Yes, We Are At War, Ctd

A reader writes:

You seem to be setting up a false dichotomy here. Your field of choices seems to be either a) we can capture and try Awlaki as per ex parte Quirin, or else b) we kill him if we can. Why is it not possible to have c) a trial in absentia to determine at least probable cause - I'd push for more, but AT LEAST that much - to find him to be a traitor and terrorist, and have the court or tribunal then set the punishment, up to and including a death sentence? There's already lots of evidence in the public domain, and the court could be closed off for any parts that are of a sensitive national security nature. So how about SOME oversight, at least in form if not substance?

I like that third option and it really is pretty much a consensus here that the government's invocation of "state secrets" has hurt their cause, not helped it, and I would like to see the government make its case in a legal setting. Another writes:

In response to a reader who discussed the evidence that Awlaki is a terrorist, you wrote that to call the evidence against Awlaki "untested hearsay" is absurd. You are entitled to state your opinions, but I am begging you to stop misstating the law. 

Hearsay is a technical legal term that has a specific meaning. In this context, the term 'untested' refers to the fact that the evidence has not been subjected to cross examination. The evidence of Awlaki's guilt is untested hearsay. That is not a debatable proposition; it is an accurate factual statement.

You clearly do not believe that the evidence in this case need be subjected to the adversarial process before you make a credibility determination, but there are many of us out here who disagree. You apparently trust the sources of the evidence (including Awlaki himself, for some reason). If the evidence is so overwhelming, and so clearly credible, how about if we go ahead and give the guy a trial, just to humor those of us who think that the rule of law is important?

I do believe the rule of law is important, as I believe the laws of war are important. And I have explained why I believe under the conditions of war, killing a specific enemy is not the same as assassination. But I agree with my first reader that we should have far more information from the government as to why it believes there is no doubt that Awlaki is who they say he is.

More generally, this comes down to a profound question of whether we are "at war" or not. Constitutionally, the Congress has issued a declaration of war. But obviously, what George W. Bush called "a new type of war" is something extremely difficult to judge and may change through time. But if it is to change formally, the Congress must declare it over. They haven't. Until then ...