The president isn’t claiming too much power to claim Americans who join Al Qaeda, but too little
Where the white paper commits serious error is in positing that the “due process” clause of the Fifth Amendment applies to al Qaeda operatives at large. In Hamdi v. Rumsfeld (2004), the Supreme Court ruled that once suspected enemy combatants had been captured and detained, some measure of “process” was owed to them. But the court’s decision applied to enemy combatants only after their capture, but not before it. The distinction makes perfect sense. It would be shocking to give a captured enemy combatant a drumhead trial on charges of committing war crimes and then shoot him moments later. But minutes before being captured, that same enemy combatant would have been a lawful target for lethal fire. Enemies reduced to captivity do not pose anything like the degree of danger of those under arms and at large.
The white paper’s assumption that U.S. citizens who are enemy combatants are constitutionally entitled to due process even while engaged in, or available for, hostilities is both gratuitous and in error. It is not compelled by the language of the due process clause, which protects “persons,” not “citizens.” If the white paper were right in claiming that U.S. nationals in al Qaeda deserved due process rights, then it should logically have concluded that the same was true of Saudis or Yemenis in al Qaeda. Further, the white paper’s extension of due process to enemy combatants at large is not dictated by any Supreme Court decision. It also has no basis in the traditional laws of war or state practice. And it carries significant operational disadvantages.
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Then don’t! Try him as a terrorist, then shoot him!
OldEnglish on February 10, 2013 at 9:01 AM
It’s kind of shocking to watch the left go from bemoaning the reasonable lengths to which Bush went in the WOT, to contorting themselves into justifying anything Obama comes up with.
Not surprising, mind you, but still shocking.
Count to 10 on February 10, 2013 at 9:03 AM
Wow this guy is brilliant, just like Obama.
I prefer the Bush/Cheney policy:
fogw on February 10, 2013 at 9:06 AM
I just can’t make this make sense…
cntrlfrk on February 10, 2013 at 9:11 AM
Except, fogw, the rules for interrogation have so handicapped our forces under Obysmal that they are nothing more than time-out in the comfy chair,
What I don’t like about the WH White Paper is that it is so vague on what constitutes the “imminent danger” posed by an American lackey of terroristic forces. In fact, this administration is vague on who or what the enemy actually is, purposefully so, I think.
onlineanalyst on February 10, 2013 at 9:16 AM
All the text of the white paper that I read never mentioned AQ specifically. It just refered to an American who was an imminent threat. If you’ve listened to the MSM over the years they’ve already defined the Tea Party as such! Is there more text out there that actually says the American being targeted joined AQ?
Weight of Glory on February 10, 2013 at 9:24 AM
Only in the White Paper, otherwise this administration has made it perfectly clear in words and deeds that the enemy is us. Therefore we can conclude that they are purposely vague, or as I like to call it, they are blowing smoke up our arse. That’s all they’ve ever done.
They’re just preparing for drone strikes in neighborhoods unfriendly to our Fuhrer. There was a time when I thought such an eventuality would be impossible. Not any more.
fogw on February 10, 2013 at 9:29 AM
And this is true, if there were no underlying concepts, the assumptions, if you will, to the statement. There are two assumptions underlying the statement that apply. One is jurisdiction. Where the US has jurisdiction, therefore, person means anyone, i.e., citizen or non-citizen. So, a Frenchman in NYC has the same claim to this right as a US citizen in NYC citizen.
The second is citizenship, which is oath of allegiance, which is a dual oath. In other words, the citizen takes an oath to protect the country and the country takes an oath to protect the citizen. That oath has no border, or jurisdiction quality. So, the Frenchman leaves NYC for France and his claim to our due process terminates. The American leave NYC for France and that right goes with him.
I don’t know that this is explained further into the article and I’m not about to play the sign in sh!t at FP just to read what appears to be seriously flawed.
Dusty on February 10, 2013 at 9:56 AM
John Yoo is still smarter than his critics.
EastofEden on February 10, 2013 at 10:12 AM
The problem here is ‘available for.’
I’m available for combat against the United States, but I’ve done nothing to lead anyone to believe I am engaged in (or seeking engagement in) hostilities.
Isn’t everyone ‘available for’ hostilities against the government? How long until conservatives are labeled as ‘available for hostilities against the government’ and assassinated?
Washington Nearsider on February 10, 2013 at 10:13 AM
Good point. It’s not like “available for” means getting to the war zone in a timely manner. Now it’s as simple as having a mobile phone with enough minutes left to get the message.
Dusty on February 10, 2013 at 10:17 AM
The problem, you enablers of totalitarianism, lies not with the what we do to enemy combatants. It is the process by which their status as “enemy combatant” is determined. If you think that the Executive should have the sole power of determining that, than you are better suited for practicing the law in North Korea than the US…
JohnGalt23 on February 10, 2013 at 10:30 AM
I should say, this applies to American citizens who are allegedly “enemy combatants”…
JohnGalt23 on February 10, 2013 at 10:32 AM
Spot on. No one’s arguing al-Awlaki didn’t need a Hellfire to the face. What we’re arguing is that the process by which that determination was made is fatally, fundamentally flawed. How was the determination made that he needed to be assassinated? What oversight is there to ensure Executive overreach is contained? (Remember when the lefties were all about containing Executive overreach?)
And so on.
Washington Nearsider on February 10, 2013 at 10:38 AM
@Washington Nearsider: Do you guys seriously think these sorts of typically real-time, tactical military decisions can or should be made/reviewed by judges and Congressmen? If you don’t trust the President, don’t support the war.
Seth Halpern on February 10, 2013 at 11:14 AM
Noel Sheppard @ NewsBusters, regarding Eleanor Rodham Clift suddenly jumping on the Drone Bandwagon this week:
Del Dolemonte on February 10, 2013 at 11:23 AM
I fought in this war. That’s more support that most have given it.
As to your question – no, of course not.
The thing is though, the decision to kill al-Awlaki wasn’t made in the heat and smoke of the battlefield where you have a heartbeat to make a decision. It was made quietly and deliberately, in an office here in DC. Then, when an opportunity presented itself, the shot was taken. That’s how kill list work. You decide BEFORE the shot it taken – well before.
How was that decision reached? In this specific case, there is no doubt the target deserved a Hellfire. The precedent establish though – that one unnamed individual with no oversight can determine who should be assassinated and who should not – is extremely concerning.
Washington Nearsider on February 10, 2013 at 11:40 AM
Here’s a somewhat different “take” on the question from J.E. Dyer.
AesopFan on February 10, 2013 at 6:46 PM