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The USG chose the option that killed the fewest innocent civilians.

That is an enormously presumptive statement that you're not qualified to assert. It's so big I'm fairly sure it's wrong; the probability is very much against it. Tens of thousands of innocent civilians have been killed in "preemptive" wars the US started post 9/11.

Even taking US air strikes alone, the kind of operations that the US has been engaged in radicalizes people, and they'll be motivated for decades to come.

The only way your statement approaches truth could be if you assume that only US civilians matter, but even then I don't think it'll be true in the long term.

Look at the options more carefully:

(1) Leave al-Awlaki alone, situated in the middle of AQAP home territory, and hope that he doesn't succeed in his evident ambitions to coordinate attacks against Europe, America, India, Russia, and Indonesia. This is the strategy Clinton employed against Osama bin Laden and Ayman al-Zawahiri. You and I might debate it, but a realistic analysis of the circumstances of al-Awlaki has to acknowledge that the strategy was discredited. Consider carefully what the real differences between al-Awlaki and al-Zawahiri actually were.

(2) Kill al-Awlaki with an air strike. Here, we have the benefit of seeing the result of this strategy, since it's the option the US actually took. Result: 14 people dead: al-Zawahiri, his son, the editor of al Qaeda's English-language magazine, the day-to-day operational leader of AQAP, and 10 other people. Assume only al-Zawahiri, the editor, and al-Banna were actually meaningfully hostile to the US: that's a death toll of 11 innocent people.

(3) Invade Yemen. Hundreds or thousands of truly innocent people, people with no connection to AQAP or al-Zawahiri at all, would have been killed. Nothing the USG does is more damaging than sending ground troops.

Options (1) and (3) had potential death tolls in the thousands. Option (2) had a death toll in the low teens.

I think reasonable people can obviously disagree about which of these options was the most prudent. But I don't think it's reasonable to suggest that there wasn't a difficult decision here; that the President, whose foremost duty is to protect the people of the US, could casually have chosen to leave al-Awlaki to his own devices. I look at the situation and thank God I'm not the President, and can instead retain my humanity.

Are those seriously the only options? Ignore, kill a US citizen with a drone strike, or have a full-out invasion resulting in hundreds or thousands killed?

Citizenship can be revoked, but I'm pretty sure that matter needs to be decided by a judge, not the President. Am I incorrect?

What's the other option you're thinking about?

The US cannot unilaterally revoke citizenship.

I guess there's that whole extraordinary rendition / kidnapping deal, but that'd probably have a death toll in the twenties to two-hundred fifties, depending on the tactics used*

*uneducated guess, informed by video games, with no bearing on real life whatsoever

"Extraordinary rendition" in al-Awlaki's case would have involved an invasion. He was hiding in a lawless province of southern Yemen controlled by AQAP.

I agree with you that citizenship should not protect you from the consequences of your actions. Even so, I don't understand how a targeted drone strike in Yemen is an acceptable choice for the USG, regardless of who is killed.

Would it be okay for another country to conduct such drone strikes on US soil? If not, which countries are allowed do do such things, and where, and why?

How can you prove that lives were saved by the drone strike?

What does "OK" mean? Nations interact in the state of nature.

"OK" and "allowed" in this context practically refers to whether and what the host/target country will do about it. If that's "nothing" or very close thereto, then by Law Of The Jungle (which is the nature of military action) the answer is "yes". If that's "the perpetrators will be hunted down & killed, and the presiding government overthrown, and maybe another country's government will also get overthrown while we're at it", then the answer is "no".

The point of military action is that all other viable diplomatic options have been exhausted, and something must be done to stop an avowed enemy. We're not going to sit around waiting for known terrorists to carry out successful attacks on innocents before doing something to stop them. "Reflective contemplation is not required in the presence of an upraised knife." Once such military action is deemed necessary, the question then is whether a single drone destroying a few rooms and their occupants with zero direct risk to US troops is (or isn't) preferable to destroying several city blocks (at minimum) and their occupants with significant risk to our personnel. You demand proof, but only from a position of prejudiciously rejecting any given.

FWIW: The "upraised knife" quote is Oliver Wendell Holmes, in Brown v US, and goes "Detached reflection cannot be demanded in the presence of an uplifted knife." This is Holmes rejecting the idea that a defendant invoking self defense must carefully reason whether he can safely flee, rather than employing deadly force.

This is also the much-overlooked basis for "stand your ground" laws, which are not a license for citizens to kill, but are instead a reminder to the state that if deadly force is warranted then retreat is not a viable option to demand of the defendant.

"I have mild nerd autism and am easily trolled"

Dude. If you ever get a firm diagnosis or find a support group please let some of us others know. It's like an epidemic.

What about (4) trial in absentia? Is it possible under US laws?

A trial in absentia would have been preferable to a fiat killing, but the end result would have been the same. The US had no means of apprehending al-Awlaki because he had situated himself in a war zone controlled by AQAP. The trial would have concluded, and the US would have faced the same 3 choices.

You make a good point, but not one that fundamentally changed the options on the ground.

We can't be sure what the result of that hypothetical trial would be. Otherwise why have a trial in the first place?

It appears there was a lawsuit against U.S. It was brought by al-Awlaki father after U.S. put him on a kill list (while he was still alive).

https://en.wikipedia.org/wiki/Anwar_al-Awlaki#Lawsuit_agains....

What hypothetical trial? The USG could not apprehend al-Awlaki without invading Yemen. No trial was possible.

He could have been trialed in absentia, get death penalty and then get killed by a drone. I don't know if this scenario was even possible, let alone probable.

It is not, because trials in absentia, particularly criminal trials, and specifically capital trials, are unconstitutional in the US.

Those options would then be OK to consider. Would you be OK with skipping trials for people here in the US if we were sure they'd be found guilty anyway, so the end result should be the same?

How is that not a silly question?

With all due respect Thomas, you have completely missed the point. The executive branch (Bush and Obama both) have taken unto themselves the roles of judge and jury. This doctrine says that president alone gets to decide the definition of "war", the location of the "war zone", and the guilt of the presumptive defendants. No trial needed. And the penalty is death.

That this particular case seems obvious to you, should not be reason enough for you to accept the whole doctrine.

And this was untrue of World War 2 how?

WW2 was a declared war, with uniformed soldiers, citizens of foreign nations. What does WW2 have to do with Al Awlaki?

Am I misunderstanding your question?

The war against al Qaeda was a declared war. al Qaeda is specifically called out in the 2001 AUMF. Nobody in al Qaeda wears a uniform; they deliberately avoid them, to maximize the probability that their opponents will kill innocent civilians. And, we killed Americans fighting for the Nazis during WW2.

I'm unaware of any U.S.-sponsored assassinations of non-uniformed American citizens outside the theater of war during WW2. I'd be interested to know what you're referring to.

Look, I understand you're trying to support your argument by drawing comparisons to another better-defined war, but your particular choice of wars is baffling. Most often, comparisons are made to the American civil war; Lincoln's explorations of executive power in the face of an existential threat to the republic are profoundly relevant to this debate. WW2... I'm at a loss.

The 2001 AUMF, for example, is as far removed from the US declaration of war against the axis as you can get. It's everything that a typical formal declaration of war isn't, with the vaguest possible definitions of who the enemy is and where the battle can be fought. It has no real limits of any kind, and has henceforth been used as a license for indefinite military action.

>"Nobody in al Qaeda wears a uniform; they deliberately avoid them, to maximize the probability that their opponents will kill innocent civilians."

I may be a bit slow, but honestly I already knew this :) Yes this conflict is very different from the canonical 20th century wars which naturally shape our views of what war "ought" to be. Our laws and treaties are inadequate, and leave us in troubling gray areas, and I'm not convinced there are any good ways out.

BUT...

I'm also pretty sure a good solution is NOT to simply give the president the license to do whatever he wants to whomever he labels a "terrorist", regardless of location or citizenship. This is precisely the license assumed by the Bush administration during John Yoo's tenure. It appears to be the basis of your own assertions as well; please tell me I'm wrong.

These aren't meaningful rebuttals.

The AUMF was a declaration of war. The Constitution doesn't lay out the specific form of a "declaration of war"; the Korean War, for instance, was fought under the aegis of a UN declaration. Wars fought under informal authorization by Congress date all the way back to Jefferson and the First Barbary War.

It's a popular myth that we're fighting an "undeclared" war against al Qaeda, but unfortunately, that's all it is. We really did declare war against al Qaeda, by name, in 2001, and because al Qaeda is a brand name and not a nation state, at war we will remain until Congress repeals the AUMF.

The comparison to WW2 is simple: during WW2, scores of German-Americans traveled to Europe to fight on behalf of the Nazis. We didn't read them their rights before we killed them. American citizenship did not shield them from the consequences of armed conflict. If al-Awlaki wanted to prosecute his cause using the mechanisms of due process, it was a decidedly stupid idea for him to take up residence in territory controlled by AQAP, where the only reasonable mechanism the US had available to it to stop him from killing innocent civilians was an airstrike.

Also, you're wrong about the President's authorization to kill whomever he labels a "terrorist". The President does not have a blanket authorization to use the military against "terrorists". He has authorization only to strike against al Qaeda and those persons and organizations who assisted in the attacks on 9/11. The President cannot authorize airstrikes against, say, Basque separatists, or the Tamil Tigers.

JSOC answers directly to the POTUS, and acts outside the normal channels of the US military.

So, yes, the POTUS can, and does, decide who JSOC will be going after next.

That's an irrelevant detail; the distinction between "JSOC" (when it's JSOC doing the dirty work) and POTUS isn't at issue. The issue is that the entire Executive Branch is limited in who it can target.

>"The AUMF was a declaration of war. "

I'm not really disputing that. I'm saying that using the AUMF to draw comparisons to WW2 is not helpful.

>"The comparison to WW2 is simple: during WW2, scores of German-Americans traveled to Europe to fight on behalf of the Nazis."

Yes, in uniforms, on the battlefield. We didn't, as far as I know, bomb a dude writing anti-american propaganda in a city far from the battlefield. This whole WW2 analogy of yours is really tortured, and I feel foolish even arguing about it.

>"The President does not have a blanket authorization to use the military against "terrorists". He has authorization only to strike against al Qaeda and those persons and organizations who assisted in the attacks on 9/11."

Not according to the current president. I'll let Eric Holder speak here:

It is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.

This is from his speech at Northwestern, wherein he uses the phrase "al Qaeda and associated forces" five times.

Guess who gets to decide what "associated" and "operational leader" mean.

I'm frustrated that I have to spell it out like this. This administration has made it perfectly clear that if you're an American citizen abroad, the president can have you killed based on an evaluation that he alone can make. The customary checks of the judicial branch can be waved at will if the president can link you to AQ in some way. Apparently, moving to Yemen and claiming to be a leader in AQ in some shitty youtube videos counts. The bar will possibly be lower in future administrations. Or not. The point is that the process is completely opaque and unchecked.

I don't understand your argument. If an American citizen wears a Nazi uniform while fighting for the Germans in Holland, it's OK that we kill him. But if an American citizen wears the garb of an al Qaeda terrorist while working for al Qaeda in lawless Shabwa Province, Yemen, the site of an ongoing armed conflict between AQAP and the government of Yemen, it's not OK that we kill him. Why not? What's the difference?

In reality, the guy in Shabwa is far, far more dangerous than the random lunatic fighting with the Nazis was in Holland. The lunatic wasn't about to coordinate the bombing of a commercial airliner filled with innocent people. But that's exactly what al-Awlaki was doing.

Meanwhile, your Holder quote doesn't rebut my argument. Holder is saying the administration can launch strikes against al Qaeda. You made a broader claim, the administration can designate people "terrorists" and kill them. You were incorrect. They cannot do that.

You also drastically oversimplify the charges against al-Awlaki. He wasn't designated a leader of al Qaeda because of "shitty Youtube videos", nor was he killed simply because he wrote articles advocating for al Qaeda. Similarly, Osama bin Laden wasn't targeted because he himself bombed an embassy in Tanzania, blew a giant hole in the USS Cole, or stabbed someone on an airplane with a box cutter.

>"Holder is saying the administration can launch strikes against al Qaeda."

He actually took great care not to say that. He is carefully not limiting the president to action only against AQ. The phrase "al Qaeda and associated forces" is deliberate. He is expressly reserving the power to decide who is "associated" to AQ and in a "leadership" position, and to take lethal action based on those decisions. All of these decisions are completely opaque and unchecked by any power outside of the executive.

The 2001 AUMF is a sideshow. Holder doesn't think he needs it. He has opined that congress has no authority over the president in this area anyway, and that includes military action on U.S. soil:

http://www.salon.com/2013/03/06/does_eric_holder_know_the_la...

I consider this a dangerous concentration of power that the president should reject. This appears to be the crux of our disagreement, yes?

No, it is not.

> We really did declare war against al Qaeda, by name, in 2001

No, we didn't. There are no named persons or organizations in the 2001 AUMF, it is literally a blank-check declaration of war that authorizes the President to write in names. Which is one of the many reasons that people (including Barack Obama -- as President -- have said it needs to be sunsetted.)

You're right, of course; it's not the 2001 AUMF that specifies al Qaeda by name, but rather the 2012 NDAA.

The 2001 AUMF authorized force against people and organizations "he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons". Which is al Qaeda and the Taliban, but yes, not by name!

And yes, of course, the 2001 AUMF is awful.

But to 'nate_meurer's point: the President does not have the authority to kill people simply because he has determined that they are terrorists. Nor does he consistently have the authority to kill people that are determined to be in al Qaeda; for instance, if they're on American soil and not actively engaging in violence, Holder has testified under oath that their killing would be unconstitutional.

>"...Holder has testified under oath that their killing would be unconstitutional."

If you have a citation for this I like to see it. Overall he doesn't seem too committed to this idea. Furthermore, he seems to think that the president is the only legitimate arbiter of the constitutionality of these actions. From http://www.salon.com/2013/03/06/does_eric_holder_know_the_la...:

At a Senate Judiciary Committee hearing today, Sen. Chuck Grassley, R-Iowa, asked Holder whether Congress could prohibit the targeted killing of Americans in America. “Do you believe Congress can pass a law prohibiting POTUS to use lethal force on U.S. soil?” he asked directly, explaining he meant the prohibition would apply only where a person did not present an imminent threat.

“I’m not sure that such a bill would be constitutional,” the attorney general responded. “It might run contrary to the Article II powers that the president has.” Article II is the section of the Constitution that lays out the president’s authority as commander in chief of the military.

http://www.mediaite.com/tv/ted-cruz-goads-eric-holder-into-a...

I think I'm done with this argument now.

http://www.gocomics.com/calvinandhobbes/1987/01/18

How can you have a war without a clear definition on who the enemy is, what goals the war has, and at what point victory can be declared. Perpetual hostile activity is not a war, its a order of existence similar to that of an religion.

The time when the US declare peace will not be because of dead terrorists. It won't be because somewhere its more safer. It won't be because some goals has been achieved. It will be because sooner or later, people will get tired of war.

I can say this with 100% certainty based on a concept made two thousand years ago:

  The pinnacle of military deployment approaches the
  formless: if it is formless, then even the deepest spy
  cannot discern it nor the wise make plans against it."
  -- Sun Tzu, "The Art of War", Datalinks

So long the conflict itself remains formless, there will be no way to actually fight it and end it.

I agree entirely! You can't. The 2001 AUMF is scary.

You seem to totally miss the last sentence, so let me reiterate it.

  *The conflict is formless*

The foes in the conflict are not formless, but thats beyond the point. When you have killed 1 000 terrorist, has the war been won? 100 000? a million? 10 millions? The formlessness is the conflict itself, since no one, not even you can define it.

Thus the conflict itself can not be won, it can only be fought perpetually. The deepest spy cannot discern what is needed to be destroyed for victory, and the wise can not device a plan for it.

What part of "I agree totally" did you miss?

Sorry, I misunderstood you post. Thought you were talking ironically.

The fact that I disagree with a lot of HN reasoning about the "global war on terror" leads a lot of people to believe that I support the "global war on terror". While I'm not exactly outraged by the targeted killing of people who are trying to blow up passenger jets from a safe house in Yemen, I definitely don't support the overall effort. I think a "war" on what is essentially a brand name is an unbelievably bad idea, one I worry that history will probably pick out as one of our top 5 worst ideas.

The doctrine does not say that the President alone gets to decide the definition of war and the location of the war zone. What's war and what is crime can be fuzzy at the edges, but it's not something courts have hesitated to tackle, and at the end of the day is subject to a simple rule of thumb: if the attack originates from within, it's a crime, and if it originates from outside, it's an act of war.

Note the case of Nidal Malik Hasan, who was in contact with Al Awlaki before he killed 13 people at Fort Hood. The Department of Defense classified it as "workplace violence" rather than an act of terrorism, and it was absolutely the right call. The evidence showed that Hasan acted alone, and not at the direction of some external organization.

Worth noting that al-Awlaki himself took credit for Hassan's rampage.

Al Awlaki was tried in abstentia by Yemen in 2010. It is often suggested that a trial in abstentia by the U.S. would have been preferable for Al Awlaki, but to me, it's even scarier than the drone strike.

Legally, there are essentially two regimes: the domestic criminal regime, and the military regime. If you fall into the former bucket, there are lots of protections. Trials in abstentia, for example, are illegal and invalid: a defendant has a Constitutional right to appear at his trial. If you fall into the latter bucket, there aren't really any protections. When the U.S. fought Germany in WWII, German soldiers couldn't claim legal protections under U.S. laws.

Putting Al Awlaki into the "military aggressor" bucket is problematic, because of his citizenship, but not totally unprecedented. In World War II, it is almost certain that American citizens were killed by American forces while fighting for Hitler. Indeed, at least a dozen American POWs were killed in the Hiroshima bombing. It's morally troubling, but at least its encapsulated: you're in a war zone, a place without functioning rule of law, and pose a military threat, you're fair game.

Putting Al Awlaki into the domestic criminal regime, then trying him in abstentia, is REALLY problematic. If a terrorist is just a "really bad criminal," instead of a foreign soldier, then in what other cases of "really bad criminals" do Constitutional protections go out the window? It's not encapsulated, it's hard to cabin to the specific facts, and it amounts to an even bigger erosion of rights.

Your last few sentences have me very confused.

>"at least its encapsulated: you're in a war zone..."

Yemen is not a war zone in any sense of the word. There is no declared war on Yemeni soil. You could call it a "conflict zone", a term that could be applied to the vast majority of the developing world.

>"...a place without functioning rule of law, and pose a military threat, you're fair game."

According to John Yoo and Eric Holder maybe. There is plenty of dissent over this particular doctrine.

>"If a terrorist is just a "really bad criminal..."

Terrorists are really bad criminals. Are you able to draw a bright line between the two? If not, then what's the use of the distinction?

>"...instead of a foreign soldier..."

Al Awlaki was unambigously NOT a foreign soldier. He was never uniformed, he was not in a declared war zone, and he was not a citizen of a foreign nation. Unless I'm an idiot (always possible) there has never been any debate about this.

>"in what other cases of "really bad criminals" do Constitutional protections go out the window?"

None? A trial in absentia does not forcibly deprive the defendant of any rights if he is free to attend the trial, which Al Awlaki was. It would have been his choice whether to attend, and thus whether to take full advantage of his rights as a citizen.

Am I mistaken?

> Yemen is not a war zone in any sense of the word. There is no declared war on Yemeni soil. You could call it a "conflict zone", a term that could be applied to the vast majority of the developing world.

I don't understand this preoccupation with "declared wars." Who cares what you call it? The government simply does not have control over vast swaths of Yemen, and militant groups unaligned with the government are using it as a base of operations for attacks on people outside of Yemen. No, this does not characterize the vast majority of the developing world. Places like Yemen, Pakistan, and Somalia are in a totally different situation.

> Terrorists are really bad criminals. Are you able to draw a bright line between the two? If not, then what's the use of the distinction?

The line doesn't have to be bright, but it's crucial to draw the line. There is crime, and there is war, and the two are not the same thing. The regime applicable to external threats versus internal threats is very different. Maintaining this distinction allows you to better preserve the protections applicable to domestic criminal prosecution. If you try to shoe-horn well-financed international terrorists armed with military grade weapons into the framework of domestic criminal law, you end up distorting that framework and militarizing the domestic law enforcement apparatus. That's bad.

> He was never uniformed, he was not in a declared war zone, and he was not a citizen of a foreign nation.

You're elevating formality over reality. Al Awlaki wasn't unambiguously a foreign soldier, but aside from his U.S. citizenship he essentially acted like one. If a state affiliated actor had done the same thing, it would be considered an act of war.

> Am I mistaken?

Some procedural rights cannot be waived, and a constitutionally valid trial cannot be conducted without meeting that requirement. The historical understanding in the U.S. has been that trials in abstentia are unconstitutional, at least for capital cases. To date, the Supreme Court hasn't directly addressed the Constitutional issue (though it strongly implied it in Diaz v. U.S. in 1912), but has held that a trial in which a defendant is not present in the beginning of trial is defective for violation of Federal Rule of Civil Procedure 43 (Crosby v. U.S.)

From a practical viewpoint, trials in abstentia are a far more dangerous precedent than drone strikes. Sovereign countries already reserve the right to kill foreigners if they feel attacked by external threats. You can sugar-coat it with international agreements and treaties and whatnot, but fundamentally, every nation, as against external threats, embraces the sovereign right to kill people in other countries. That's the foundational basis for war.

The precedent for trials in abstentia in the context of domestic criminal prosecutions, however, is novel and scary in the U.S. and it's a stone better left unturned. It's better, for people back at home, to just say that people like Al Awlaki, through their long absence and actions abroad, simply relinquish their rights as U.S. citizens and can be treated as foreign enemies. Because you don't want the ramifications of the government figuring out how to deal with guys like him within the framework of domestic criminal enforcement.

You have faithfully channeled John Yoo, articulating the case for U.S. military action directed solely by the president, wherever and whenever he perceives a threat to Americans or American interests. It's bizarre to me that the failures of the Bush administration seem to have done little to damp the enthusiasm for this kind of thinking. You'll note, for example, the growing calls from various government officials to add drug cartels to the official list of terrorist organizations. Presumably to justify increased militarization of the War on Drugs.

I actually like John Yoo. I disagree with him, but I find no fault with those who don't. But I think it would be intellectually honest for you to admit that you've aligned yourself with a very contentious neo-conservative strain of political philosophy.

To be clear, I don't pretend to have any good answers here. I think I agree with you about trials in absentia. I don't agree that handing all the keys to whomever occupies the oval office is the best solution.

He's not channeling John Yoo. The President is acting under the express authorization of Congress, which authorization could be withdrawn, and with it the President's ability to drone strike people simply because they are on hostile soil working with al Qaeda. John Yoo's view of the authority of the "unitary executive" is far more expansive.

Of course, what you're actually doing here is invoking a bugbear (John Yoo is also notorious for conjuring quasi-legal justifications for abhorrent interrogation policies, including torture) to avoid engaging with what 'rayiner is actually saying.

Well Jeez, I really wasn't trying to invoke a bugbear. I'm reaching for a label. Yoo just happens to be the most prominent articulator (in my mind) of the ideas you guys are promoting. Do you disagree with that characterization? I didn't hear you protest the neo-conservative label, which I personally find much more pejorative.

As I say in my comment above, it seems that our fundamental disagreement is that I perceive a dangerous concentration of power in the executive, and you don't. If that's the case then we're likely at an impasse.

> I actually like John Yoo. I disagree with him, but I find no fault with those who don't. But I think it would be intellectually honest for you to admit that you've aligned yourself with a very contentious neo-conservative strain of political philosophy.

You're mixing up two related but distinct issues. Neo-conservatives believe that the authority to engage the military abroad is primarily invested in the President, and he can act to a great degree without interference from Congress. That is a controversial viewpoint. What is much less controversial is that, whatever the division of power may be between the President and Congress when it comes to exercising the sovereign powers of the United States abroad, there is no seat at that table for the judiciary. The idea that the courts are fundamentally domestic institutions, and may not infringe on the exercise of military power abroad except in the narrowest of cases is very broadly embraced.