Articles

Tuesday, October 04, 2011

Due Process With a Bullet

A GI in the hills of France takes aim through a rifle scope at a German soldier. Snow cakes the ground and a few bare trees cling to the ground like bony fingers. At the last moment, the German soldier sees his attacker. “Wait,” he cries out in a passable accent, “Ich bin an American citizen.”

The scenario isn’t a particularly implausible one. Any number of Germans did leave to fight on behalf of their country in the first and second world wars. And there was no question of due process on the battlefield. Members of enemy forces who fought against the United States were killed and any precedent set in that regard was set long ago.

Critics of drone attacks call them “assassinations”, but there is no difference whatsoever between a soldier sighting an enemy officer through a computer monitor or a rifle scope. There is also no legal distinction between firing a bullet or dropping a bomb or launching a missile. The nature of the projectile or delivery mechanism matters in the tactical and strategic sense, it doesn’t matter in any other way. War is war and dead is dead.

If knowing the identity of your target ahead of time is assassination, that is a subjective difference on the battlefield. And Al-Awlaki was not the first enemy officer targeted for death. Excessive nitpckers may raise legal questions about the legality of targeting enemy officers under the rules of war, but anyone who thinks the rules of war apply unilaterally and unequivocally to a terrorist group that does not abide by any rules is a hopeless case anyway.

Anyone who objects to the Al-Awlaki strike on due process grounds should also ask themselves if they would have objected to the strike on Admiral Yamamoto, the man behind Pearl Harbor and the strategic visionary of Japan’s naval war, if Yamamoto had managed to pick up American citizenship while in this country. 

Should the United States then have practiced a hands off policy on Yamamoto until the war was won and he could be brought to trial? Had we done that, we might not have won the war at all. And if we try to arrest every enemy fighter on the battlefield who ever lied through his teeth while taking the citizenship oath, we’ll lose this one too.

Until the Warren Court began making up its own Constitution, there was no question about any of these scenarios at all.

An American citizen who defected to join an enemy army, or simply defected or even deserted was denaturalized. Denaturalization stripped him of his status as an American. 

The Warren Court, making up its own laws as it went along, decided that when the Founders outlawed cruel and unusual punishment, they meant stripping a deserter or traitor of his citizenship, rather than say keelhauling. Justice Thomas has already shown the absurdity of this reasoning, but until the decision is overturned, we still have a Supreme Court ruling that says a man who turns his back on his country, joins an enemy army, vows its destruction and fights against it cannot be denaturalized.

If Ron Paul and the other Constitutional “scholars” concerned about due process were really serious about restoring the Constitution, they would address the Al-Awlaki case by calling for the return of “Denaturalization” as the original Constitutional solution for dealing with American citizens who defect and join enemy forces.

Yet even setting aside the denaturalization issue, due process simply does not apply. From the beginning of the War on Terror, its critics have insisted on treating a war as a criminal action and insisting that terrorists should be tried in civilian courts.

But those who wrap themselves in the Constitution while insisting that members of enemy armies should be entitled to due process in the civilian justice system show that they do not understand the law or what the justice system is for.

The justice system determines the guilt or innocence of people within the society who are suspected of having broken the law. Its procedures are weighed in favor of the defendant to balance the power of political and judicial institutions. Since the system pits the citizen against the authorities, it favors the citizen to check government power and to compensate for the advantages of power and resources held by the authorities. 

While the justice system defends society against criminals, it also defends society against the preponderance of government power. It has to walk a fine line so that the individual has a reasonable expectation of security from rogue individuals and from the authorities.

The military is an external defense force that protects the society from external threats. It is not an internal social mechanism like the judicial system and does not need to be weighed or balanced. The only people properly subject to its authority are members of the service, hostile armies and their host populations. (When the army is utilized in any way domestically a whole range of issues arise but that is a separate topic.) 

The former are protected by a military code of justice. The latter are protected only by their own standard of behavior which we reciprocate through treaties that govern wartime behavior. Or at least that is how it was until enemy sympathizers and bleeding hearts took over our government, legal system and culture.

The advantage of this standard is that the reciprocity built into the system protects our soldiers and civilians from abuse by making our treatment of the enemy contingent on their treatment of us. Their prisoners have nothing to worry about, so long as our prisoners have nothing to worry about. Their civilians won’t be targeted so long as ours aren’t targeted. We won’t use WMD’s on the battlefield or target enemy officers or do any number of things, if the enemy agrees to likewise. 

We betrayed this standard by failing to hold the other side accountable. Instead we unilaterally grant them protections that our own people do not receive. The worst victims of this have been our POW’s who can be tortured, abused and executed, while enemy prisoners live the good life. This betrayal long predates the War on Terror. It goes back all the way to World War 2, to biological weapons experiments performed on American soldiers in Japan’s Unit 731 and the Malmedy Massacre carried out by the SS, from there to Korea and Vietnam, where American soldiers were starved and tortured and some vanished entirely. In Vietnam the abuse of American soldiers occurred with the participation of liberal human rights activists like Jane Fonda, who continue to agitate on behalf of the treatment of enemy soldiers today.

But the final absurdity and betrayal is the insistence that enemy combatants are entitled to the benefits of our internal judicial system. Anyone who proposes something so absurd might as well let Anwar Al-Awlaki run for congress, where he could join the Progressive Caucus and take his seat among some of the worst Anti-American figures outside of a cave in Pakistan.

The comforts of Gitmo already mean that the enemy has absolutely no incentive to keep Coalition troops alive, because he knows that whatever he does, his men in captivity will be given three Halal meals a day, their very own copy of Harry Potter and a cell, rather than a bullet.

The insistence on civilian trials for captured terrorists and the refusal to classify terrorist attacks by Al-Awlaki’s acolytes at Fort Hood and Times Square as such has defanged even Gitmo, leading to a situation where the worst case scenario for a terrorist is free housing and all the Halal meat he can eat (purchased by prisons from Muslim butchers and companies who pay that money forward to terrorist charities so that even while they sit in prison, they contrive to trick us into funding terrorism.)
But a further insistence on due process for armed terrorists on the battlefield who show no signs of surrendering is a knife in the back and a white flag waved overhead. If we can’t kill one of the many Muslim terrorists who passed through Illinois, Boston or California and picked up the right document along the way—then we might as well throw ourselves on a grenade now.

Let’s add a scenario here. It doesn’t take place in Afghanistan, but right here at home. 

Flight 352 leaves LaGuardia Airport bound for San Francisco. In an aisle seat, Mohamed Syed fingers his carry-on which he has managed to get on board while the TSA boys and girls were busy strip searching nuns and interrogating three year olds. Inside the carry-on is whatever scheme the bright boys in Islamabad or Paterson or Hamburg have worked for bypassing the infidel’s security.  And hijacking a plane.

While everyone is watching the in-flight show, listening to music or snoring, Mohamed Syed manages to get inside the cockpit. There are one or three bodies lying in the aisle behind him, but when the door closes, he is in complete control of the plane.

One more thing. Mohamed’s parents may have been from Pakistan, but he was born in Jersey City.

Flight 352 turns West as Mohamed puts his hours in Microsoft Flight Simulator to good use and chooses a target to ram. Maybe it will be the Empire State Building. Maybe it will be Coit Tower. There are plenty of places in this country with thousands of people packed in one place whose destruction will make for great television.

“Allah Akbar,” says Mohamed Syed, and begins his final approach. Ahead he can almost see the virgins opening their arms to him just like his sisters used to.

But there the sun glints off two F-18’s moving to intercept. Before Syed can reach his target, Flight 352 will be destroyed killing Syed and all the passengers as it splashes down into the water, but sparing thousands of people in the city.

Yes, but what about Due Process? What is this strike but an assassination of an American citizen? Syed has as much right to due process as Al-Awlaki. Still we aren’t assassinating him, we’re assassinating a whole plane full of Americans. And that’s not assassination, that’s mass murder.

But now suppose those jets have another gizmo in it developed for just this scenario after 9/11, a sonic weapon or a laser that pointed at the cockpit will fry Syed and allow a surviving pilot a chance to take control of the plane. 

The due process argument though says that the fighter pilots are on safer ground if they kill a whole plane of American civilians, than if they target one man on that plane who happens to be an American citizen without putting him through the rigors of the justice system. Without giving him his own lawyer, his own Koran and Halal sandwich, and letting him make the case that we are a bunch of devils who deserve nothing more than to be murdered in the name of a Sharia state of Islamic law.

That is what has to happen even if it’s physically impossible or the cost would be too great. Every terrorist who has one of our passports is entitled to the full protection of a legal code designed to prevent domestic criminal suspects from being subject to an unbalanced system.

But it’s an emergency, goes the argument, and that’s a valid point. We have no choice but to deprive Mo of his rights. So let’s turn back the clock to three months earlier and suppose that Mohamed is back in a training camp in Pakistan, cheerfully jumping over tires and miming slashing the throats of stewardesses and all the other things that a servant of Allah has to do to get in proper shape for paradise.

 A drone passes overhead. Mohamed is in its sights. But Mo was born in Jersey City. Where’s his due process. Perhaps a team of SEALS should be sent to arrest him, convey him to the United States for trial, where his ACLU lawyers will explain that there is absolutely no proof that he did anything wrong. The secret evidence obtained through wiretapping Mo’s phone will be thrown out. The sole informant will be unable to appear in court and his testimony will be rejected by a Clinton appointed Federal judge. 

A sympathetic article will depict Mohamed as a deeply religious man who followed his convictions. A photo will show a bearded man with soulful eyes and spectacles looking sadly at the camera. Experts will say that his detention is unjust and unfair, and encourages more terrorist attacks against us.

After five years of trying Mohamed Syed, the jury will toss out most of the charges and convict him of one count of conspiracy. Meanwhile the families of the three SEALS killed while on a mission to capture him will be visiting the cemetery. 

But the good news is that Due Process was followed. And the War on Mancaused Events Whose Nature and Perpetrators We Won’t Go Into To Avoid Scapegoating Anyone Who Doesn't Have Anything To Do With It Anyway So Let's Stop Talking About It And Just So You Know Islamophobia Is A Very Serious And Totally Not Made Up Problem will go on.

For a moment though imagine one final scenario.

The drone passes over a different region entirely. Underneath is the man who inspired and guided some of the September 11 hijackers and many other aspiring terrorists like the Fort Hood shooter and the Times Square bomber. He didn’t guide Mohamed, because there is no Mohamed, but there are many Mohameds who aspire to do carry out this scenario, and they look to him for guidance.

His name is Anwar Al-Awlaki.

Due process is an important thing. For American civilians it’s the due process of the legal system. For enemy combatants who are members of an enemy force but happen to hold American citizenship, it’s due process with a bullet.

16 comments:

in the vanguard said...

Very good point. So simple when you think about it. With all these politicians versed in PC, even we begin to fall for the nonsense! So - thanks for clearing that up for me!

mindRider said...

Right you are and yet Israeli prisons are filled with bloody murderous muslims many of which should have been shot and Hizbollah's Nasrahalla is even worse (where do they possibly find them) than his duly and rightfully executed predecessor. So far the muslims have no lack of new would be murderers or terror CEO's whatever action was taken against them in the past. Perhaps due to lack of normal jobs in the Arab world combined with jihadist fervor or the lure of those 72 virgins plus the the easy funding so lavishly provided by their enemies many Refugee funds. Does the killing of these individuals only serve to satisfy the justice feeling of those in our culture that still posses any of this or do these killings provide such disruptions in the terror plans of the jihadists that it makes a difference?

HermitLion said...

The fact that this issue had to be explained at all, shows just how far the public debate has been corrupted with indoctrination.

I'm afraid soon you'd have to explain why we have to kill the people who strive to murder us, Sultan, instead of getting down on our knees and massaging their feet, while they point a gun to our head.

Treason is a death penalty said...

"Experts will say that his detention is unjust and unfair, and encourages more terrorist attacks against us"

They were going to do that anyway. No excuse needed, no reason given for killing you and your people. They have decided you are the enemy so you must be killed. Indeed, the weaker you are the more satisfying the kill; nothing says Islam will dominate the world better than killing an infidel woman and a child because they are less likely to fight back. And all good muslims fear a cowardly death with the smell of their own faeces filling their pants when they know someone has a cross-hair sight trained on them.

How much better to praise Allah by killing innocents! How kind the goat was to take that abuse without complaining! How good it is to throw acid in the face of a girl who wants to learn! How satisfying and manly to have a woman's sexual organs disfigured lest she should find some pleasure! How clever of the west to make the things the muslim can take and use against it!

Allah is indeed great to make the world oblivious to the threats and evils of Islam!

Anonymous said...

Bravo, Sultan!

An excellent article, explaining why Al-Alwaki wasn't entitled to due process.

Sadly, I don't due process is the real issue, for those defending him. I fear that, even if his citizenship had been formally rescinded, in a newspaper ad or something, that wouldn't be enough for the Paulians, or the ACLU. They'd still be upset that he wasn't given---well, something! And why are we evil Americans even trying to defend ourselves? /Sarc.

Again, well done!

Rhinestone Suderman

fsy said...

"just like his sisters used to."

Classic!

cornholio said...

What lieberal idjits also ignore is that Anwar Al-Awlaki could hardly be expected to comply w/due process of law and turn himself into the authorities for his day in court and police officers are hardly going to be going to whatever islamofascist pigsty Anwar Al-Awlaki is hiding out in to serve a warrant while his fellow muslimes are blasting away at them w/AK-47's and RPG's.

illuminoughtu said...

You still haven't justified allowing any single branch of the government to become Judge, Jury and Executioner. When the public becomes desensitized to these types of executions, and they will; what is to stand in the way of the political executions that will begin on American soil? And what will stop some bureaucrat, who doesn't like your blog, from assigning a drone to your ass?
Nothing. "When you knock down the law to chase the devil, where will you hide when the devil turns on you?" You're article is no better than the left's Hegelian dialectic. Don't become a Nazi, or a Stalinist. Stand by Principle, Law is Artificial, Expediency is Excuse.

Daniel Greenfield @ the Sultan Knish blog said...

judge, jury and executioner applies to the judicial system

there is no judicial process for the military killing enemy personnel on the battlefield

it's a completely different sphere of activity with nothing in common

if we had to judge every enemy soldier then we could just surrender before every war and save everyone the time

To argue that if the military is allowed to kill enemy personnel that makes it easier to kill Americans for political reasons is like arguing that if you kill a fly, what's to stop you from killing a person

Don't become a Nazi or a Stalinist? 90 percent of the arguments against fighting terrorists are coming from Stalinists at the ACLU and Nazi Paultards.

Norton said...

There is one problem with these arguments: during WWII we were at war. It was a declared war and rules of war applied. We are not in a declared war now. Maybe we should be but we are not. This means that Awlaki was killed because someone in the executive branch decided to kill him. What if the executive branch decides to execute a US citizen for secret reasons, like political disagreement? How far are we from a dictatorship.
Due process doesn't mean a full fledged trial. It can be a military commission trying the citizen based on available evidence. This could be done a long while ago so that Awlaki could be executed when an opportunity presented itself. Our President chose to kill a citizen circumventing all due process and he should be impeached for this.

Daniel Greenfield @ the Sultan Knish blog said...

We're in a declared war, as much as possible without a specific state actor to declare war against.

We experienced an act of war and we declared war against those who had done it.

The rules of war are reciprocal and only apply to the extent that mutual covenants between the warring parties do.

"What if the executive branch decides to execute a US citizen for secret reasons, like political disagreement?"

What does that have to do with fighting enemies on the battlefield.

I suppose if we went entirely pacifist and disarmed the military that would make it very improbable that the government would be able to kill anyone. But that's not a sensible solution.

The President is the Commander in Chief of the armed forces. This is a power that always existed without American citizens being executed for political reasons.

"Due process doesn't mean a full fledged trial. It can be a military commission trying the citizen based on available evidence."

Due process is a judicial measure which does not apply on the battlefield.

If we have to run a military commission backed by evidence every time before we kill a terrorist with a US passport, then we might as well shoot ourselves in the head now. It'll be easier and simpler for everyone involved.

Ditto if we had to do that every time we had to kill a German soldier or officer who was a US citizen in WW1 or WW2.

"Our President chose to kill a citizen circumventing all due process and he should be impeached for this."

He may be your president, but he sure as hell isn't mine.

Impeaching Obama for a drone strike on a terrorist is like impeaching Carter for considering rescuing the Iranian hostages.

You might as well impeach Blagojevich for the one time he didn't steal from the till.

S. Richard said...

When your opponent only stops trying to kill you when you kill them first, then obviously you must kill them. Violence does solve problems, especially when in the view of your islamic opponent the only good infidel is a dead one.
Pacifism leads to easy death for those unwilling to fight back. Gandhi said the Jewish response to the Holocaust should be to cheerfully go into the gas chambers. I'd rather live than die in false intellectual and moral superiority. Slogans like Woody Guthrie's "This Machine Kills Fascists" on his guitar may be precious, but a blast from a shotgun works better in reality.

Keliata said...

Wonderful. Simply wonderful! I can't even think of words to describe your writing anymore.


"Critics of drone attacks call them “assassinations”, but there is no difference whatsoever between a soldier sighting an enemy officer through a computer monitor or a rifle scope. There is also no legal distinction between firing a bullet or dropping a bomb or launching a missile."


I'm not a military person, just someone who loves the movie Top gun but that sounds like good old fashioned military dog fighting:) Well, similiar to that.


Your last line about due process says it all.

Kristin Solo said...

Al- Awlaki's finger prints left their dirty mark all over Al Qaeda's operations and identified him as a facilitator, enabler and incitor of terrorism, murder & mayhem.
He was the equivalent of a deranged maniac on the loose with a jar containing a deadly plague virus, threatening to wipe out civilised innocents .
By very nature of the deadly threat he poses,the psychopath forfeits his human rights and subjects himself to elimination via the bullet of the best marksman available!

Anonymous said...

Due process does not apply in warfare against foreign countries and entities.
Warfare is waged under the Law of Armed Conflict.

The US is officialy in a state of armed conflict with the Al Qaeda group, Taliban and assosiated forces.

The Law of Armed Conflict does not state anywhere that enemy soldiers with american citizenship are not lawful combatant targets.

Wes said...

My problem with the whole discussion is that one must embrace the "living, breathing Constitution" concept within modern liberal jurisprudence in characterizing al-Awlaki as a U.S. citizen. The idea of birthright citizenship originates in a deliberate distortion of the 14th Amendment's meaning. I say "deliberate" because the original intent of the Amendment's authors is part of the congressional record.

One might as well suggest that a woman does, indeed, have a right to kill her unborn child, since the federal government has proclaimed the existence of such a right since 1973. This is what happens when a nation under the rule of law becomes a nation ruled by those who are lawless.

An accurate headline over this story would read: "Foreign Enemy Combatant Falsely Dubbed American Citizen Killed by U.S. Military."

Post a Comment