Proscriptions

View 694 Sunday, October 2, 2011

I spent the afternoon at the West Hollywood Book Fair, and it’s late so this will be short.

Apparently I have not made myself clear on this matter of proscription lists.

Of course the justification for the missile attacks on two American citizens in Yemen is that this was an act of war against those who have publicly declared themselves to be enemies of the United States. They considered themselves at war with us, and we with them. This is war.

We can accept this, but questions remain.

First, this wasn’t an act of war against someone engaged in actions against the United States. At the time they were travelling from one town to another, and whether they were armed or not is not relevant. It was a missile strike without warning on specific and named individuals, and one presumes there is a list of others who merit the same deadly attention, all of them persons who are at war with the United States. Let us assume all those persons on that list deserve to be there; that they have in fact engaged in war against the United States, and hitting them with missiles, or a sniper’s bullet, is no more than they deserve.

Questions still remain.

The first question is, how do you get on that list? It surely isn’t automatic. Just because the press reports that you have publicly declared yourself an enemy of the United States doesn’t necessarily make it true. Newspapers have been known to get such things wrong. But assuming that we have good intelligence reports, how do you get on the list? Is this a power that lies with the President alone, or must he have the acquiescence of someone else? Who? We are well beyond the law or the constitution here. We have to presume that this is a war power and resides in the President and that he can delegate that power.

To whom is he responsible, and how must he convey this command? Presume that the President in a fit of pique shouts some to the effect of “Damn that Rush Limbaugh! He’s an enemy of the people!” is that sufficient to place El Rushbo on a conscription list? Surely not. Suppose the President becomes sufficiently exasperated with El Rushbo to inscribe his name on whatever instrument is used to convey the proscription list to the military officers in Nevada who control the cruise missiles. Limbaugh has announce a trip to the Middle East, to Egypt or to Israel or Lebanon, and the President has determined that he will seriously compromise the national security and must be stopped. Is that sufficient?

Of course that could never happen. Not this year. Possibly not this decade, Surely.

Another question: if either of these American citizens had returned to the United States and come to Kennedy International where they presented their US passports at the entry booth, could they have been arrested? On what charge? Were there outstanding warrants? In the case of Samir Khan it is not clear what he could be charged with. He ran a blog, an Internet magazine – I do not know of any other involvement other than that he associated with Al Awaki who associated on line with Major Hassan. Perhaps either or both could be charged with conspiracy and with levying war against the US, but I don’t think that has been done. So: we establish that they could be killed out of hand while travelling from one place to another, neither carrying arms or engaged in any act of war, while in a foreign country: but could they have been shot down by a US Marshall while still in the part of the airport that is not yet in the United States? On international territory? Or after they stepped into the United States?

They can be killed but not arrested: it would take convening a grand jury or a warrant from a magistrate before they could be arrested at Kennedy?

I do not here seek to make life difficult for our military; but I do seek to ask questions. If American citizens can be put on a proscription list and those on that list can be killed on sight by launching high explosives as them, is it proper to ask the procedures required to get on that list? Could immoderate talk show hosts be put on it? Glenn Beck? Rush Limbaugh? So far it only applies to persons not in the United States. Could someone be on the list and be safe while in the US, but the rest of the world is death row?

Clearly I am rambling here and do not have any final answers. Perhaps the questions are frivolous? Perhaps as one reader says “It’s war and all’s fair in love and war.” Of course that statement is not true. And I do not seek to condemn Mr. Obama for ordering the strike. I do question whether we have sufficiently thought this through. Surely before American citizens can be put on a proscription list there must be some conditions: an act of war, a determination by the President, and surely there needs to be a declaration of war. We assume that the War on Terror establishes a state of war (although I believe Mr. Obama rejected that during the campaign; perhaps he has changed his mind, as he has changed his mind regarding Guantanamo, and trials of the inmates of Guantanamo by military tribunals (note that here there is to be a trial: the President does not seem to assert the right simply to order the execution of those held in Guantanamo without those military tribunals). Would it be good to write down the procedures for establishing the proscription list?

Well, enough. Had Mr. Clinton acted positively when Delta had Bin Laden in their sights, it might be that 911 would not have happened. Mr. Obama did not shirk the responsibility. We give him credit for that. But I do think it is worth discussing how we regularize the procedure for getting on the proscription list, and specify how one might appeal to get off it – perhaps by coming home to the United States and engaging a lawyer?

Enough. It has been a long day.

 

Monday morning’s Wall Street Journal has an article by John Yoo http://online.wsj.com/article/SB10001424052970204226204576603114226847494.html that is intended to address this issue. His conclusion is:

Simply because the Obama administration has the legal right to use force to kill members of the enemy does not mean it must always pull the trigger. It should have good reasons to believe an American has joined al Qaeda.

I don’t question this, but I do think it worth thinking about what those “good reasons” are. To the best of my knowledge a prisoner at Guantanamo cannot be summarily executed by a simple order from the White House. That requires a trial by a military tribunal. Under the Supreme Court precedent of the World War II German saboteurs executed after they were smuggled into the US, that would be sufficient for both citizens and non-citizens.

After the RB-47 incident in which the USSR shot down an unarmed US reconnaissance airplane over international waters, President Eisenhower is said to have ordered the assassination of an equivalent number of Soviet military troops of similar rank to those killed in the RB-47. By “is said to” I mean that this authorization is widely rumored, and I have a number of reasons (none of them official and none of my reasons subject to the official secrets laws) to believe this is true. It was neither officially admitted or denied by Eisenhower, who refused to discuss the matter. He neither asserted nor denied a right to to take this action.

Mr. Yoo argues that it is meet and right, and every expedient to use all means at our disposal to strike down the enemies of the nation, citizen or not. I think that if we accept that principle we may very much regret it. I may be mistaken in that. I do not think I ma mistaken in saying that if we are to accept such a principle we ought to be careful to define just who has the right to designate citizens as national enemies to be killed on sight, and to declare just who has the authority to execute this death warrant, and where it applies: is it strictly applicable to overseas, or may the President order the FBI to kill, say, Mexican drug lords on sight on either side of the US border? Are there limits, and should we not declare them?

Cicero’s last words continue to haunt: “There is nothing proper about what you are doing, soldier.” The Tribune who struck off the head of the former Consul of Rome believed otherwise. He was doing his duty to Marc Anthony.