you want me to whack a guy? off a guy? whack off a guy? ’cause I’m married, you know.

While everybody was rejoicing over the well-deserved face-shooting of Bin Laden, the U.S. government was quietly trying for a deuce by setting the drones on Anwar Al-Awlaki. The Times has the story:

A missile strike from an American military drone in a remote region of Yemen on Thursday was aimed at killing Anwar al-Awlaki, the radical American-born cleric believed to be hiding in the country, American officials said Friday.

The attack does not appear to have killed Mr. Awlaki, the officials said, but may have killed operatives of Al Qaeda’s affiliate in Yemen.


So. Sometimes I feel like I should change the name of this blog to “GreenwaldWatch,” or maybe “Greenwald Matters For America,” given how much I quote and comment on Salon‘s most contentious columnist. But for better and for worse, Glenn Greenwald is a man who takes strong and forceful stands on the issues of the day, which makes him both quotable and easy to argue with. He doesn’t couch his arguments in any of those soft, wishy-washy nuances that other columnists get tangled up in, which… you know… makes for an entertaining read, if nothing else.

But sometimes the man is just categorically wrong.

[T]he Fifth Amendment to the U.S. Constitution expressly guarantees that “no person shall be deprived of life without due process of law” — and provides no exception for war….

This is, of course, preposterous. “No exception for war”? Are we to believe that no one can be killed in war without due process? Obviously not. Narrow it down, Greenwald:

There are certain civil liberties debates where, even though I hold strong opinions, I can at least understand the reasoning and impulses of those who disagree; the killing of bin Laden was one such instance. But the notion that the President has the power to order American citizens assassinated without an iota of due process — far from any battlefield, not during combat — is an idea so utterly foreign to me, so far beyond the bounds of what is reasonable, that it’s hard to convey in words or treat with civility.

Let’s get into this. Bracket the words “American citizen” for a moment. Imagine it’s World War II and the U.S. kills Tojo in a bombing raid. Tojo is “far from any battlefield,” asleep in his bed. Do you care? No. The man spends his days planning American deaths. It’s implicit in the idea of war. To demand that a court of law convict him is preposterous, not least because he’s clearly not going to be around to participate in his own defense.

Fine, you say — but that’s a war between nation-states. The boundaries are clear. What about our so-called “War On Terror”? Surely things are more complicated there, with no neat divisions between combatants and civilians. And haven’t I said, on this very blog, that our approach to terrorism should be modeled on police work rather than war?

Yes I have. And nobody would argue, I think, that police are not empowered to kill, regardless of the due process clause.

Imagine a hostage situation — a crazy bank robbery out of a Hollywood movie, let’s say. The helicopters are hovering, uniformed officers have barricaded the roads, the SWAT team is standing by, the hostage negotiator has been given a bullhorn, and the snipers — the blessed snipers! what would we do without them? — are standing by. And a sniper sees through his scope that there’s a man in the bank on his knees, and another man with a gun to the first man’s head. The sniper would, of course, be justified in killing the man with the gun. Whether he should do so, of course, is another matter. Perhaps taking a shot now will endanger the other hostages, subject them to retaliation or whatever. Perhaps the man with the gun is also wearing an explosive belt. The point is that the sniper is legally justified the use of force if circumstances permit it.

Now imagine that our sniper has super-hearing. (This is a Hollywood movie, after all. People can have superpowers.) And he can hear that the man with the gun is saying he’s not sure he wants to kill the man on the floor, that he’s afraid of the consequences for his soul. And then our sniper hears a third man, standing right next to the man with the gun, arguing passionately that the first man deserves to die, and that the man with the gun should absolutely pull the trigger — that it would be a blessed act, a morally righteous act, etc., etc.

Now — may the sniper fire on the third man? May he fire on the man who is the proximate cause of murder — who directly enables murder by lowering the natural inhibitions of the murderer?

I don’t know. I think it’s a difficult question. But it’s certainly worthy of more thought than this characterization:

There simply is no more basic liberty than the right to be free from Presidential executions without being charged with — and then convicted of — a crime: whether it be treason, Terrorism, or anything else.


Greenwald cites Scalia’s opinion in Hamdi v. Rumsfeld on the subject of due process:

The Founders inherited the understanding that a citizen’s levying war against the Government was to be punished criminally. The Constitution provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”; and establishes a heightened proof requirement (two witnesses) in order to “convic[t]” of that offense. Art. III, §3, cl. 1.

Fair enough. But this sort of makes it sound like Al-Awlaki is blogging from his mom’s basement in a suburb of Des Moines, and President Obama could arrest him and charge him with a crime any time he liked. But Al-Awlaki is not in Des Moines; he’s in Yemen. Should we send the SEALs in to get him? Maybe, but that’s a risky operation with little guarantee of success. (Even the Bin Laden operation did not go smoothly; one of the helicopters used in the raid was destroyed.) Should we try to extradict him? Good luck.

Could he be tried for treason in absentia? Could we backdoor in some sort of punitive assassination that way? No. The Supreme Court has repeatedly ruled that trial in absentia is unconstitutional:

Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution.


No due process is possible in this situation, and we cannot convict the man of treason. Maybe in the future, but not now.

But the drone strikes against Al-Awlaki, whatever one thinks of them (I’m on the fence), are not intended as a punishment for the crime of treason. They are intended to stop him from inciting further violence against Americans. Al-Awlaki is the guy shouting “Shoot him!” in the lobby of the bank. When you’re doing that, I think you’ve got much less recourse to due process, and the sniper on the roof gets a certain amount of latitude to make the call on whether you live or die.

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