I guess the theory is that if we're targeting enemy fighters, planners, leaders, supporters, etc., in, say, Yemen, and one of them happens to be a U.S. citizen (USC), well, that's tough darts for him; he shouldn't have been with an enemy bunch in the first place; it's as though the USC has waived his rights to any due process protection he might've had in case he'd remained in the U.S.
Works for me.
Today, 10-15-2011, it is reported that we killed nine more al-Qaeda of the Arabian Peninsula, by drone in Yemen, including the USC son of Anwar al-Awlaki, killed recently, see below.
Declaring war on the U.S. is risky business, as Japan and Germany learned to their detriment.
We keep going until we win, circumstances permitting; see Korea and Vietnam.
Iraq and Afghanistan remain to be characterized in the W/L columns.
***
One of the Conlawprofs posted a query as to the meaning, if any, of the term 'extra-legal' in reference to Supreme Court cases. In responding, I ignored the limitation, considering it meaningless, as follows:
The term 'extra-legal' certainly seems to have an element of mystery to it, like someone citing an 'unwritten law' to justify a proposition, which I found, in law school when I was wrestling with the all-too-many written ones, to be more than a little disconcerting.
Then I came across the notion that in Texas it was an unwritten law, allegedly, that a man who found his wife in bed with another man was justified in shooting him. Dunno about her; she'd better get out of the way, I suppose. Maybe she was included, and he [the shooter] protected, as collaterall damage.
Then of course, Tocqueville famously said something to the effect that in America all social problems eventually turn into legal problems decided by the courts, or the Court.
And finally, there's something that might well be called the Cheney Doctrine, that is, the use of 'enhanced interrogation techniques' that while most resembling torture, do not violate Constitutional dictates against coerced or involuntary admissions and confessions. Nor do the gasping statements violate, by some miracle, the Geneva Conventions, a set of treaties to which we are party. [He was working for Bush-43, another of the Texas-presidents, after LBJ and Bush-41, it may well be noted.]
This must be based on the Sacrament of Manifest Destiny, our underlying, albeit extra-legal constitutional doctrine which holds that we in the holy mother church of the USA can take your land and don't have to thank or pay you for it, the Fifth Amendment notwithstanding, because God is on our side. We could emboss this legend, not to say myth, on our military belt buckles, as translated from the original German, of course.
So, this term 'extra-legal,' what is it?
A euphemism for "illegal as hell?"
Or "Shoot first, come up with the missing legal doctrine later," in order to paper over the criminality?"
Perhaps this is the difficulty posed by the recent Anwar al-Awlaki case, where we loose a Hellfire missile on a known al Qaeda preacher in Yemen, who inspires others to attack us, burning him to a crisp. Well, al Qaeda declared war on us and has committed so many atrocities starting with 9-11, so no problem, right? Making war, aiding and abetting, treason, you name it. Good news.
BUT it turns out that this enemy is a U.S. citizen.
Does this make any difference?
Should he have been arrested, prosecuted and then executed in a more civilized, less sudden manner, such as by gentle lethal injection while strapped to a gurney in the confines of a prison with witnesses inside and demonstrators and news cameras outside?
Or is this an example of an extra-legal take-out awaiting the necessary blessing of legal rubric to make it nice and legal-like? No doubt it will serve as the precedent for future Hellfire missile attacks. Don't look for it in the case reports because, well, there was no appeal... Perhaps on each Hellfire missile we could print a citation: See U.S. v. Anwar al-Awlaki.
Lincoln's observation comes to mind regarding when he justified the questionable military detention of southern sympathizer Clement Vallandigham w/o benefit of habeas corpus for speaking out against the war and urging Northern soldiers to desert. Lincoln reasoned that he was required on a constant basis to review the military death warrants of young, frightened, deserting soldiers with whom he empathized, feeling that he'd be tempted to do the same were he in their shoes.
"Am I to execute the poor soldier boy while allowing the person who incited him to go free?" was the idea, if not the actual quote (vagaries of memory, again).
Suppose al-Awlaki had been located traveling from NY to DC; okay to unleash the Hellfire, say around Baltimore? Camden? Ft. Lee?
Forget the collateral damage. If a known terrorist is foolish enough to surround himself with family, friends, and other terrorists, the Hellfire Doctrine permits us to send these unnamed others along for the eternal ride to glory as well. A bit extra-legal perhaps, but coming up with justifying legal doctrine is our specialty. Let Allah sort them out, that sort of thing.
Then it's no longer extra-legal is it?
That's the beauty of the Extra Legal Doctrine; it's only temporary, meaning illegal, one supposes, until we fix it, nunc pro illegal tunc.
It has possibilities; I see it sticking around because it's so useful between here and there.
rs
***
On Oct 4, 2011, at 10:56 AM, Mark S K. wrote:
Sean:
Thanks for your note. My query deliberately tried to leave the definition of “extra-legal” open for folks to fill in with their own notions since the term is capable of multiple meanings. Part of what I’m trying to figure out is what to do with that term, and what cases it might apply to. I appreciate your suggestions. Best, Mark
From: Sean W.
... I think it would be beneficial to ask at the outset what you mean by "extra legal." You'll only end up with theories as to what that is, in the context that you ask the question. A better question, it seems, would be to simply ask this: what decisions most egregiously breach the things the Constitution could be TAKEN to say, without a sufficient cultural or political warrant (explanation). In this sense, your target is not a fixed one. What constitutes "legal" are all those potential arrangements that could be had for constitutional text. Another question to ask which is much better is: among the chosen arrangements today that are "legal," how could they be much much different (and better), yet still remain "legal." This asks, in essence, how could we more creatively arrange the constitution to best suit American culture?
From: Mark S K
Subject: RE: Article Request, and Extra-legal Cases
I have two questions for the list. Feel free to reply privately.
1.I recently saw an SSRN paper mentioned that dealt with the fact that the House of Representatives now requires its members to assert the constitutional foundations for any legislation being introduced. I believe the paper assesses the legal significance of this House rule. Does anyone know the SSRN or other cite for this paper?
2.Which U.S. Supreme Court cases, if any, do folks think should or could be considered “extra-legal” in some sense? I don’t mean cases that people really dislike, though there may be some overlap. I also would prefer to stay away from cases that have been overturned by the Court itself as that seems too easy. You can define that term as you wish otherwise. (Perhaps one answer some folks would have is no cases, as the Court’s decisions can’t be “extra-legal.”) Korematsu occurred to me as a possibility (though I can see the counter-arguments) but I would love to hear what others think.
Thanks. Mark
DEATH WARRANT BY LEGAL MEMO
NYT is reporting on the U.S. government memo authorizing the killing of the enemy leader, Anwar al-Awlaki:
October 8, 2011
Secret U.S. Memo Made Legal Case to Kill a Citizen
WASHINGTON — 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 Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.
But the document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.
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.
The administration did not respond to requests for comment on this article.
The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.
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.
The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.
There remained, however, the question of whether — when the target is known to be a citizen — it was permissible to kill him if capturing him instead were a feasible way of suppressing the threat.
Killed in the strike alongside Mr. Awlaki was another American citizen, Samir Khan, who had produced a magazine for Al Qaeda in the Arabian Peninsula promoting terrorism. He was apparently not on the targeting list, making his death collateral damage. His family has issued a statement citing the Fifth Amendment and asking whether it was necessary for the government to have “assassinated two of its citizens.”
“Was this style of execution the only solution?” the Khan family asked in its statement. “Why couldn’t there have been a capture and trial?”
Last month, President Obama’s top counterterrorism adviser, John O. Brennan, delivered a speech in which he strongly denied the accusation that the administration had sometimes chosen to kill militants when capturing them was possible, saying the policy preference is to interrogate them for intelligence.
The memorandum is said to declare that in the case of a citizen, it is legally required to capture the militant if feasible — raising a question: was capturing Mr. Awlaki in fact feasible?
It is possible that officials decided last month that it was not feasible to attempt to capture him because of factors like the risk it could pose to American commandos and the diplomatic problems that could arise from putting ground forces on Yemeni soil. Still, the raid on Osama bin Laden’s compound in Pakistan demonstrates that officials have deemed such operations feasible at times.
Last year, Yemeni commandos surrounded a village in which Mr. Awlaki was believed to be hiding, but he managed to slip away.
The administration had already expressed in public some of the arguments about issues of international law addressed by the memo, in a speech delivered in March 2010 by Harold Hongju Koh, the top State Department lawyer.
The memorandum examined whether it was relevant that Mr. Awlaki was in Yemen, far from Afghanistan. It concluded that Mr. Awlaki’s geographical distance from the so-called hot battlefield did not preclude him from the armed conflict; given his presumed circumstances, the United States still had a right to use force to defend itself against him.
As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.
The memorandum did assert that other limitations on the use of force under the laws of war — like avoiding the use of disproportionate force that would increase the possibility of civilian deaths — would constrain any operation against Mr. Awlaki.
That apparently constrained the attack when it finally came. Details about Mr. Awlaki’s location surfaced about a month ago, American officials have said, but his hunters delayed the strike until he left a village and was on a road away from populated areas.
