Yes, We Are At War, Ctd

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Boy have I come in for a shellacking from readers and other civil libertarians. Glenn Greenwald's latest is quite a barrage of logic, legal expertise and passion, but in trying to think these questions through some more, I found the comments section on Daniel Larison's blog-post here more helpful. Indeed, it's almost a model of intelligent debate on this subject. And it highlights what I think are some useful and important good faith differences between those of us who all agreed on the horror of the Bush administration's invocation of dictatorial executive powers in the detention and treatment of prisoners of war and those of us who now nonetheless disagree on some important aspects of what I continue to call a war on Jihadist terrorism.

Our first disagreement is a fundamental one. I believe this is a war, not some kind of lesser counter-terrorism operation, or a global criminal operation. I understand that it is not always prudent to blast this term around, for fear of empowering the theocratic murderers who want to kill us; and I concede that this is a fluid term, with threats waxing and waning; I concede that we may at time over-estimate the forces against us; and that the trauma of 9/11 should not dictate our every move. But there are groups and individuals out there trying to kill as many Westerners, and fellow Muslims, as they can, and to do so with no qualms and with as much damage as possible. This is not a chimera. Attacks have continued every year since 9/11 and before. The perpetrators of 9/11 remain at large. New bases in Yemen and Somalia and Iraq and Pakistan and Afghanistan exist. If they could get their hands on some form of WMDs, they would. And they'd use them.

Moreover, the war against these amorphous forces of al Qaeda is perfectly constitutional, having been authorized by the Congress, against an enemy that directly attacked the mainland of the United States, and had already attacked US embassies and warships, and murdered the civilians of allies, most grotesquely in London and Madrid. I did not reproduce the image of the destroyed World Trade Center for some cheap attempt at moral blackmail, or to propagate irrational fear, but to remind ourselves of the scale of the damage inflicted by a military organization that is still determined to kill as many of us as it can, and is even now re-grouping to kill more in the name of God.

It is, moreover, a theocratic military organization of horrifying methods, violating core Muslim teachings in its mass murder of civilians, and with a barbarism as bad as any in the history of warfare. I am not ashamed of fighting this enemy, or of supporting a war against it. I remain, of course, concerned that we understand it accurately, do not over-estimate it, or by our own errors and misjudgments unwittingly empower it. This makes this war extremely difficult. It requires both isolating an Islamist terrorist army from the world's Muslim population (whom it targets) and also relentlessly hunting it down and killing its members when they remain an active military and physical threat against us. That's why I support an outreach to the Muslim world as well as a relentless yet carefully targeted war against Jihadists. That's why I want a Green Revolution in Iran and a two-state solution in Israel/Palestine. And it's why I regard resolving these issues as matters of some urgency - because I do not believe the threat is an illusion, or the prospect of wider global war unimaginable.

I should add that it is precisely because I take this to be a war that I took the gross violations of the laws of war engaged by the Bush administration to be so damaging and wrong and counter-productive. When you unleash the power of warfare, the use of raw violence to coerce an enemy into defeat, that power is so great and the passions it unleashes so powerful that the temptation to go beyond legitimate war-aims into torture and mistreatment of captives or collective punishment of civilians must be resisted strongly. When it is actually condoned and authorized by the commander-in-chief, the results can destroy the civilization we are trying to defend.

And so I find torturing captives in warfare far more morally troublesome than killing the enemy in a just war. Because warfare, alas, even just warfare, is about killing the enemy. Now the question before us is whether it is still right to kill an individual member of an enemy organization if he is an American citizen, fighting a war against this country and his fellow citizens in a foreign country which is a base of operations for al Qaeda, where the prevailing government, such as it is, is unable to capture or detain him and where it is effectively impossible for us to capture him and bring him to a military tribunal or civilian trial. That's a mouthful and a lot bundled up into one sentence. But I think it's a fair statement of the ultimate question we are asking - and it is an important question and I respect very much the concerns of those who say no.

So let's try to unpack this. First, is it legitimate in a war to target for killing any individual in an enemy army? Of course it is. In Larison's thread, commenter Anderson notes the example of Admiral Isoroku Yamamoto. I hope Glenn Greenwald will forgive me for citing Wikipedia here:

On 14 April 1943, the US naval intelligence effort, code-named "Magic", intercepted and decrypted a message containing specific details regarding Yamamoto's tour [of the South Pacific], including arrival and departure times and locations, as well as the number and types of planes that would transport and accompany him on the journey. Yamamoto, the itinerary revealed, would be flying from Rabaul to Ballalae Airfield, on an island near Bougainville in the Solomon Islands, on the morning of 18 April 1943.

U.S. President Franklin D. Roosevelt ordered Secretary of the Navy Frank Knox to "Get Yamamoto." Knox instructed Admiral Chester W. Nimitz of Roosevelt's wishes. Admiral Nimitz consulted Admiral William F. Halsey, Jr., Commander, South Pacific, then authorized a mission on 17 April to intercept Yamamoto's flight en route and shoot it down.

It worked. Was Yamamoto "executed" or "assassinated"? Or was he killed in wartime, as my own plain English word would have it? Was the failed 1941 attempt to kill Rommel by No. 11 Scottish Commando at Bedda Littoria, Libya, an assassination attempt? In 1951, a U.S. Navy air strike killed 500 senior Chinese and North Korean military officers and security forces attending a military planning Conference at Kapsan, North Korea. Was that a mass execution of targeted war leaders? If the Royal Airforce had had intelligence revealing Hitler's precise whereabouts and had a chance to bomb it, would that have been an assassination? If Osama bin Laden's location were somehow decrypted, and capture was not feasible within sufficient time, and president Obama ordered a drone attack that killed him, would that be an act of presidential "assassination" or a legitimate act of warfare? I think the latter. And under military law, the same principle applies to someone not in uniform in a global counter-insurgency. From the Parks 1989 Memorandum on assassination in exactly such a situation:

Guerrilla warfare is particularly difficult to address because a guerrilla organization generally is divided into political and guerrilla (military) cadre, each garbed in civilian attire in order to conceal their presence or movement from the enemy... A civilian who undertakes military activities assumes a risk of attack, and efforts by military forces to capture or kill that individual would not constitute assassination.

Now, of course, the added issue here is if a member of the enemy military is actually an American citizen fighting the US on enemy soil. (Not American soil, where the military has and should have no role in conducting warfare against al Qaeda.) Obviously this matters. A lot. So let's unpack this further.

Consider one hypothetical. An American citizen joins the German army in the Second World War and is killed in a gun-battle, as allied troops march through France. Is he thereby somehow an illegitimate target for killing? Are we required in such a war to ensure due process, to go through the constitutional requirements proving treason, even while on the battlefield? I'd say not. What if such a saboteur or traitor were subsequently captured alive? Ex Parte Quirin determines that a military commission - not a civilian trial for treason - is sufficient to prove their guilt. They are, in other words, members of an enemy army, against which the president has been authorized to wage war by the Congress. They are therefore liable to be captured, or if not able to be captured, killed. That is the sense in which I mean there is no due process in killing someone in a war.

Does the kind of war we are engaged in change this? This is a thorny question, but it seems to me that it does not. The best approach, obviously, is to capture this person and put him in either a military commission or civilian trial. But in the tribal areas of Yemen, whence the US has been attacked before, and where the government, such as it is, is incapable of finding and capturing such an enemy? There are obviously massive practical constraints on such a possibility, and if an opportunity were to arise where he could not be captured but could be killed, would that be an assassination? I do not see why. Capturing would be much preferable, if only for intelligence purposes - assuming, as we now mercifully can, that torture is over. But practically speaking, killing him as a last resort rather than letting him slip away seems to me to be a totally legitimate act of war.

Glenn wants to know how we know for sure Awlaki is actually a member of al Qaeda and committed to warfare against the United States? He mocks my reference to Wikipedia. But Wikipedia is a vast array of public and journalistic sources, and the public evidence that this figure is indeed a proud member of al Qaeda, committed to murdering Americans in what he understands as a war is overwhelming. He has said so himself, for Pete's sake. As have his many students who have tried to kill American citizens:

Abdulmutallab [the Christmas undie-bomber] told the FBI that al-Awlaki was one of his al-Qaeda trainers in remote camps in Yemen. And there were confirming "informed reports" that Abdulmutallab met with al-Awlaki during his final weeks of training and indoctrination prior to the attack. Some of the information ... comes from Abdulmutallab, who ... said that he met with al-Awlaki and senior al-Qaeda members during an extended trip to Yemen this year, and that the cleric was involved in some elements of planning or preparing the attack and in providing religious justification for it.

Other intelligence linking the two became apparent after the attempted bombing, including communications intercepted by the National Security Agency indicating that the cleric was meeting with "a Nigerian" in preparation for some kind of operation. Yemen's Deputy Prime Minister for Defense and Security Affairs, Rashad Mohammed al-Alimi, said Yemeni investigators believe that in October 2009 the suspect traveled to Shabwa. There, he met with al-Qaeda members in a house built by al-Awlaki and used by al-Awlaki to hold theological sessions, and Abdulmutallab was trained there and equipped there with his explosives. A top Yemen government official said the two met with each other. In January 2010, al-Awlaki acknowledged that he met and spoke with Abdulmutallab in Yemen in the fall of 2009.

In an interview, al-Awlaki said: "Umar Farouk is one of my students; I had communications with him. And I support what he did." He also said: "I did not tell him to do this operation, but I support it," adding that he was proud of Abdulmutallab. Separately, al-Awlaki asked Yemen's conservative religious scholars to call for the killing of United States military and intelligence officials who assist Yemen’s counter-terrorism program.

Glenn's point is that, without a trial, none of this matters because it hasn't been proven in court and we cannot just trust a president, authorized by Congress to wage a war against an enemy this person proudly claims to be a member of, to order such a killing, or believe any of the countless reports and government statements, from Yemen to London to Washington, detailing this man's direct complicity in al Qaeda's war on the West. I think anyone conducting a war would find that kind of standard ridiculously high. I think it comes down to the notion that Glenn thinks this person is being accused of a crime in a non-military context whereas I think he is a self-described member of an enemy organization dedicated to waging war against us (which takes us back to square one). I think the public evidence and his own statements make it beyond dispute that he is a proud member and core propagandist of an enemy organization trying to kill and indeed threatening the lives of free people. If Awlaki wants to prove otherwise, let him come to this country, turn himself in and make his case in court, rather than indoctrinate new Qaeda terrorists in the remote tribal regions of Yemen. Of course, all of this could be made up, I suppose, a conspiracy of hysteria and government incompetence and military bravado. In which case, as commenter conradg rather brutally notes, I would say to Glenn,

Of course you are right that if Al-Awlaki has no tangible connection to Al Qaeda’s operations aside from some vague political sympathy that trying to kill him would be unjust. And if our military is just making this shit up and trying to kill Al-Awlaki unjustly, for purely political reasons, that is also unjust. But it’s not illegal. Nor is it something our military has to run by a judge to get permission to do. Again, this is a war authorized by Congress to be waged wherever the enemy is, and not limited by geography or citizenship. You keep pretending that isn’t the case. If there’s a problem here, it isn’t lack of judical involvement, since the Judiciary has no role to play here, it’s a lack of congressional oversight.

Which brings us to Scott Horton's post. Scott, if I am reading him correctly, does not disagree with my basic contention as to the president's war powers here:

A warrior fighting on the battlefield against U.S. forces in a conflict has no privilege against being killed because he is a U.S. citizenthat’s a well-settled norm of the laws of war, upheld by the Supreme Court in Ex parte Quirin (1942). Surely the Obama Administration would justify its action under these principles: there must be evidence linking al-Awlaki to an imminent, military threat involving al Qaeda and its associated forces, and evidence putting him in a command and control position. I waited to hear confirmation of that, and perhaps even to get a taste of the evidence.

I would quibble with the word "imminent." I don't think in this war there has to be an imminent threat in order for you to have a right to kill someone at the core of an enemy organization responsible for indoctrinating and training individuals who have committed previous acts of terror. But leaving that aside, Scott agrees that in a core respect, the administration did not need say anything public about this at all. He argues instead that once it did make such a display of this intent, its public posturing about killing Awlaki requires a full public explanation and its legal response to Awlaki's father's lawsuit was Cheneyesque in its executive arrogance:

The Justice Department’s brief is filled with slithering evasions and half-truths about what the administration previously said and did. It invokes state secrecy defenses, claiming that this is something “rarely done,” and that the government is entitled to stop the case from proceeding. And it argues that al-Awlaki can avoid the threat of extrajudicial execution simply by walking into the U.S. embassy in Yemen and turning himself ina legitimate call if there were criminal charges pending against him, but where are they? This is the typical niggling of lawyers out to defend their client in a lawsuit without revealing much of their hand. But it is fundamentally unworthy of the American government, and it reveals an attitude to the public and the courts that borders on contempt. I picked up this brief expecting to nod in agreement with Obama on this issue, and I came away concerned about an unseemly game plan.

I do not have a scintilla of Scott's (or Glenn's) legal expertise on these matters and so I cannot really judge the merits of this argument. But I have come to trust Scott's judgment over the years on this, which is why the high-handed invocation of state secrets in this case remains as troubling to me as it did in my first post. But I am not sure I believe that Obama's DOJ really wants to invoke the scale of powers Bush's did, as Scott suggests. More likely, its mouth got the better of its judgment, or rather its Rahm got the better of its Obama. Is this giving them too much credit? Maybe. I'd like an explanation, however, on the lines Horton has suggested.

So I remain in this very tight spot, I concede, supportive of the military right to target an enemy leader in a war in a clear battlefield, but deeply skeptical of the way in which the administration has publicly brandished and subsequently legally defended this position. That probably satisfies neither side of this debate. (And I sure hope it doesn't end this debate. I write this post as I do all such posts - in the expectation of rebuttal and dissent and of being corrected or informed further. I have had only a few days to chew on these complicated eddies some more, but have ended up closer to where I started than I first thought I would in the full blast of criticism.)

So let me summarize, with feeling, that the legitimacy of killing a dangerous member of al Qaeda at large in a battlefield in wartime in no way strikes me as some kind of "assassination" by a new "tyranny" in the way that Glenn Greenwald argues. Moreover, this is reckless hyperbole. I respect Glenn's punctilious concern for civil liberties, am grateful for his vigilance, but respectfully disagree with him on what war is and means, and what Awlaki clearly believes and supports and enables. I wish either of us had all the information the government has to resolve this question beyond a reasonable doubt - but am realistic enough to know that in wartime in these matters, some trust in a duly elected president of the United States at war and some secrecy in war operations is something we just have to live with. Yes, even in a president I do not support and could not trust. Yes, even a president Palin, if she were ever (God help us) elected to such a position of authority and judgment. This is a democracy and we respect the office of the president in such an awful situation, where he or she does have the latitude to make military decisions based on information simply unavailable to the rest of us for obvious reasons.

Potentially killing an American citizen is a brutal and ugly and awful part of this war and any war. All war is awful and brutal. But if it is impossible to capture him as he wages war against us and yet we get some kind of intelligence break that would enable us to kill him, I regard it as the president's duty to order the relevant military to, in FDR's words, "get" him. And killing him as part of a war authorized by Congress against a declared enemy of the United States is not a violation of the Constitution, but in compliance with it.

And a defense of us.

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