Opinion: Citizens Are Fair Game if They Stand Against U.S.

Sunday, December 04, 2011 - 10:30 AM

About a year ago, U.S. District Judge John Bates tossed a lawsuit that Anwar al-Awlaki's father had brought against the United States government.  Several months later, al-Awlaki was killed by a drone strike in a remote mountainous area of Yemen, causing much hand wringing among those who think that someone who is hell-bent on making war against our country should be given special treatment because they're an American citizen.

The judge was absolutely right. When someone wages war on our country, they make themselves a perfectly valid target for our military. It's our military's job to find external threats and neutralize them, and just because a target is an American citizen doesn't make them any more or less of a threat.

The military should take into consideration only whether a target is a danger to the country, and what is the best way to neutralize them. If sending a drone, or bomb by plane, is the best way, then that's what they should do. If sending a special forces team in would be more effective, attempting to capure them and potentially extract intel from them, then that's what they should do. They shouldn't be forced to give special treatment, potentially putting the lives of soldiers and American citizens at risk, by having special rules of engagement just because a target was born in our country, or gained citizenship in some other way.

By the absurd logic being used to say the government shouldn't be able to do it's job, the North should have had to come up with legal evidence that the soldiers fighting for the South in the civil war were enemies of the state before shooting back at them on the battlefield.  The substantive difference here is the battlefield is worldwide, and we often only know where they are for short windows of time, and in places where capture is difficult, dangerous and/or impossible.

Speaking on this subject a few days ago, CIA General Councel Stephen Preston had this to say:

...citizenship does not confer immunity on one who takes up arms against his own country. It didn't in World War Two when there were American citizens who joined the Nazi army and it doesn't today.

Preston was speaking to an American Bar Association conference on national security issues, and was followed by the Defense Department's General Counsel Jeh Johnson, who clarified the limits of this view, batting away slippery slope arguments, by saying that it doesn't include some guy making a bomb in their home who happens to identify with terrorist groups like al Qaeda. He also commented on the practical side of the equation, saying the courts, "are not equipped to make those types of decisions which very often are based moment-by-moment on an intelligence picture that constantly evolves."

Johnson is right on both accounts. It's the job of law enforcement to deal with domestic terrorists. But it's absurd to think that the FBI, rather than the military, should be tracking down terrorists in the mountains of foreign countries, while they plot attacks against American citizens.

Coming full circle, this segment from the Distict Court ruling mentioned at the outset of this article summarizes the legal precedent that debunks the argument that these attacks are clearly unconstitutional:

To be sure, this Court recognizes the somewhat unsettling nature of its conclusion -- 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 this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the "particular question" posed by a specific case, and the doctrine does not contain any "carve-out" for cases involving the constitutional rights of U.S. citizens.

The federal government has not said that it should be able to attack American citizens at will, as some straw men built by mostly liberal and libertarian commentators have tried to make their statements out to be. The federal government has said that American citizens will not get special treatment on the battlefield if they are fighting for an enemy of the state. Hamstringing the military with such special rules of engagement is both divergent from precedent used in past conflicts, and puts American soldiers and citizens at risk.

Solomon Kleinsmith is a former nonprofit worker, serial social entrepreneur and strident centrist independent blogger from Omaha, Nebraska. His website, Rise of the Center, is the fastest growing blog targeting centrist independents and moderates.


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Comments [4]

Solomon Kleinsmith from Omaha, NE

1) We have as much evidence that Awlaki is a threat as they do about a number of leaders of terrorist organizations that we have every right to go after, as they openly say they are trying to, and have occasionally been successful at, attacking our country.

2) I don't care what the dumbed down media has to say about him.

3) There have been assassins since the beginning of time, and in war they usually go after leaders of the enemy. Awlaki was a leader for our enemy, and it's immaterial whether he's going to be killed with a blade, poisoned food, a sniper's bullet or drone bomb. He's a more than valid target for our military.

In response to Brian... I'm not sure what you're talking about. I didn't say anything about legislation, and he is not one of our own. He was a leader in an organization that actively works to destroy our country. A valid military target sitting in a remote mountain range should not get special treatment because they happen to have been born here.

Dec. 13 2011 02:50 AM
Nick from New Jersey

I agree with the other commenters. You have a few problems with your argument.

1. You have absolutely no proof that Awlaki was supporting Al-Qaeda as a fighter or monetarily because the Executive Branch, who executed him, has not disclosed any proof whatsoever. So making statements like "But it's absurd to think that the FBI, rather than the military, should be tracking down terrorists in the mountains of foreign countries, while they plot attacks against American citizens.."

2. The Super Media did a great job of trying to characterize Awlaki as "the next bin Laden". What a load of crap. I agree with Gregory Johnsen, Fullbright Scholar and Yemeni expert that he was "a dime a dozen" cleric. He spoke English. That is what did him in...

3. Your comparison with the Civil War doesn't work at all. We didn't have drones that went after people. If you had a gun and were pointing it at another person, you better pull the trigger. There may have been assassins but they would never have gone after someone like Awlaki, a mouthpeice for a movement similar to that of al Qaeda.

The truth about Awlaki is that he was used. He was created by the US as "the next bin Laden", even though many in Al Qaeda in the Arabian Peninsula had never even heard of him. He certainly wasn't commanding troops, or if he was, we have no evidence of him doing so. The media created an Awlaki that was even more scary than Osama since he could speak English and could reach out to all of the disgruntled dregs of society and turn them all into the mujahadeen. Again, a load of crap, but it makes for a great bullet point (pun intended) in the Strong Foreign Policy debate that Mr Obama will certainly have with his warmonger Right Wing Adversaries. I am against it, I am against all of it, and them both.

Dec. 07 2011 05:06 PM
Brian in Red Bank from Red Bank, New Jersey

Although your comments show a clear passion Mr Kleinsmith, and it seems equally clear you believe yourself to have given them much thought there are several logical problems with looking at this problem through this lens.
The simplest and most relevant problem here is that all legislation has unintended consequences and should be avoided if redundant. After ten years and two wars we have encountered exactly one person (al-Awlaki) for whom this sort of legislation could even be considered necessary and he's already dead. So we're passing legislation now that creates a moral, ethical and constitutional grey zone for the purpose of formalizing a legal framework under which we could indefinitely imprison a dead man.
Having said that no one disputes battlefield tactics and reprisals against an armed attacking american. The dispute is with battlefield tactics against an unarmed verbally or financially attacking american. If this is a crime there are some investment banks that fit the bill rather nicely and have caused more loss of blood and treasure than has al-Awlaki (or Al Queda for that matter).
Treason is a crime worth prosecuting (in absentia if need be) and worth prosecuting in public precisely because of the moral standing it gives us to send a drone half way around the world to kill one of our own.

Dec. 07 2011 01:19 AM
kevin from Queens

It's nice to see that murder and war mongering isn't unpopular with the left either. If a person is a threat, where's the evidence? Awlaki has never been in combat, and at the same time, Obama gave the green light to take out his 16 yr old son, who they knowingly misstated as being 24.

Dec. 05 2011 07:57 PM

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