Legal Commentary

Laws Of War And Citizenship Stripping

By Big Tent Democrat

How is "assasination" different than citizenship stripping?

Citing with approval news reports that President Obama has signed a secret order authorizing the targeted killing of a radical Yemeni-American cleric, Anwar Al-Awlaki, Mr. Lieberman argued that if that policy was legal — and he said he believed it was — then stripping people of citizenship for joining terrorist organizations should also be acceptable.

This echoes Glenn Greenwald:

Outrage over Lieberman's citizen-stripping bill is odd in light of Obama's assassination program: which would you rather have done to you?

I think this argument features a strain of divergence I have with Greenwald (a good faith disagreement) and people like Joe Lieberman. You'll also see it in my discussions of preventive detention. The Laws of War are simply different from criminal law. Thus, killing an enemy combatant or detaining an enemy combatant is a different matter than incarcerating (or even executing) an individual for criminal actions. More . . .

I posit that there is little doubt that the President, as Commander in Chief of the Armed Forces, can order military action against belligerent forces. This does not change when the belligerent forces include American citizens.

In discussing the issue of preventive detention, I wrote:

Glenn[Greenwald] portrays the power to indefinitely detain "alleged combatants" as something new. Clearly in a theater of war it is not. (Glenn's objection appears to be more directed at the scope of the "theater of war." And yet, the reality is that terrorists do operate all over the globe. In effect, there is an expanded "theater of war.) We used to call such detainees prisoners of war, and the Geneva Conventions applied to such detentions.

To me that is the key point to answering Glenn's question "when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it[?]" I opposed it BECAUSE the Bush Administration insisted that the Geneva Conventions did NOT apply to the detentions.

I would argue that application of the Laws of War are the proper method of analysis of President Obama's apparent order to attack Anwar Al Alwaki, a US citizen. To me the question is are Obama's directives consonant with the Laws of War.

John Walker Lindh was an American citizen fighting with the Taliban. He was, IIRC, injured by US forces. Obviously this had no due process implications. But what if there was an order specifically targetting Lindh? Would this violate due process? In my opinion, no.

The more interesting question is, and frankly I have not researched the answer, is it proper under the Laws of War to target enemy combatants for assassination, as opposed to a military force for defeat? I will research this question.

Speaking for me only

Full post as published by TalkLeft on May 07, 2010 (boomark / email).