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Assassination And War

By Big Tent Democrat

The issue of the "kill or capture" order issued by President Obama against Al-Awlaki (believed to be in Yemen) has spurred significant debate. I think it is a very difficult issue as a policy question, but what it boils down to as a legal question is this - what is the battlefield when it comes to terrorism? Glenn Greenwald writes:

I actually can't believe that there is even a "debate" over whether an American President -- without a shred of due process or oversight -- has the power to compile hit lists of American citizens whom he orders the CIA to kill far away from any battlefield.

(Emphasis supplied.) While using the appropriate word in this case - "assassination" - is intended to shock, and it definitely jars, the REAL issue is what is the battlefield? Glenn is just plain wrong in my view when he writes "it's almost impossible to ignore how similar are the rhetoric and rationale between (a) Bush supporters who justified presidential torture and (b) Obama supporters who now justify presidential due-process-free assassinations." Let's be clear - torture is a war crime, illegal under US law, is ineffective and is simply indefensible morally and legally. Glenn's "b" is what happens in war. Now you can argue that war is like torture (remember that torture is a violation of the Laws of War) and to even speak of Laws of War as an oxymoron, but it is simply wrong of Glenn to act as if they are the same. More . . .

This is simply a much tougher issue than Glenn is crediting. Torture is not. Torture is clearly illegal, under US law, international law and the Laws of War.

Whether you believe President Obama should issue "kill or capture" orders in areas that are not traditional battlefields is a worthy issue of discussion. What it is not is illegal.

In responding to Andrew Sullivan, Daniel Larison writes:

When the U.S. government targets Al Qaeda and Taliban leaders for execution by drone strike, these are sometimes called “decapitation” strikes, which isn’t quite the same as calling it an assassination. Nonetheless, a decapitation strike achieves the purpose of assassination, which is typically to eliminate a high political/military leader to try to throw a government or army or organization into chaos.

I do not shy away from the word. War is as ugly as assassinations. Indeed, more so. The real issue is this, from Sullivan:

Glenn asks:

Are we "at war" on the entire planet -- the centerpiece of the Bush/Cheney assertion of radical powers -- or are there physical limits to where the President's war powers apply, i.e., where the "battlefield" is? If we're "at war" anywhere and everywhere Terrorists are found, does that apply to U.S. soil?

No it doesn't.

And it can't. In Hamdi, the Supreme Court said:

We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.

Assassinations of citizens in the United States is unconstitutional. Glenn makes many fine points on the policy dilemma this issue raises, but I think he overreaches when he compares the issue to the question of torture.

War is hell, and discussing war produces a hellacious debate. Here, to my mind, the main issue is definition of the battlefield where the President has the power to order belligerence against nations, entities and individuals. It is a tough tough issue as policy. Less so as law. Let's discuss the policy. For a similar disagreement I had with Glenn, see this post on enemy combatants and preventive detention.

I am positive that Jeralyn disagrees with me on this issue so I am definitely speaking for me only.

Full post as published by TalkLeft on October 04, 2010 (boomark / email).