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Obama Orders Americans Killed

kill-em-allAmerican special operators and intel types are teaming up with Yemeni forces to kill bad guys there, Dana Priest reports.  But Glenn Greenwald is most interested in the third paragraph:

As part of the operations, Obama approved a Dec. 24 strike against a compound where a U.S. citizen, Anwar al-Aulaqi, was thought to be meeting with other regional al-Qaeda leaders. Although he was not the focus of the strike and was not killed, he has since been added to a shortlist of U.S. citizens specifically targeted for killing or capture by the JSOC, military officials said.

Priest gives some more background toward the end of the long piece:

After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose “a continuing and imminent threat to U.S. persons and interests,” said one former intelligence official.

The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, “it doesn’t really change anything from the standpoint of whether we can target them,” a senior administration official said. “They are then part of the enemy.”

Both the CIA and the JSOC maintain lists of individuals, called “High Value Targets” and “High Value Individuals,” whom they seek to kill or capture. The JSOC list includes three Americans, including Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added.

Greenwald is outraged by this:

Just think about this for a minute.  Barack Obama, like George Bush before him, has claimed the authority to order American citizens murdered based solely on the unverified, uncharged, unchecked claim that they are associated with Terrorism and pose “a continuing and imminent threat to U.S. persons and interests.”  They’re entitled to no charges, no trial, no ability to contest the accusations.  Amazingly, the Bush administration’s policy of merely imprisoning foreign nationals (along with a couple of American citizens) without charges — based solely on the President’s claim that they were Terrorists — produced intense controversy for years.  That, one will recall, was a grave assault on the Constitution.  Shouldn’t Obama’s policy of ordering American citizens assassinated without any due process or checks of any kind — not imprisoned, but killed — produce at least as much controversy?

He anticipates the obvious retort:

Obviously, if U.S. forces are fighting on an actual battlefield, then they (like everyone else) have the right to kill combatants actively fighting against them, including American citizens.  That’s just the essence of war.  That’s why it’s permissible to kill a combatant engaged on a real battlefield in a war zone but not, say, torture them once they’re captured and helplessly detained.

Fair enough. But, he continues:

But combat is not what we’re talking about here.  The people on this “hit list” are likely to be killed while at home, sleeping in their bed, driving in a car with friends or family, or engaged in a whole array of other activities.  More critically still, the Obama administration — like the Bush administration before it — defines the “battlefield” as the entire world.  So the President claims the power to order U.S. citizens killed anywhere in the world, while engaged even in the most benign activities carried out far away from any actual battlefield, based solely on his say-so and with no judicial oversight or other checks.  That’s quite a power for an American President to claim for himself.

Drawing the line is difficult, indeed.  Most obviously, if said accused terrorist were located within the borders of the United States, it would be clearly illegal to simply assassinate him. (Provoking him into defending himself by kicking in his door late at night, thus necessitating killing him, would of course be permissible.) But that would be true, I should think, of Osama bin Laden himself, much less an American citizen.

On the other hand, we blow up suspected terrorists — or, even Taliban leaders — in commando raids and drone attacks in places like Pakistan without thinking about it.  Indeed, according to an official quoted in Priest’s report, “There have been more such strikes in the first year of Obama’s administration than in the last three years under President George W. Bush.”  No one seems to be complaining about the president’s authority to do this.  (Many question whether it’s a sound strategy, of course, but that’s a different issue entirely.)

Would it make any difference if the accused terrorist had American citizenship?   I’m not so sure.

Obviously, this is an awesome power and one that could easily be abused.  But it’s not at all clear where the line should be drawn.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. john personna says:

    I think we are into high Orwellian language when “kill or capture” doesn’t imply “assassination.”

    If the order had been “apply necessary force to capture” then it would be consistent with a police action, and not an assassination. We understand what happens to people who resist “necessary force.”

    (I think drone attacks on homes are morally dubious, regardless of whether US citizens are present.)

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  2. James Joyner says:

    Right. Is someone arguing that targeted killings aren’t assassinations?

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  3. john personna says:

    I was picking up on your comment that assassination would be “clearly illegal.” As a culture we are apparently allowing ourselves some leeway, as we add “to a shortlist of U.S. citizens specifically targeted for killing or capture.”

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  4. ole_Sarge says:

    Sorry, citizenship doesn’t matter, you’re an enemy combatant at best, a traitor at worse.

    From the sound of it, the guy rejected us first… good, no longer a citizen then.

    We are at WAR people. They declared it, and they are (most of the time) behaving in a matter that reflects that “they” ar at war with us. It only takes one side to declare “war” and these people DO NOT play by the rules in the Geneva Convention.

    It’s simple, you shoot me, I get to shoot you, may the best shot kill. You kill me, then you got others to content with, good luck.

    Oh and that out dated Geneva Convention rule about NOT targeting the “Heads of State” (the assassination cause some liberals refer to) it’s because you need “someone” to surrender forces.

    The whole business of “assassination” originated with the Muslims back during the Crusades, which were also a “war on terrorism,” in the day.

    The original assassins were high on dope (poppies or something) and sent on “suicide missions” to kill key-personnel (mil-speak for commanding officers) OFF the field of battle in their camps.

    A single person could do, what an army could not.

    That’s the trouble with irregular warfare, no one “plays” by the rules.

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  5. PD Shaw says:

    Greenwald I believe doesn’t think we are, or can be, at war with a non-state actor, which for those who agree makes everything about U.S. actions absurd.

    If you do operate from the assumption that we are at war with al-Qaeda, then targeting recognized members of the group makes complete sense. You don’t go to war with Yemen if you can help it, particularly when your objectives are an identifiable group. Proportionality and distinction are elements of conducting a just war.

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  6. yetanotherjohn says:

    One of the very real issue during the Vietnam war was our defining rules of where we would and would not attack. This of course led to the enemy exploiting the resulting sanctuaries to our detriment.
    Let’s take the rule Greenwald seems to be suggesting. ‘US forces should not kill US citizens unless those US citizens are actively fighting our forces.’
    What would be the likely enemy response? To keep a US citizen near every high value target. Instant force field.
    3 Americans on the list does not seem to me to be an uncontrolled response. On the other hand, however much sense or good idea it still must pass constitutional muster. Given the low number, it would seem to me that charges of treason could be brought, at least two witness brought forth and a court order for the death of the traitor would fit in the constitution. That just leaves the nature of the court and rules for same which is a whole other can of worms.

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  7. Social comments and analytics for this post…

    This post was mentioned on Twitter by JamesOTB: Obama Orders Americans Killed: American special operators and intel types are teaming up with Yemeni forces to kil… http://bit.ly/cvUZu9

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  8. Alan Kellogg says:

    Greenwald,

    You don’t want to get killed while fighting against the United States, don’t fight against the United States.

    BTW, the world is the battlefield. There is no safe ground, no safe zone, no safe word. You are open to attack wherever you are. The goal is to make you feel unsafe wherever you are, and to encourage you to support measures and efforts that will degrade your rights in the name of security. The long term goal being to get you and your fellow Americans to adopt the Moslem faith and Moslem law so the attacks against you will cease. That is the long term goal of the Jihadist, to get your surrender to his will. That and nothing else.

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  9. Alex Knapp says:

    Sorry, citizenship doesn’t matter, you’re an enemy combatant at best, a traitor at worse.

    The problem is, how do you know they’re a member of al-Qaeda. Are you just going to accept the government’s say-so without evidence?

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  10. James Joyner says:

    The problem is, how do you know they’re a member of al-Qaeda. Are you just going to accept the government’s say-so without evidence?

    That’s always the rub. But, of course, we do it every day in Pakistan.

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  11. Brian Knapp says:

    But, of course, we do it every day in Pakistan.

    Should we?

    BTW, the world is the battlefield. There is no safe ground, no safe zone, no safe word. You are open to attack wherever you are. The goal is to make you feel unsafe wherever you are, and to encourage you to support measures and efforts that will degrade your rights in the name of security.

    Isn’t the power to kill American citizens without trial a degradation of rights?

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  12. James Joyner says:

    Should we?

    I think it’s tactically unwise, since fighting with drones is going to inevitably produce civilian casualties. But I don’t have any moral problem with targeting foreign bad guys for killing when we’re at war with them.

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  13. Franklin says:

    Well as long as this policy is in effect, I might as well send some plane tickets to Dick Cheney. I think he needs a relaxing vacation in a foreign country …

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  14. PD Shaw says:

    There are no American Constitutional rights in Yemen. There are no federal courts operating in Yemen to adjudicate whatever rights do exist.

    I’ve always liked Eric Posner’s “modest proposal” that judges be embedded in operating units to determine what laws apply to given situations or persons. I picture a man with powdered whig and black robes taking a hill under gunfire with army grunts, and shouting over a cross-fire of bullets: “Do you admit or deny that you are giving aid and comfort to the enemy of these here forces?”

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  15. Zelsdorf Ragshaft III says:

    James as a counter point, has not al Qaeda attacks on the United States and its interests led to civilian casualties? Were not Bonnie and Clyde dealt with without the benefit of a trial? How did the trial of John Dillinger go? Outlaws are dealt with the best we can. There is no real way to put these people on trial, but their activities must be curtailed. Which do you think works best? Telling them to stop, or ending their career.

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  16. But it’s not at all clear where the line should be drawn.

    That doesn’t mean the solution is to not draw a line at all.

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  17. 11B40 says:

    Greetings:

    My favorite high school basketball coach used to say, “The opposition determines our tactics.”

    Back in my infantry days, I used to tell my new soldiers this parable.

    Two young riflemen were having the age-old philosophical discussion about where to shoot those who would oppose them. One was a “head-shooter”; the other preferred the “center-mass” (torso). The head-shooter asserted that if you hit him, he’s done. The center-mass guy liked the larger target area. As they were going back and forth, their Platoon Sergeant came by. “Hey, Sarge,” called out the head-shooter, “where do you like to shoot the bad guys?”

    “In the back,” he replied.

    As many as you can, as often as you can, anywhere and any way you can.

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  18. Dave Schuler says:

    I’ve always liked Eric Posner’s “modest proposal” that judges be embedded in operating units to determine what laws apply to given situations or persons.

    I’ve made the same suggestion myself. I would also point out that ruling that such determinations should be made in the field is implied consent to participate in such an operation.

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  19. Brian Knapp says:

    I think it’s tactically unwise, since fighting with drones is going to inevitably produce civilian casualties. But I don’t have any moral problem with targeting foreign bad guys for killing when we’re at war with them.

    If the production of civillian casualties is inevitable in this scenario, then isn’t there an inherent moral barrier to pursing the action?

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  20. James Joyner says:

    @PD Shaw “There are no American Constitutional rights in Yemen.”

    I don’t think that’s right. Certainly, if the US Govt went after ordinary criminals in foreign countries and simply targeted them for murder, there’d be an uproar. IANAL but I’m pretty sure it’d be illegal, too.

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  21. James Joyner says:

    @Zelsdorf Ragshaft III

    Were not Bonnie and Clyde dealt with without the benefit of a trial? How did the trial of John Dillinger go? Outlaws are dealt with the best we can.

    Uh, no. Outlaws — or, as I like to call them, presumptively innocent American citizens accused by their government of crimes — are accorded very specific rights in the Constitution.

    Bonnie and Clyde were murdered by people acting under color of authority, in rather clear violation of their rights as citizens. Dillinger was killed in a gunfight with police, a different matter entirely.

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  22. James Joyner says:

    @Brian Knapp

    If the production of civillian casualties is inevitable in this scenario, then isn’t there an inherent moral barrier to pursing the action?

    There are moral choices to be made, yes. But innocents are inevitably killed in war. Given just cause and just conduct, war is not inherently immoral.

    Tactical choices have to be made with proportionality in mind. The higher level the leader being targeted, the higher the acceptable risk to noncombatants.

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  23. Brian Knapp, how would you have planned D-Day with a requirement of no civilian casualties?

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  24. PD Shaw says:

    James: Certainly there would be an uproar, and perhaps a President who stood behind such a policy might be impeached. The Congress also would have an oversight role of the military spending it is providing. The hypothetical of assassinating U.S. citizens for criminal offenses is so outrageous that I trust the checks and balances of the political system.

    But the rights being tossed around here, the right to an independent determination of your status as an enemy combatant, are non-existent in a foreign conflict. Where is the U.S. federal court in Yemen?

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  25. Michael Reynolds says:

    Just don’t target the American. Target the guy standing next to him.

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  26. Brian Knapp says:

    Brian Knapp, how would you have planned D-Day with a requirement of no civilian casualties

    I’m certainly not qualified to have planned such a thing, but I’m not sure that it would have been possible.

    However, I think that the combatant to civilian casualty ratio at Normandy was much preferred to that of Iraq/Afghanistan.

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  27. James Joyner says:

    But the rights being tossed around here, the right to an independent determination of your status as an enemy combatant, are non-existent in a foreign conflict. Where is the U.S. federal court in Yemen?

    These decisions aren’t being made by corporals in the field but by executives in Washington.

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  28. PD Shaw says:

    These decisions aren’t being made by corporals in the field but by executives in Washington.

    I assume in the most general sense, the decision is either being made by the President or his A.G. I think that’s appropriate, conducting military campaigns in countries we’re not at war with can have wide repercussions on U.S. foreign policy that shouldn’t be left to corporals.

    But ultimately I don’t think Obama approving the killing of a U.S. citizen from the White House raises any Constitutional issues other than whether the primary purpose of that killing is for national security reasons (not criminal punishment). You could have the President convene some sort of FISA court to rubber-stamp his determination that citizen x is an enemy combatant against whom military force has been authorized. I certainly don’t believe that would satisfy critic’s complaint that citizen x is entitled to an independent determination that he is not an enemy combatant. He or she certainly wouldn’t have had an opportunity to rebut the charges.

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  29. I don’t have the numbers for Normandy handy, but IIRC, perhaps two civilians died in WWII for every uniformed soldier/sailor/airman/marine that was killed.

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  30. Brian Knapp says:

    See this link for casualties for Operation Iraqi Freedom.

    Military (includes all nations except ISF)=4,692
    Iraqi Civilians=46,815

    So, about 10 for every one soldier. With Iraqi security force(8,051 casualties), it is more like 1:3.7.

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  31. sam says:

    @JJ

    Obviously, this is an awesome power and one that could easily be abused. But it’s not at all clear where the line should be drawn.

    Agree. The problem with Glen’s argument is that it makes it sound as if the decision to target is one notch above whim. Perhaps I’m naive, but I credit our leadership will a little more gravity than that where the taking of lives is concerned. And there’s a fundamental silliness in this:

    So the President claims the power to order U.S. citizens killed anywhere in the world, while engaged even in the most benign activities carried out far away from any actual battlefield, based solely on his say-so and with no judicial oversight or other checks.

    As I said, I don’t believe these decisions are arrived at lightly. Indeed, I imagine the intel reviewed and reviewed…and reviewed. Especially if the person is an American citizen suspected of engaging in terrorism against us or our allies, which, keep in mind, is killing us. If the evidence is sufficiently strong to compel the attempt on the life of the target, whether he or she is engaged in a benign activity is really beside the point. Unfortunately, in this kind of warfare, you take targets where you can. As far as “benign activities” go, would Glen object if we had good intel that al-Zawahri was in the habit of taking a crap everyday at 0530 in the local outhouse and, acting on that intel, we sent a Predator over to help him loosen his bowels. I think not.

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  32. Tlaloc says:

    As I said, I don’t believe these decisions are arrived at lightly.

    Belief is great. For things that matter though accountability and oversite are a HELL of a lot better.

    Would you be fine with “I believe cops won’t arrest people lightly so there’s really no reason for a trial…”

    Hopefully not.

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  33. I’m not sure that totals that are three orders of magnitude apart can accurately be compared in this manner, and to the extent they can I think you have to distinguish between the war phase in Iraq (which was very short) and the insurgent phase (which was much more longer and bound to be more lethal to non-combatants due to its very nature.

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  34. sam says:

    Would you be fine with “I believe cops won’t arrest people lightly so there’s really no reason for a trial…”

    Hopefully not.

    There is a difference, I maintain, between a common criminal engaged in activities within the US and someone outside the US planning mass murder of US citizens. Our attitude and actions toward the former must necessarily differ from those toward the latter.

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  35. Tlaloc says:

    There is a difference, I maintain, between a common criminal engaged in activities within the US and someone outside the US planning mass murder of US citizens.

    Certainly there is, but your statement assumes certainty that never really exists. We almost never know beyond a reasonable doubt that someone outside the US is planning mass murder unless they either cop to it or we catch them in the attempt. Hence why killing them while they are, say, in the bath is troublesome.

    Pick any 50 adjectives that come to mind to describe government, the intelligence agencies, or the military and “infallible” is unlikely to be among them.

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  36. Beyond a reasonable doubt is not a standard military planners have the luxury of using.

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  37. steve says:

    The government that cannot do anything right is often seen as much more competent when it comes to the decision to kill someone. Not sure why.

    Steve

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  38. […] UPDATE II:  James Joyner argues that this “hit list” policy is not much different than our drone attacks in Pakistan, which Obama has substantially escalated, and that “no one seems to be complaining about the President’s authority” to kill suspected Terrorists there.  Actually, there are substantial questions about the legality of those drone attacks, though the complete secrecy behind which the program operates makes those questions very difficult to address.  Beyond that, though, there’s a substantial difference between a government which (a) targets foreign nationals whom it claims are part of a enemy organization and (b) targets its own citizens for assassination without any due process.  They both have substantial legal and moral problems, and killing innocent foreigners is obviously no better than killing one’s own innocent citizens, but (a) is at least a fairly common act of war, whereas (b) — as the U.S. Government itself has long argued — is a hallmark of tyranny.  There’s a much greater danger from allowing a government to target its own citizens for extra-judicial killings. […]

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  39. Dave Schuler says:

    However, I think that the combatant to civilian casualty ratio at Normandy was much preferred to that of Iraq/Afghanistan.

    That’s a very interesting statement. Between 15,000 and 20,000 French civilians were killed, mostly by Allied bombing, during the invasion of Normandy. How many civilians have been killed in Afghanistan? What is the “combat to civilian casualty ratio” there? And how do you know?

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  40. Dave Schuler says:

    BTW, the same link lists the German casualties at being between 4,000 and 9,000. In other words, twice as many civilians were killed as enemy combatants.

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  41. swbarnes2 says:

    Come now, cite the D-day page accurately. There is a difference between the number of people killed on D-day itself, and the number killed in the whole battle of Normandy.

    Here is the whole quote from your link:

    “The total German casualties on D-Day are not known, but are estimated as being between 4000 and 9000 men.

    Naval losses for June 1944 included 24 warships and 35 merchantmen or auxiliaries sunk, and a further 120 vessels damaged.

    Over 425,000 Allied and German troops were killed, wounded or went missing during the Battle of Normandy. This figure includes over 209,000 Allied casualties, with nearly 37,000 dead amongst the ground forces and a further 16,714 deaths amongst the Allied air forces. Of the Allied casualties, 83,045 were from 21st Army Group (British, Canadian and Polish ground forces), 125,847 from the US ground forces. The losses of the German forces during the Battle of Normandy can only be estimated. Roughly 200,000 German troops were killed or wounded. The Allies also captured 200,000 prisoners of war (not included in the 425,000 total, above). During the fighting around the Falaise Pocket (August 1944) alone, the Germans suffered losses of around 90,000, including prisoners.

    Today, twenty-seven war cemeteries hold the remains of over 110,000 dead from both sides: 77,866 German, 9386 American, 17,769 British, 5002 Canadian and 650 Poles.

    Between 15,000 and 20,000 French civilians were killed, mainly as a result of Allied bombing. Thousands more fled their homes to escape the fighting.”

    So it appears that the 15-20K figure is better compared to deaths over the whole battle, not just the first day. That’s be 10:1 enemy soldiers to civilians

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  42. […] UPDATE II:  James Joyner argues that this “hit list” policy is not much different than our drone attacks in Pakistan, which Obama has substantially escalated, and that “no one seems to be complaining about the President’s authority” to kill suspected Terrorists there.  Actually, there are substantial questions about the legality of those drone attacks, though the complete secrecy behind which the program operates makes those questions very difficult to address.  Beyond that, though, there’s a substantial difference between a government which (a) targets foreign nationals whom it claims are part of a enemy organization and (b) targets its own citizens for assassination without any due process.  They both have substantial legal and moral problems, and killing innocent foreigners is obviously no better than killing one’s own innocent citizens, but (a) is at least a fairly common act of war, whereas (b) — as the U.S. Government itself has long argued — is a hallmark of tyranny.  There’s a much greater danger from allowing a government to target its own citizens for extra-judicial killings. discuss this topic in the forums – (1) Posts By Brandon Dean in News  .::. Tags: assassination, presidential assassination (Add your comment) You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site. […]

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  43. Dave Schuler says:

    Fair enough. I misread the information.

    However, whether the ratio is 10:1, 3:1, or 1:3 is not particularly relevant to the point I’m making. I’m skeptical of the entire notion on a couple of grounds.

    First, if you’re going to make your moral decisions based on a number like the ratio of combatants killed to civilians killed, you’ve got to have a way of obtaining accurate information. We don’t. All of the prospective resources are interested.

    Second, combatants killed to civilians killed is completely inadequate as a measuring tool. You must weigh the value of the objective and the means being used against the risks of civilian damage and casualties. That’s a lot broader and harder to measure than the ratio being suggested, however handy that might be.

    That kind of evaluation can only be made down at the tactical and to some degree at the strategic level not 12,000 miles away at the objectives/grand strategic level. We simply don’t have the information to discuss it and must rely on the judgment and good faith of those who represent us in the field once we have committed to a set of objectives or a grand strategy. Of course, we must be willing to take action if our confidence is violated but we’ve got to be willing to have a certain amount of faith.

    That, among many other reasons, is why I am predisposed to avoid the use of force except under extremely dire circumstances and when it is unavoidable.

    This is a subject on which James is able to comment much more authoritatively than I. Maybe we can attract his attention.

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  44. […] UPDATE II:  James Joyner argues that this “hit list” policy is not much different than our drone attacks in Pakistan, which Obama has substantially escalated, and that “no one seems to be complaining about the President’s authority” to kill suspected Terrorists there.  Actually, there are substantial questions about the legality of those drone attacks, though the complete secrecy behind which the program operates makes those questions very difficult to address.  Beyond that, though, there’s a substantial difference between a government which (a) targets foreign nationals whom it claims are part of a enemy organization and (b) targets its own citizens for assassination without any due process.  They both have substantial legal and moral problems, and killing innocent foreigners is obviously no better than killing one’s own innocent citizens, but (a) is at least a fairly common act of war, whereas (b) — as the U.S. Government itself has long argued — is a hallmark of tyranny.  There’s a much greater danger from allowing a government to target its own citizens for extra-judicial killings. […]

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  45. […] Obama Orders Americans Killed (outsidethebeltway.com) […]

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  46. The issue really boils down to whether the otherwise fairly ascertained terrorists remain at war while sleeping or planning at their homes. If they are at war generally, then the mere fact of sleeping does not make them non-combatants, as it is indeed common to bomb one’s enemies at night when their troops sleep. In the military law, someone who joined the enemy remains the enemy at all times until he surrenders or otherwise demonstrates his non-belligerence beyond doubt.
    It is therefore clear that domestic citizens can be killed without trial once they join the enemy. It applies, by the way, to US citizens in America, as well, not only abroad.

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  47. […] Obama Orders Americans Killed (outsidethebeltway.com) […]

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  48. […] James Joyner responds: Drawing the line is difficult, indeed.  Most obviously, if said accused terrorist were located within the borders of the United States, it would be clearly illegal to simply assassinate him. (Provoking him into defending himself by kicking in his door late at night, thus necessitating killing him, would of course be permissible.) But that would be true, I should think, of Osama bin Laden himself, much less an American citizen. […]

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