Thursday, September 22, 2011

TPM thread on Awlaki

A couple of weeks ago, Donald Smith posted a comment on TPM that alluded to Awlaki. I replied to him, but then left the post, got distracted (easy to do with the constant churn of new TPM stories) and never checked back with that thread. NCSteve 3.0 replied to me. I can't say I'm crazy about how quickly he takes a rude tone, but I'm interested in what he was saying about why killing Awlaki is perfectly fine. These are some excerpts from the thread, and then I remark on it after that.

Donald Smith said: At some point, we liberals have a right to expect that those we elect will not simply worry about the next election. I did not vote for Obama so that he could allow the CIA to put out a wanted dead or alive warrant on the head of an American citizen who has never been arrested, let alone tried or convicted. If Obama can order the assassination of an American abroad without a court order AND legislative backing.... who the hell cares anymore? Extra-judicial assassination = worse than waterboarding.

I said: I am mostly with you except for "who the hell cares anymore?" Awlaki bothers me a lot too. But I think the point of continuing to push is that the degree to which there are many more Awlakis ahead - with ever more arbitrary rationales for killing - depends on the outcry from Bill of Rights people, Glenn Greenwald, Amy Goodman, legal groups like ACLU, EFF, CCR who bring suits. Otherwise the CIA et al., will say "It's the new bipartisan consensus! Nobody objects, so killing Awlaki is the new center!" and keep on doing it.

NCSteve 3.0 said: I'm sorry, but I simply do not get the all the hand-wringing and sobbing and slippery slope-mongering you guys do over a guy who's left the country, joined an enemy terrorist organization with which we are actually at war, who has actively recruited and encouraged people who have actually killed and maimed Americans and others and, at least according to the intelligence, has now moved into operational planning rather than just recruiting, exhorting others to kill us and inciting future mass-murderers.

There's simply nothing "arbitrary" about putting Awalki on the list of enemy leaders on foreign soil, beyond both the legal and practical limits of civilian criminal jurisdiction jurisdiction, that the spooks are allowed to take a shot at if they get a chance. Nor are the reasons for doing so ambiguous or morally or constitutionally suspect.

Awalki joined a foreign enemy of the United States. A real foreign enemy, not some contrived propaganda figment of Dick Cheney and Karl Rove's imaginations. An actual avowed enemy of the United States that has the blood of thousands of Americans and tens of thousands of others on its hands. An enemy that has unrelentingly demonstrated utter moral depravity, one that regularly recruits children to act as suicide bombers and then sends more suicide bombers in to the funerals of the victims.

If Awlaki wants to be treated like a civilian and subjected to civil criminal jurisdiction, he can reach out to the nearest embassy--through al Jazeera or some other media intermediary if he's afraid of being disappeared--and the DoJ would gladly negotiate a surrender deal with him in a heartbeat. But if he wants to play with swords, he doesn't get to use his citizenship as a shield.

So yeah, sorry, but I just don't get how I'm supposed to object to killing an enemy on foreign soil who is actively participating in making war upon us just because he's an American citizen out of fear that . . . what, it'll be construed as a precedent for killing someone in Peoria some time in the future? If this was FDR ordering the OSS to kill a German-American who'd heeded the fuhrer's call to return to the Fatherland, joined the SS and then was posted to the German embassy in Argentina in 1943 where he was recruiting others to commit acts of sabotage inside the U.S., would you be horrified at the violation of the Nazi cocksucker's Constitutional rights? Because, to me at least, that's just what this is.

There is more from Donald after that but I'm not going to quote it here. It's available downthread on the original story.

I definitely am using the slippery-slope argument, but the fact that it *starts* with someone who may inherently be a militant isn't relevant. I'm not worried about where the slippery-slope argument begins, I'm worried about where it *goes*. I am willing to consider Awlaki as someone who is inherently a militant, like the example of the German agent from the Supreme Court case Ex Parte Quirin. I suspect that law enforcement/military/intelligence thinks in terms of trial balloons. Crossing the line of killing a U.S. citizen may not be wrong, but it's still a threshhold. I propose that because Steve approves, that is an incremental piece of a big political back-and-forth that determines what they can do, and what they can do will influence what they will do. It's like elections, only based on outcry rather than voting. If they can get to a certain place without catching a lot of shit for it, or hurting anyone's reelection chances, I suspect they will try the next increment when it falls inside of their goals. That's my "slippery slope-mongering." My impression of law enforcement/military/intelligence is that they view permissions and prohibitions as having more or fewer tools. I believe Holder has talked about "give us tools so we can do our jobs."

(I'm mixing agencies, but really, I don't have a lot of faith in the walls of separation between military/police/domestic intelligence/overseas intelligence/DHS. There is lots of evidence that the police are increasingly militarizing, and we have the Pentagon blurring the lines with its own DIA, etc.)

I suspect that getting away with something works as a trial balloon. The outcry or lack of outcry towards Awlaki will influence that. It's what they can get away with without a political cost. If it works and it makes their life easier, preemptive killing is a tool. I think they would respond to counterproductiveness, like blowback, but sometimes maybe not even that.

The point of this blog is documenting evidence. So in addition to false positive stories I should also make a note of examples of the slippery slope or lack thereof. Just because Steve says it isn't a millieu worth worrying about doesn't mean it isn't. I don't know. Even if I do find examples, someone can always undercut your sources, say they're biased, etc. I do have a problem with the "size of the entire pie." If I find ten anecdotes about false positives, I don't know how I would figure out the denominator of the fraction. If I find ten instances of an actual slippery slope, same problem. Anyway, I want to back up or refute my own preconceptions, so when I find something I will probably still document it on here.

As for Awlaki in particular, he can be inherently a militant and my anxieties about it still hold. Like the German agent. But the authorities should go public with the standard. Go out in the open and state what kinds of ancillary damage is considered worth it. If it includes the guy in Peoria, say so. If it doesn't, say so. Ridicule creates impunity to actually hurt false positives, sort of like the language from the early '00s around "giving aid and comfort to the enemy." The imperative nature of the war is all well and good, but what about the actual innocent people that civil libertarians are protecting by trying to split hairs? If you think the ends justify the means, say so. I don't accept that the answer to "Where is the oversight? How do we know they're wielding power honestly and competently?" rests on superstition and patriotic spectacle like saying "valiant" and "heroic" and then holding up soldiers as special, above reproach or drilling down for specific information about what their accidents and their overreach are like.

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