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Some of you might be of a mind to cheer, but before you do, consider this:
By what authority does President Obamacommand the US military?
That granted by the Constitution.
How is it not a violation of the 5th Amendment to hunt down and execute an American citizen without a trial?
A citizen's right to a trial is contingent either on his cooperating or his being captured. If he doesn't cooperate, it is the prerogative of the executive branch whether to capture or kill him.
It is not "illegal to kill a hostile citizen if he is a threat to others?"
in fact I think it is a duty.
No, it is the prerogative of the executive branch to attempt to capture him. Should he resist with lethal force, it then becomes the prerogative of the arresting officers to defend themselves as they deem fit.
After all, if I as a citizen of the United States were to commit or plan to commit a felony -- any felony -- and then make a run for a country with no extradition treaty, how could it possibly be the prerogative of the President to send a death squad after me?
Nobody is saying anything about executions in lieu of trials.
The U.S. military, like any other military force, can target combatants. So long as the cleric remains a combatant, he is a legitimate military objective. His U.S. citizenship does not change that reality. Hence, it is unlikely that the President's decision will be overturned.
If this were a criminal matter, that line of argument would be right.
However, when one is a combatant under the Laws of War
His citizenship means he has Constitutional rights which cannot be denied without due process.
It doesn't say "unless he's a really scary angry guy who wants to kill us."
It is a criminal matter. His alleged actions are addressed in the code of federal law as criminal matters.
I still can't get over how many times certain people said we weren't bound by the Law of War with respect to GITMO detainees . . . and suddenly now we are.
The due process argument is not relevant with respect to persons who are combatants. If the individual is captured, that's an entirely different matter.
If one were to have applied such an unwieldy interpretation of the Fifth Amendment, then the Union Troops would have had no constitutional authority to use deadly force in the Civil War against Confederate troops (U.S. citizens under the law, as such force deprived them of due process). There are no legal precedents whereby the Fifth Amendment could be applied to bar the use of deadly force during disorder that threatened lives, much less negate the military's ability to target combatants.
The U.S. has always been bound by the Laws of War. Such instruments preclude torture, among other things. Targeting a legitimate military objective is wholly consistent with proper application of the Laws of War.
Yes, it is relevant. It says "nor be deprived of life, liberty, or property, without due process of law." It is explicit, and as the highest law in the land, incontrovertible.
If you can demonstrate to me that this man wears the uniform of any military of any foreign government which is making war on the United States, then you can make that argument.
Otherwise, he's nothing more than an accused felon.
If all the President has to do to get away with killing any of us is to name us an enemy combatant, then what are our rights worth?
An enemy combatant is defined not by the President, but by the Laws of War. Indeed, in the 1942 Ex Parte Quirin case, the U.S. Supreme Court was crystal clear in its ruling that U.S. citizenship did not provide immunity to combatants and that their role as combatants was defined by the Laws of War:
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.
Since that case, the only thing that has changed is that the Geneva Conventions have been added to the Laws of War. Those instruments further clarify who is and is not a combatant.
I thought the whole mess with GITMO was that nobody could quite figure out how international law applied to "unlawful enemy combatants."
At any rate, since we can't point to a nation whose uniform this guy is wearing, and since we're not at war with Yemen, and since you can't be at war with an organization, this is all moot.
It's a criminal matter, not a war situation.
I defy anyone to prove that you can actually, under US law, go to war with an organization versus a nation.
Article I, Section 8 does not restrict declarations of war to nation states. It only states that "Congress shall have power...to declare war..." and "to...repel invasions..." To date, no U.S. Supreme Court case, much less decision, has limited that authority exclusively to nation-states.
Here's the ironic thing about you citing Ex Parte Quirin to me.
Ex Parte Quirin in no way stated that a combatant was stripped of all his legal rights. There is still due process to be found, even there.
Well, that, and while this cleric is about to be executed, Hans Haupt got his day in court.
Funny, that.
Well, then, let's see the declaration of war that authorizes us to go into Yemen and execute an American citizen without a trial.
No, my question presupposes that American citizens are entitled to Constitutional protections when pursued, captured, and detained by any authority of the United States.
The Constitution supersedes any treaty in matters of American law.
Ergo, the Constitution applies and the Geneva Conventions do not when it comes to the treatment of American citizens by American authorities.
Congress has repeatedly authorized legislation to fund the conflict with Al Qaeda.
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