Obviously good riddance. The editor, Andrew Adler of the Atlanta Jewish Times, faced a torrent of criticism from all quarters for his repulsive column, including from the AJC and ADL, as well as finding his paper cut loose by the Jewish Federation of Greater Atlanta until Adler left the paper. Adler, who owned as well as managed the newspaper, is also looking to sell it to another owner to complete his withdrawal.
Oh, and since I've been hearing murmurings that Adler isn't being investigated by the Secret Service because Jew Jew special treatment Jew, it's worth noting that he is, in fact, being investigated by the Secret Service. Which is appropriate, but it is almost certainly the case that he didn't do anything illegal -- just repulsive (abstract advocacy of violence, particularly against public figures, is protected by the First Amendment. Unless he had an actual conspiracy in motion, which seems more than a little far-fetched, his column falls into that category).
Showing posts with label assassinations. Show all posts
Showing posts with label assassinations. Show all posts
Monday, January 23, 2012
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.
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.
Wednesday, February 24, 2010
LA Times Gives Dubai Assassination Quick Hits
I almost missed the pun ... I assure you, it's unintended.
The LA Times has a mini-symposium on the legality and morality of the Dubai assassination of a top Hamas leader (presumed, but not proven, to be done by Israel). It's very interesting reading.
With a bit of critical distance from my initial reaction, I think my view on the matter is changing slightly. What I wrote then, and what I still believe, is that within the facial framework by which Israel is being evaluated upon, this assassination was an unqualified success: one terrorist eliminated, no civilian casualties, no civilian hardship. It's also not particularly scalable, which is why it's unreasonable to base an entire security apparatus around it. But more importantly, it's somewhat annoying to see folks who last year were holding Israel to unreasonable standards regarding the degree of care it had to take regarding civilian casualties being equally aggrieved by this operation. It really feeds into my broader intuition that -- no matter what they protest -- the real objection is Israel doing anything to defend itself at all.
That being said, I do think there are perfectly legitimate concerns about undertaking these operations. The sovereignty violation bothers me. The passport theft bothers me even more. And that doesn't get into the diplomatic hellstorm that develops when you forge passports from your nominal allies. Bradley Burston's frustration is not unwarranted.
What I think is really going on here is the continued dearth of sophisticated visions regarding what a progressive, human rights oriented law of war should look like in the era of terrorism and counter-insurgency. Instead, we have visceral reactions tinted by our pre-conceptualizations of what (and who) constitutes good and evil, and then build out principles to match. And lo and behold, such an approach doesn't create optimal incentives. But when we keep changing the rules in midgame, it can't come as a surprise when people begin to suggest there are no rules at all. And that, unsurprisingly, is even worse.
The LA Times has a mini-symposium on the legality and morality of the Dubai assassination of a top Hamas leader (presumed, but not proven, to be done by Israel). It's very interesting reading.
With a bit of critical distance from my initial reaction, I think my view on the matter is changing slightly. What I wrote then, and what I still believe, is that within the facial framework by which Israel is being evaluated upon, this assassination was an unqualified success: one terrorist eliminated, no civilian casualties, no civilian hardship. It's also not particularly scalable, which is why it's unreasonable to base an entire security apparatus around it. But more importantly, it's somewhat annoying to see folks who last year were holding Israel to unreasonable standards regarding the degree of care it had to take regarding civilian casualties being equally aggrieved by this operation. It really feeds into my broader intuition that -- no matter what they protest -- the real objection is Israel doing anything to defend itself at all.
That being said, I do think there are perfectly legitimate concerns about undertaking these operations. The sovereignty violation bothers me. The passport theft bothers me even more. And that doesn't get into the diplomatic hellstorm that develops when you forge passports from your nominal allies. Bradley Burston's frustration is not unwarranted.
What I think is really going on here is the continued dearth of sophisticated visions regarding what a progressive, human rights oriented law of war should look like in the era of terrorism and counter-insurgency. Instead, we have visceral reactions tinted by our pre-conceptualizations of what (and who) constitutes good and evil, and then build out principles to match. And lo and behold, such an approach doesn't create optimal incentives. But when we keep changing the rules in midgame, it can't come as a surprise when people begin to suggest there are no rules at all. And that, unsurprisingly, is even worse.
Thursday, February 18, 2010
Very Targeted Assassinations
One major shift we've seen from the Bush to Obama administration is an increase in targeted strikes successfully killing al-Qaeda terrorists. Most people consider this a good thing, though a few die-hard Obama haters are annoyed that we aren't capturing and sending them to Gitmo instead. But by and large, we consider this an example of a step forward in the war against al-Qaeda.
The recent assassination of Hamas leader Mahmoud al-Mabhouh, possibly (though not assuredly) at the hands of Israel, has not raised similar cries of pleasure. Indeed, it seems to be seen as some sort of mini-scandal. This despite the fact that this manner of eliminating a known terrorist resulted in precisely zero civilian casualties, property damage, or serious negative effect whatsoever. I seriously object to some of the policies endorsed here, but Sonny Bunch has a point when he writes:
I don't endorse torturing anybody, and I don't endorse recklessly lobbing missiles at terrorists without regard to the surrounding civilian population (though that doesn't mean no collateral damage is acceptable). Nonetheless, from within the framework folks say they judge Israel within (accepting its right to self-defense, but urging it to do more to avoid collective punishment and civilian hardship), this really was the ideal killing. At least, Alan Dershowitz writes, that was seemingly Judge Goldstone's view on things:
Not putting any words in Judge Goldstone's mouth -- he may have no problem with the killing of Mr. Mabhouh -- but the global community hardly seems to be taking this stance. One gets the distinct sense it's damned if you do, damned if you don't.
The recent assassination of Hamas leader Mahmoud al-Mabhouh, possibly (though not assuredly) at the hands of Israel, has not raised similar cries of pleasure. Indeed, it seems to be seen as some sort of mini-scandal. This despite the fact that this manner of eliminating a known terrorist resulted in precisely zero civilian casualties, property damage, or serious negative effect whatsoever. I seriously object to some of the policies endorsed here, but Sonny Bunch has a point when he writes:
I mean, look, I’m all in favor of lobbing missiles at terrorists from airplanes; it’d be nice to capture them alive and get some info out of them via harsh interrogations, but a Tomahawk up the keister works just as well as far as I’m concerned. But then you get all the hemming and hawing about “Oh, we’re just creating more terrorists when we accidentally kill an innocent bystander.” Well, there’s none of that here, is there? The guy was traced to his hotel room, zapped with a stun gun, and smothered to death. Quick and easy. If only all terrorists could meet the same fate.
I don't endorse torturing anybody, and I don't endorse recklessly lobbing missiles at terrorists without regard to the surrounding civilian population (though that doesn't mean no collateral damage is acceptable). Nonetheless, from within the framework folks say they judge Israel within (accepting its right to self-defense, but urging it to do more to avoid collective punishment and civilian hardship), this really was the ideal killing. At least, Alan Dershowitz writes, that was seemingly Judge Goldstone's view on things:
The Goldstone report suggests that Israel cannot lawfully fight Hamas rockets by wholesale air attacks. Richard Goldstone, in his interviews, has suggested that Israel should protect itself from these unlawful attacks by more proportionate retail measures, such as commando raids and targeted killing of terrorists engaged in the firing of rockets. Well, there could be no better example of a proportionate, retail and focused attack on a combatant who was deeply involved in the rocket attacks on Israel, than the killing of Mahmoud al-Mabhouh. Not only was Mabhouh the commander in charge of Hamas' unlawful military actions at the time of his death, he was also personally responsible for the kidnapping and coldblooded murder of two Israeli soldiers several years earlier.
Not putting any words in Judge Goldstone's mouth -- he may have no problem with the killing of Mr. Mabhouh -- but the global community hardly seems to be taking this stance. One gets the distinct sense it's damned if you do, damned if you don't.
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