Friday, September 30, 2011

What's Scary and Not About Anwar Al-Awalki

Anwar Al-Awalki, an American citizen affiliated with al-Qaeda, has been killed in a drone strike. This has set off a torrential debate about the legality of such strikes.

What's odd is that there is something worrisome about Al-Awalki -- but not what's getting most of the attention. It's not that he's a citizen. It's not that he was killed. It's rather a deeper lacuna in the laws of warfare and how they work (and don't work) in international conflicts against an enemy like al-Qaeda.

Let's start at the beginning, though. The argument being put out by folks like Glenn Greenwald is that liberals who were deeply concerned about President Bush's detainment policies should be apoplectic now that Obama has killed a man. There's obviously something intuitively plausible about this (killing is more serious than even indefinite imprisonment), but as a matter of law I think it's rather obviously wrong. In an armed conflict, the right of a party to kill opposing combatants is not controversial (it is subject to many restrictions, but none relevant here); however, if the combatant is captured, a plethora of new legal obligations open up.

Take a very uncontroversial example: The United States and Germany are engaged in a conventional war. An American soldier sees a German soldier. He shoots and kills him. Obviously, there is no legal problem with that. That's just war. One doesn't need a warrant or a trial, or even give an opportunity to surrender. On the other hand, if the soldier is captured, then a great many legal protections open up. One cannot, for example, summarily execute the person whom 10 minutes ago one would have had every legal right to kill. In fact, if one wants to charge them with a crime or impose any sort of punitive sanctions (POW confinement is considered non-punitive and for that reason standards attached to it are relatively generous), one has to afford considerable procedural protections. This, of course, is reflective of the peculiar status of war: it's legally sanctioned killing of individuals who have probably not committed (much less been convicted of) a crime.

Notably, nothing in the above argument turns on whether the German soldier was an American citizen or not. And it's not clear why it should -- a citizen who is engaged in armed conflict for a foreign party should, in the midst of such hostilities, be treated as a member of that armed group. And that seems reflected in both the letter and structure of the relevant law. First, as Matt Yglesias observes, one can lose one's citizenship already by "Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S." (8 U.S.C. 1481(a)(3)) -- it is more or less a failure of updating that this doesn't encompass non-governmental military actors engaged in hostilities against the U.S.. Second, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court in fact directly dealt with a situation where a German belligerent was also an American citizen.* Third, the Fifth Amendment doesn't restrict itself to citizens anyway (rather encompassing "persons") -- and that's good, for (as I'll explain below), the real worries about operations like this don't really become any less significant if the target is a non-citizen.

Andrew of Coffee House Talks tries to argue that because the Constitution carves out a specific crime of treason, an American citizen effectively can't be a military belligerent but must be charged with that particular crime. This is simply wrong: one can both be a combatant subject to the rules of warfare and a traitor. As explained above, once captured a person who has allegedly committed treason must be afforded constitutionally required procedural protections; but that does not mean they are somehow exempted from the normal (non-criminal) rules of war (the upshot of Andrew's argument is that every shot fired by the Union in the Civil War was illegal).

So the problem isn't that Al-Awalki was killed. And the problem isn't that Al-Awalki's a citizen. So what is the problem?

Two spring to mind. The first is whether Al-Awalki actually was a belligerent. Recall that this is basically the same worry that was most salient about the Bush administration's detainee policy -- there is no problem detaining actual enemy belligerents and neither is there a problem killing them, but there is a huge problem about doing those things to random innocent schmoes. But with Al-Awalki the controversy isn't really about that: nobody seems to dispute he was part of al-Qaeda, rather, the controversy seems to stem from his supposedly non-combat role. Now, as I understand it one can be part of an armed group while serving in a non-armed capacity (e.g., a radio operator or a quartermaster) and still be a valid target. But this is an area, though, where I simply don't know the relevant facts about Al-Awalki's role.

In any event, at best I can say that while Al-Awalki may not be the troublesome case, we can easily imagine a situation where the target denies being involved with al-Qaeda at all. And then we have a problem. In normal war, you know who the enemy is -- they wear a uniform. In fact, it's a breach of the laws of war not to. And that's because we want to make sure we can easily distinguish valid military targets from bystanders. But of course, al-Qaeda does not operate like that, and that makes things considerably more complex. We can say this is one more thing dickish about al-Qaeda and other terrorist organizations who do not distinguish themselves from civilian populations, but (while that's 100% true), it doesn't actually resolve the problem.

The second problem is that the above analysis does not have a spatial restriction. It could easily apply to alleged al-Qaeda belligerents on American soil. And this is difficult. On the one hand, it can't be the case that once someone reaches American soil, we have to treat them as a criminal and not a belligerent (see, e.g., the Civil War, and Quirin for that matter). On the other hand, if Al-Awalki had stepped off the plane in New York City, I think we'd all agree the proper response is to try and arrest him, not shoot him in the face.

The best answer I can give is that in areas where America exercises police power (i.e., American soil), there should an extremely high presumption in favor of using the police power to arrest alleged enemy belligerents, excepting only if they are currently engaged in hostilities. I don't know if a presumption of that variety is encoded in current positive law (the Posse Comitatus Act comes closest). But there are certainly excellent prudential reasons to prefer this -- aside from the importance above of ensuring we get the right guy, where do get said guy there's more intelligence to be gained from a live mind than a dead body.

* The citizen (Haupt) was executed. I think Quirin is problematic, not because Haupt was a citizen, but because once the belligerents were confined the procedural protections accorded were too lax.

Vicente Fox News

I think Mitt Romney has to be the odds-on favorite to win the GOP nomination. And when he does, this ad will guarantee that he'll be throttled amongst Latino voters.

Wednesday, September 28, 2011

Never Before Has the Supreme Court Been Asked To Uphold The Acronym "PPACA"....

Commenting on the United States' cert petition in the PPACA litigation, the Justice Department wrote:
Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.

Randy Barnett replies:
Each of those laws enjoyed bipartisan support when enacted; none were passed on a straight-line party vote. In fact, enacting so massive a social-welfare measure that affects every man, woman, and child in the United States in so partisan a manner was ... wait for it ... unprecedented.

For starters, I'm not sure what the argument is here. Does the Constitution change because Republicans threw a temper tantrum about this bill that was ... wait for it ... unprecedented in American legislative history? For that matter, I don't even know what it means to pass a law in a "partisan manner". It's hardly the case that Democrats acted to specifically prevent Republicans from joining the legislation, or locked them out of negotiations. Indeed, given the scope and breadth of GOP intransigence, I'd say they made (wait for it!) unprecedented efforts to include Republican voices. There are laws which were drafted specifically so as to "box out" the other party so they couldn't join on to an otherwise salutary policy accomplishment (e.g., The Unborn Victims of Violence Act). But PPACA wasn't anything like that.

But the entire subtext here is misleading. The Civil Rights Act was "bipartisan" primarily because America hadn't undergone the massive realignment whereby the South shifted from Democratic to Republican. But the fact that Southern Dixiecrats split ranks with their soon-to-be-ex-colleagues hardly implies anything about that law being less controversial at the time of passage. It just illustrates that we live in a political climate where party label more accurately reflects polarization.

Play Little Dumplings

This was a proposal to use recycled tires to create a children's playground for refugee children from Myanmar. As you can see, it appears to represent a terrifying squid-beast that the already-traumatized children are attempting to flee from as fast as their little legs can carry them.

Tuesday, September 27, 2011

DOMA Repeal Goes Bipartisan

The bill to repeal the Defense of Marriage Act (Freudian slip -- I started to write "Defense Against Marriage Act) has obtained its first Republican co-sponsor -- and she ain't no backbencher. It's Rep. Rep. Ileana Ros-Lehtinen (R-FL), chairwoman of the House Foreign Affairs Committee and two decade House veteran. Certainly, this is a far more joyous occasion then the last time I talked about Rep. Ros-Lehtinen on my blog!

Kudos to the Floridian, and congratulations to the gay rights movement for this significant step forward.

Race-Baiting is the Most Post-Racial Act of All

Shorter Roger Simon: The relevant locus point for thinking about race in America is a Black politician whose support amongst the Black community hovers around the Planck Constant. And you know he's "post-racial" because he likes to tell largely White audiences that most Black people can't think for themselves and remain "on the plantation."

Incidentally, Simon's general criticism of ethnically-affiliated institutions for historically marginalized groups (the column calls for the disbandment of the Congressional Black Caucus, which has "no justification any more, if [it] ever did.") would equally apply to, among other things, Cain's alma mater (Morehouse College) and the state of Israel.

Sunday, September 25, 2011

Sunday Punch Roundup

A bit of a rough weekend here, and unfortunately Jill is out of town.

* * *

Melissa Harris-Perry on why (some) White liberals are turning on Obama.

An interesting retrospective by the participants in the notorious "Stanford Prison Experiment."

After a Palestinian stone-thrower apparently caused a car accident which killed a Jewish settler and his infant child, settler militants are vowing revenge, with one extremist Rabbi proclaiming "There are no innocents in war."

Convicts told: Go to church or go to jail. It's not an Establishment Clause violation, the police chief argues, because you've got a choice!

The Marine Times cover on the repeal of DADT is, indeed, fantastic.

I thought the Herman Cain fad had passed, but apparently nobody thought to tell Florida.

This is from a few days back, but the new Union of Jewish Students (UK) campaign for a two state solution respecting the rights and dignity of Israelis and Palestinians alike looks very cool. I'm dubious that it will have any impact on campus radicals, but hopefully it can make a dent on the middle.

US gives high-powered military equipment to Mid-East ally fighting terrorist organization which seeks an independent homeland for a stateless, oppressed people.

Looks like Congressional Republicans have been reading my Comment.

Spain Recognizes Israel as Jewish State

In what is seen as a shocking turnaround, Spain -- traditionally considered one of the most pro-Palestinian EU states -- has announced that it recognizes Israel "as the embodiment of the project to create a homeland for the Jewish people." In accordance with this, Spain also asserted that the Palestinian refugee problem should be resolved in a way that does not threaten Israel's Jewish demographic character.

This comes in the midst of an aggressive push by the Palestinian Authority for statehood recognition at the UN. One of the reasons the UN bid bothers me is that the UN -- being institutionally biased -- is a forum in which Palestinians don't have to concede anything to be given everything they want. It is an end-run around negotiations, because a considerable portion of the UN membership body doesn't think Israel has rights in the first place. It's effectively cost-free for Palestine, as it garners a huge (albeit symbolic) victory in exchange for nothing on their end.

But Spain's action suggests that some of the more prominent states supporting Palestinian statehood are going to tell the PA what it needs to hear -- that is, that a final status agreement is going to include concessions that respect Jewish and Israeli rights too. In others words, if the PA is going to press the issue, every issue has to be pressed -- including those Palestinians would like not to think about.