The Rules - Engaging HVTs & OBL

[Fuchs]

@Jmm99:

I reat between teh lines that Ackerman was concerned about
* is this working as intended?
and
* can we be satisfied with how it's working?
and came to the conclusion no/no.

It's not merely a legal thing (courts in wartime and legal counsels of an administration aren't even close to perfect anyway), but a thing of organising how the state/government is being run.

To accept that the chief of the executive branch delegates the power to kill dissidents to some mid-level bureaucrats is not an idea that comforts him.


It's in tradition of the expansion/assuming of executive powers that was very visible during Nixon and GWB administrations, even during the Clinton administration, and that does not seem to be a popular tradition.
In other words; it's the road to authoritarian governance.

[Bill Moore]

Posted by Fuchs,

To accept that the chief of the executive branch delegates the power to kill dissidents to some mid-level bureaucrats is not an idea that comforts him.

On this point (not the outcome) I tend to agree with you, and concur we need a better system. I think a reasonable legal process would have came to the same conclusion, but that may not always be the case. Where those who are debating this kill from a civil rights perspective are challenged is the logic of killing this particular individual is hard to argue. On the other hand, the process does need to be looked at.

It's in tradition of the expansion/assuming of executive powers that was very visible during Nixon and GWB administrations, even during the Clinton administration, and that does not seem to be a popular tradition.
In other words; it's the road to authoritarian governance.

A review of our history will probably verify that it was our left leaning administrations that were more prone to use covert operations than our right leaning administrations. Those that leaned towards the right (with Nixon being an exception) generally have much more respect for the Constitution.

Another reason executive power is expanding in my opinion is that the world has and is changing in ways that allows an adversary to conduct an attack on us with little to no warning, which means we need a rapid response and the person best positioned to make those decisions is the President. OIF didn't require a rapid response, and it was debated in Congress, it was legal by our standards. Our involvement in Libya as I understand it is questionable because it didn't go through that process. Maybe the President felt compelled to act quickly based on the humanitarian situation, but the scope of the mission expanded and before it did it could have been debated and voted on in Congress. Looking at notional cases, a nation or non-state actor launches a missile at the U.S., we suffer a major terrorist attack and another one is pending, North Korea invades South Korea, etc., all of these will require rapid "initial" responses, and the President has these powers. Rightfully so in my book.

[jmm99]

1. The Executive and Legislative Branches have jurisdiction over Jus ad Bellum (going to war - the text gives Congress the edge here, if it elects to exercise its rights) and Jus in Bello (behaving in war - the text give the President the edge here as Commander in Chief).

2. The Judicial Branch doesn't generally have jurisdiction in these military matters - except where that Branch is "still open for business". Ex Parte Milligan and Ex Parte Quirin.

3. Executive Branch power is at its weakest (allowing judicial intervention) in the domestic arena, esp. where Congress has not endorsed the Executive's actions. Steel Seizure Cases.

4. The Constitution does not deal explicitly with foreign interventions. My BLUF: the more "interventionistic" an administration is, the more it tends to a greater degree of "authoritarianism" (which can be inchoate - the powers are not exercised).

5. The Chief Executive cannot (not enough time to) get involved in the details of every Executive Branch action. So, the planning and decision-making process has to be delegated. The Constitution does not explicitly detail the delegation process.

My BLUF: Since we went to a military policy (and rules) to kill Awlaki, then the military targeting process should have been used. Since Awlaki was a mid-level functionary, what's wrong with mid-level functionaries deciding to pull the trigger ?

As far as I am concerned, when the CIA functions as a military arm, it should be considered military (a stroke of the "Executive Pen") - no matter who takes the lead in Titles 10-50 or Titles 50-10 operations.

----------------------------------------------
Why can't the AQ boys come under GC III -PWs ?

My BLUF: Because their group has not availed itself of the 1949 Common Article 2 (para 3) option to accept and apply the 1949 GCs. In most places where the US conducts warfare (even if not of an international character), 1949 GC IV will apply to true civilians via 1949 Common Article 2 (para 2):

1949 CA2, para 3:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

1949 CA2, para 2:

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance

The Commentary to 1949 CA2, para 2:

This new provision is particularly pertinent for the protection of civilian persons under the Fourth Convention, but its inclusion is none the less appropriate in regard to prisoners of war, since, even in the absence of resistance, the Occupying Power might be tempted to intern all or part of the armed forces of the adversary in the interests of its future security. For that reason it was necessary to ensure that such internees would be treated as prisoners of war throughout their detention.

and a JMM Comment to the rule and commentary:

Paragraph 2 clearly applied to Afghanistan in 2001 (which never lost its status as a High Contracting Party, even under the US view that it had no recognized government). Who were the Occupying Powers ? The Taliban and Northern Alliance fit that definition. The US did not since it did not attempt to occupy the country in any formal legal sense (Iraq was a different matter, with US military and then civilian provisional governance). However, since the US was and is a High Signatory Party, it is arguable that it had an obligation under GC IV toward civilians in the areas where it had actual control. The Occupying Powers (Taliban and Northern Alliance) had the same GC obligations toward civilians, which neither observed very well.

The AQ, in addition to not meeting 1949 CA 2, para 3, did not meet the tests of 1949 GC III - PWs (Art. 4 et seq). None of the Gitmo detainees (except Hamdan) even claimed 1949 GC III PW status. All claimed 1949 GC IV status as privileged civilians (some successfully, some not).

Regards

Mike

[Bill Moore]

Mike,

My comment on improving the process only pertains to the rare case when we target a U.S. citizen, I'm not advocating change for targeting non-U.S. citizens.

[jmm99]

so far as killing is concerned, between a non-US citizen combatant AQ member; and a US citizen combatant AQ member who has expatriated himself. Both are members of a defined hostile armed force on foreign soil; and, given PID, can be killed anytime, anyplace without offer of surrender or any other notice.

If that US citizen combatant AQ member returns to the US as part of an invading armed force, the same rule should apply - given PID, he can be killed anytime, anyplace without offer of surrender or any other notice.

What if that US citizen never leaves the US, but becomes a combatant member of an AQ group within the US. Let us posit that that group executes a mini-Mombai successfully (proving they are a combat group); and now are peacefully (to all appearances) back in their homes. I'd say the same rule - given PID, those members can be killed anytime, anyplace without offer of surrender or any other notice. The USG might not do that for policy reasons; but consider the number of US citizens the USG killed on US soil because they were enemy combatants in our Civil War.

In all of these situations, we have to be engaged in an armed conflict with the TVNSA group (AQ in my three examples); and the US citizen has to be a combatant in that conflict - but so do non-citizens. I can't see why US citizens should be preferred over non-citizens in any of the three cases.

Regards

Mike

[Bill Moore]

I think the difference is that I'm not sure he legally expatrioted himself, anymore than retired LTC Hackworth did. However, that is a minor issue compared to having a few mid level bureaucrats basically handing out a death sentence on an American citizen in secret. If Americans are conducting illegal activities in a foreign country and their security forces kill them then it may be legal within their system, but if we kill them without due process that may well be a slippery slope.

In the case of Awlaki I have already stated I agree with the action. The logic of doing so is undeniable in my book, but "if" this does open the door to wider targeting of Americans without due process then it is of concern. There are a lot of young Americans and Europeans that think they want to terrorists, and even travel to the Middle East, South Asia, Somalia for training and get disillusioned when they get there and leave without ever committing a crime worthy of death. Yet, if Americans are in a particular camp with the "possible intent" of conducting a terrorist attack on the homeland should we take them out? It is obviously a very dangerous threat, but it is still a potential threat. What if we're just concerned they're training other terrorists on how to survive in the U.S.?

On Awlaki we agree, but this business can get very complicated.

[jmm99]

of a "US citizen [1] combatant AQ member [2] who has expatriated himself". That uses the simple factual test for Expatriation:

An expatriate (in abbreviated form, expat) is a person temporarily or permanently residing in a country and culture other than that of the person's upbringing or legal residence. The word comes from the Latin terms ex ("out of") and patria ("country, fatherland").

thereby avoiding the legal quagmires of Renunciation of citizenship and Denaturalization.

Hackworth (who had a number of policy viewpoints the same or similar to mine) was an expat to AUS for a decade. He was not a combatant in an armed force at war with the US. That is the essential test so far as I am concerned, which allows me to go on and include case 2 (an invasion force with a US citizen) and case 3 (a home-grown Mombai group).

Regards

Mike

PS: This is far-removed from anything I'm talking about:

Yet, if Americans are in a particular camp with the "possible intent" of conducting a terrorist attack on the homeland should we take them out? It is obviously a very dangerous threat, but it is still a potential threat.

A "very dangerous threat" based on "possible intent" ??? What an odd intelligence matrix. "Possible" is less than "probable" and even less than "plausible". "Intent" cannot be objectively determined without overt acts. I see no "very dangerous threat". Who in the present administration is propounding killing misguided youngsters ?

Now, if that particular misguided youngster happens to be in an AQ training camp with the rest of the AQ recruits - and we take out the camp - so be it; but that is not an individual targeted killing. If the guy leaves the camp as a "graduate", how do we know that he suddenly becomes "disallusioned" - unless he tells us ?