para 265-277, footnotes omitted.

265. Without yet entering the discussion of whether or not their detention was unlawful, it is clear that the victims of the acts alleged in the Indictment were arrested and detained mainly on the basis of their Serb identity. As such, and insofar as they were not protected by any of the other Geneva Conventions, they must be considered to have been “protected persons” within the meaning of the Fourth Geneva Convention, as they were clearly regarded by the Bosnian authorities as belonging to the opposing party in an armed conflict and as posing a threat to the Bosnian State.

266. This interpretation of the Convention is fully in accordance with the development of the human rights doctrine which has been increasing in force since the middle of this century. It would be incongruous with the whole concept of human rights, which protect individuals from the excesses of their own governments, to rigidly apply the nationality requirement of article 4, that was apparently inserted to prevent interference in a State’s relations with its own nationals. Furthermore, the nature of the international armed conflict in Bosnia and Herzegovina reflects the complexity of many modern conflicts and not, perhaps, the paradigm envisaged in 1949. In order to retain the relevance and effectiveness of the norms of the Geneva Conventions, it is necessary to adopt the approach here taken. As was recently stated by Meron,

[i]n interpreting the law, our goal should be to avoid paralyzing the legal process as much as possible and, in the case of humanitarian conventions, to enable them to serve their protective goals.

(ii) Were the Victims Prisoners of War?

267. Article 4(A) of the Third Geneva Convention sets rather stringent requirements for the achievement of prisoner of war status. Once again, this provision was drafted in light of the experience of the Second World War and reflects the conception of an international armed conflict current at that time. Thus, the various categories of persons who may be considered prisoners of war are narrowly framed.

268. In the present case, it does not appear to be contended that the victims of the acts alleged were members of the regular armed forces of one of the parties to the conflict, as defined in subparagraph 1 of the article. Neither, clearly, are sub-paragraphs 3, 4 or 5 applicable. Attention must, therefore, be focused on whether they were members of militias or volunteer corps belonging to a party which: (a) were commanded by a person responsible for his subordinates; (b) had a fixed distinctive sign recognisable at a distance; (c) carried arms openly; and (d) conducted their operations in accordance with the laws and customs of war. Alternatively, they could have constituted a levée en masse, that is, being inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously took up arms to resist the invading forces, without having had time to form themselves into regular armed units, and at all times they carried arms openly and respected the laws and customs of war.

269. The Prosecution seeks to invoke the provisions of Additional Protocol I to interpret and clarify those of article 4(A)(2) and wishes to take a liberal approach to the detailed requirements that the sub-paragraph contains. Even should this be accepted, and despite the discussion above of the need to take a broad and flexible approach to the interpretation of the Geneva Conventions, the Trial Chamber finds it difficult, on the evidence presented to it, to conclude that any of the victims of the acts alleged in the Indictment satisfied these requirements. While it is apparent that some of the persons detained in the ^elebi}i prison-camp had been in possession of weapons and may be considered to have participated to some degree in ‘hostilities’, this is not sufficient to render them entitled to prisoner of war status. There was clearly a Military Investigating Commission established in Konjic, tasked with categorising the ^elebi}i detainees, but this can be regarded as related to the question of exactly what activities each detainee had been engaged in prior to arrest and whether they posed a particular threat to the security of the Bosnian authorities. Having reached this conclusion, it is not even necessary to discuss the issue of whether the Bosnian Serbs detained in ^elebi}i “belonged” to the forces of one of the parties to the conflict.

270. Similarly, the Trial Chamber is not convinced that the Bosnian Serb detainees constituted a levée en masse. This concept refers to a situation where territory has not yet been occupied, but is being invaded by an external force, and the local inhabitants of areas in the line of this invasion take up arms to resist and defend their homes. It is difficult to fit the circumstances of the present case, as described in Section II above, into this categorisation. The authorities in the Konjic municipality were clearly not an invading force from which the residents of certain towns and villages were compelled to resist and defend themselves. In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.

271. It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;

[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.

272. This position is confirmed by article 50 of Additional Protocol I which regards as civilians all persons who are not combatants as defined in article 4(A) (1), (2), (3) and (6) of the Third Geneva Convention, and article 43 of the Protocol itself.

273. The Prosecution has further argued that article 5 of the Third Geneva Convention required that, where there was some doubt about the status of the ^elebi}i detainees, they had to be granted the protections of the Convention until that status was determined by a competent tribunal. On this basis, they were “protected persons” and subject to the grave breaches provisions of the Third Convention. While there may, on the basis of this article, have been a duty upon the Bosnian forces controlling the ^elebi}i prison-camp to treat some of the detainees as protected by the Third Geneva Convention until their status was properly determined and thus treat them with appropriate humanity, the Trial Chamber has found that they were not, in fact, prisoners of war. They were, instead, all protected civilians under the Fourth Geneva Convention and the Trial Chamber thus bases its consideration of the existence of “grave breaches of the Geneva Conventions” on this latter Convention.

(c) Findings

274. On the basis of the above discussion, the Trial Chamber concludes that all of the victims of the acts alleged in the Indictment were “persons protected” by the Fourth Geneva Convention of 1949. For the purposes of the application of Article 2 of the Statute, these victims must be regarded as having been in the hands of a party to the conflict of which they were not nationals, being Bosnian Serbs detained during an international armed conflict by a party to that conflict, the State of Bosnia and Herzegovina.

275. This finding is strengthened by the Trial Chamber’s fundamental conviction that the Security Council, in persistently condemning the widespread violations of international humanitarian law committed throughout the conflict in Bosnia and Herzegovina and, indeed, in establishing the International Tribunal to prosecute and punish such violations, did not consider that the protection of the whole corpus of international humanitarian law could be denied to particular groups of individuals on the basis of the provisions of domestic citizenship legislation. The International Tribunal must, therefore, take a broad and principled approach to the application of the basic norms of international humanitarian law, norms which are enunciated in the four Geneva Conventions. In particular, all of those individuals who took no active part in hostilities and yet found themselves engulfed in the horror and violence of war should not be denied the protection of the Fourth Geneva Convention, which constitutes the very basis of the law concerned with such persons.

276. The Trial Chamber does not consider it necessary to discuss at length in the present context the development of the law of the Third Geneva Convention relating to prisoners of war, for even if none of the victims can be viewed as prisoners of war, there is no gap between the Geneva Conventions and they must, therefore, be considered protected civilians, along with the other detainees. This finding does not prejudice the later discussion of whether the authorities of Bosnia and Herzegovina were legitimately entitled to detain all of these civilians.

277. Having decided that Article 2 of the Statute is applicable to the facts of the present case, the Trial Chamber now turns its attention to the application of Article 3, concerning violations of the laws or customs of war.

Military Commissions Act of 2006

‘‘§ 948a. Definitions

‘‘In this chapter:

‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful enemy combatant’ means—

‘‘(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

‘‘(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

The obvious legal problem with this is that the definition is pure bullcrap. According to this, an unlawful enemy combatant is whoever some competent tribunal says it is.

nolu chan  posted on  2011-10-05   1:12:07 ET  Reply   Untrace   Trace   Private Reply  


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