The Rules - Engaging HVTs & OBL

[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 ?

[jmm99]

both critical of the Obama Administration for different reasons - and poles apart:

John Yoo, The Administration’s Strange Reasoning on al-Awlaki (9 Oct 2011)

Andy Worthington, Death from Afar: The Unaccountable Killing of Anwar al-Awlaqi (4 Oct 2011).

I have to say for Andy that he does not ignore legal holdings that are against his position:

Technically, al-Awlaqi’s inclusion on a target list maintained by the U.S. military’s shadowy Joint Special Operations Command (JSOC), and the April 2010 decision to add him to “a list of suspected terrorists the CIA is authorized to kill,” which “required special approval from the White House” (as the Washington Post described it), is legal. This is because, in December last year, Judge John D. Bates of the district court in Washington, D.C., dismissed a lawsuit contesting President Obama’s “targeted killing” policy, which was submitted on behalf of al-Awlaqi’s father.

Judge Bates ruled that “the plaintiff did not have legal standing to challenge the targeting of his son,” and also concluded, alarmingly, “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 that does not prevent him from hitting at the consequences as he views them (which BTW is OK):

This was unacceptable to the ACLU and the Center for Constitutional Rights, acting on behalf of al-Awlaqi’s father. They asked three particular questions that I found important:

Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

Why did the court not order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists?

How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?

These questions were unanswered, and they remain unanswered now, prompting John Bellinger to recommend that the Obama administration “should provide more information about the strict limits it applies to targeting and about who has been targeted.”

The ACLU and CCR could have asked those questions (and raised more) by appealing Judge Bates' Awlaki ruling - which they didn't do. Why they didn't appeal has puzzled me.

To me, the multi-million TSA searches and the multi-thousand ISP disclosure orders are going to have far greater long-term effects on the civil and political rights of US citizens, than whacking al-Awlaki (or not whacking him, for that matter). In those areas (as re: "enhanced interrogations" and "extraordinary renditions"), I stand more to Andy's side than to that of John Yoo. On the al-Awlaki issue, I do stand more to Yoo's side.

Regards

Mike

[Bill Moore]

Posted by JMM,

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".

What an odd intelligence matrix? Isn't this the same matrix we used to justify invading Iraq? Wasn't there a book written not too many years ago called the "one percent doctrine"?

Possible may or may not be less than probable in this case, unfortunately I can't think of a term that would identify a midpoint on the scale between possible and probable.

If intent must be proven objectively, and it can't be proven objectively if overt acts are not observed that leaves two options I can think of off the top of my head. One, we monitor, wait, and then arrest if and when the overt act(s) are observed. That is obviously the appropriate approach legally, but if it overwhelms law enforcements capacity to do so and the risk of missing the overt act and allowing an attack to actually happen takes us to option two, which the FBI is frequently accused of using, which is leading the would be (could be) terrorist to demonstrate his intent by offering him/her a plot and then pass inert explosives to them. Once they take them we arrest them. A lot of lawyers call this entrapment.

Where you don't see a dangerous threat, I see a very serious "potential" threat. An American citizen who doesn't fit the preconceived profile of what a terrorist looks like, acts like, and can move freely in American streets is a person that has a much higher probability of defeating our security measures.

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 ?

There are lots of ways to find out, but one way is he calls his parents and tells them he wants to come home, and then his parents call the State Department or the FBI and ask for help.

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).

IMO Hackworth was a great American who told the truth to an audience that wasn't comfortable with the truth. In turn they set loose the dogs of reputation killers to attack the person, because they couldn't challenge his arguments.

However, my point about bringing up Hackworth is what makes a person an expat legally? If I decide to reside in Mexico for a year am I legally an expat and no longer enjoy my rights as a U.S. citizen?

[jmm99]

The NYT Editorial on al-Awlaki has finally been published, Justifying the Killing of an American (Published: October 11, 2011). As compared to the in-depth coverage we've seen over the last week, the editorial is comparatively weak tea.

Its BLUF is:

Mr. Awlaki was not entitled to full protections — an open-court trial in absentia would have been time-wasting and impractical — but as an American, he was entitled to some. The memo said Mr. Awlaki should be captured if feasible — an important principle, even though the government did not believe it could safely put commandos in Yemen to capture him.

Due process means more than a military risk analysis. It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans. And it means taking the decision beyond the executive echo chamber. We have argued that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list.

The Obama administration seems to know that antiterrorist operations do not escape the rule of law. Its case would be far stronger if it would say so, out loud.

This quote allows me to segue into one of the concerns raised by Worthington and several of the items in Bill Moore's last post. But, later; I've a noon appointment.

Regards

Mike

[jmm99]

The question posed by Worthington, the ACLU and CCR:

Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

My BLUF: Outside of the context of armed conflict, “targeted killing” should not apply at all. Nor, should any of the other "Wartime" rules based on status. By moving those wartime rules into our justice system, we run the risk of polluting that system. I'm glad Michael Hayden made that point in his debate - and took a shot at AG Holder in the process (this post):

We had the attorney general talking to the American Congress about legislation that would make Miranda more malleable so that we could interrogate these kinds of people longer in our law enforcement approach.

I don't want to make Miranda more malleable. Miranda defends me. Defends you. Defends your rights. And we're forced to contort the law enforcement approach when we attempt to make it answer and deal with questions it was never designed to deal with. This is one of those questions. Don't take that other tool, "We are a nation of war [sic ! at war]" off the table.

Now, the first quote from Worthington, the ACLU and CCR (“as a last resort to address an imminent threat to life or physical safety”) may be speaking to a "Tennessee v Garner" situation (a fleeing felon, esp. from a lawful arrest, known dangerous from his prior conduct); but that is really a "Peacetime" rule based on conduct.

In the context of an armed conflict (jus in bello), the term "as a last resort to address an imminent threat to life or physical safety” introduces a constraint that is not required and is dangerous to the life and limb of soldiers and to those they are trying to protect.

Of course, politicians and the NYT love to have their cake and eat it too. So, we get the NYT concluding that Mr. Awlaki ought to have had "due process" and "rule of law" protections; but, mind you, not all of them because some of them would "time-wasting and impractical". So, let's pick from the "Rule of Law" here and the "Laws of War" there.

Since none of the resultant mishmash is justiable anyway (Bates et al are correct on that), legal opinions are really immaterial and the only material factor is the outcome of the political struggle. I'm game for that.

The issues surrounding "targeted killing" (unless one wants to do it in a "Peacetime" environment - I don't) are somewhat different from human intelligence operations. In a "Peacetime" environment, many human intelligence operations are illegal under the domestic laws of the targeted country.

So far as international law is concerned, "state practice" has been a wink and a nod, including to some extent covert "intelligence" actions that have been military in their primary nature.

Again, say the politicos, "we will have our cake and eat it too" - esp. if one has had a couple of early successes (e.g., Iran and Guatemala; but then the Bay of Pigs).

Even if FISA is justified in a wiretap situation (handled by other courts every day in different contexts), that does not justify a "FISA-type court" (whatever that really means) to oversee "targeted killings".

Regards

Mike

[jmm99]

Taking Bill's points in reverse order:

Expatriation

IMO Hackworth was a great American who told the truth to an audience that wasn't comfortable with the truth. In turn they set loose the dogs of reputation killers to attack the person, because they couldn't challenge his arguments.

However, my point about bringing up Hackworth is what makes a person an expat legally? If I decide to reside in Mexico for a year am I legally an expat and no longer enjoy my rights as a U.S. citizen?

The answers are given in the hyperlinks in my post, I set out a simple factual test - case 1

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.

Expatriation (no matter how long) does not = Renunciation of citizenship or Denaturalization

BTW: Hackworth's smartest "Peacetime" move (or luckiest) was hiring Joe Califano, who was too busy to handle the "case" and passed Hackworth down to a young lawyer in Califano's firm - Brendan Sullivan, who was far from a "potted plant" even then. Luck of the draw.

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Misguided Youngsters

There are lots of ways to find out, but one way is he calls his parents and tells them he wants to come home, and then his parents call the State Department or the FBI and ask for help.

That's certainly one way. In any case, even under Wartime rules, the agency involved should (for sound intelligence reasons) bring the youngster in from the cold; and welcome him to a series of interviews in the best traditions of Hanns Joachim Scharff. Foregoing criminal prosecutions might well be part of the arrangement. And, rules aside, is the youngster (or oldster, as in at least one Gitmo case) really done with AQ ? - a difficult question to find answers even for a "Scharff" gator.

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Matrices and Stuff

What an odd intelligence matrix? Isn't this the same matrix we used to justify invading Iraq? Wasn't there a book written not too many years ago called the "one percent doctrine"?

Don't include me among that "we" if that is exemplified by the public DCI 2002 report on Iraq's Weapons of Mass Destruction. That report's bold face contained far more lawyerly weasel words than even I could tolerate.

I did support getting rid of Saddam because of his past conduct up through 2002; and to get rid of the UN Embargo. My support for nation-building was non-existent, and I said in Dec 2003 that we should be gone. I also thought the "one percent doctrine" as expressed by Suskind was nuts. I've written all that here at SWC; but have not checked my exact wording.

Possible may or may not be less than probable in this case, unfortunately I can't think of a term that would identify a midpoint on the scale between possible and probable.

As to "probable" - more likely than not, viewing all the evidence as a whole.

As to "possible", what is probable is also possible; but what is possible is not necessarily probable. A "one in a trillionth percent" is "possible".

As to "plausible", some good material evidence; but viewing all the evidence as a whole, it is not more likely than not. What is probable is also plausible; but what is plausible is not necessarily probable. What is plausible is also possible; but what is possible is not necessarily plausible.

The term "possible intent" covers too much waterfront - (1) because "possible" covers too much range; and (2) "intent" (like "belief") is also a difficult term to qualify, much less quantify.

This is not some tricky legal test (and it sure isn't philosophy). It's simply how I look at facts - thereby realizing that a gray area (for individual determination) exists in practice.

If intent must be proven objectively, and it can't be proven objectively if overt acts are not observed that leaves two options I can think of off the top of my head. One, we monitor, wait, and then arrest if and when the overt act(s) are observed. That is obviously the appropriate approach legally, but if it overwhelms law enforcements capacity to do so and the risk of missing the overt act and allowing an attack to actually happen takes us to option two, which the FBI is frequently accused of using, which is leading the would be (could be) terrorist to demonstrate his intent by offering him/her a plot and then pass inert explosives to them. Once they take them we arrest them. A lot of lawyers call this entrapment.

An overt criminal act (even under "Peacetime" rules; the two examples given above) can include speech - e.g., falsely yelling "fire" in a crowded theater; or an email outlining the criminal plan. Entrapment is a lousy defense (it does not usually succeed), even where the other half of the conspiracy is totally fabricated to fit what the conspirator wants.

These same "Peacetime" tools are not excluded from my "Wartime" tool kit; but once one starts down the "Peacetime" road - say, by fabricating via CI-1 a link to a TVNSA group (even if that group is real), I can't see how one can justify moving to "Wartime" rules and shooting the guy. The reason, BTW, has nothing to do with entrapment; but with the fact that the guy is not a real combatant in the real TVNSA group. And, you don't get that status even if the guy is a member of Quds - ain't no AUMF vice Iran or Quds (last I looked)

Where you don't see a dangerous threat, I see a very serious "potential" threat.

Remember my objection was and is to an intelligence matrix finding a "very dangerous threat" based on "possible intent". No way, under either "Peacetime" or "Wartime" rules. The same for it being a "very serious potential threat" based on "possible intent" - the substance is still the same.

An American citizen who doesn't fit the preconceived profile of what a terrorist looks like, acts like, and can move freely in American streets is a person that has a much higher probability of defeating our security measures.

All very true. That person is perfectly clandestine. He or she will not be on anyone's "hit list" of enemy combatants (not a status-based target under "Wartime" rules); nor will he or she be on anyone's investigation list (not a conduct-based person of interest under "Peacetime" rules). That person's beliefs and intentions will most likely be Mom and Apple Pie. So, unless our security services get lucky, that person will go on to successfully complete his or her mission.

Regards

Mike