Due Process With a Bullet

Tuesday, October 04, 2011

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

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

Critics of drone attacks call them “assassinations”, butthere is no difference whatsoever between a soldier sighting an enemy officerthrough a computer monitor or a rifle scope. There is also no legal distinctionbetween firing a bullet or dropping a bomb or launching a missile. The natureof the projectile or delivery mechanism matters in the tactical and strategicsense, 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 isassassination, that is a subjective difference on the battlefield. AndAl-Awlaki was not the first enemy officer targeted for death. Excessivenitpckers may raise legal questions about the legality of targeting enemyofficers under the rules of war, but anyone who thinks the rules of war applyunilaterally and unequivocally to a terrorist group that does not abide by anyrules is a hopeless case anyway.

Anyone who objects to the Al-Awlaki strike on due processgrounds should also ask themselves if they would have objected to the strike onAdmiral Yamamoto, the man behind Pearl Harbor and the strategic visionary ofJapan’s naval war, if Yamamoto had managed to pick up American citizenshipwhile in this country. 

Should the United States then have practiced a hands offpolicy on Yamamoto until the war was won and he could be brought to trial? Hadwe done that, we might not have won the war at all. And if we try to arrestevery enemy fighter on the battlefield who ever lied through his teeth whiletaking 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, orsimply defected or even deserted was denaturalized. Denaturalization strippedhim 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, theymeant stripping a deserter or traitor of his citizenship, rather than saykeelhauling. Justice Thomas has already shown the absurdity of this reasoning,but until the decision is overturned, we still have a Supreme Court ruling thatsays a man who turns his back on his country, joins an enemy army, vows itsdestruction and fights against it cannot be denaturalized.

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

Yet even setting aside the denaturalization issue, dueprocess simply does not apply. From the beginning of the War on Terror, itscritics have insisted on treating a war as a criminal action and insisting thatterrorists should be tried in civilian courts.

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

The justice system determines the guilt or innocence ofpeople within the society who are suspected of having broken the law. Itsprocedures are weighed in favor of the defendant to balance the power ofpolitical and judicial institutions. Since the system pits the citizen againstthe authorities, it favors the citizen to check government power and tocompensate 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 hasto walk a fine line so that the individual has a reasonable expectation ofsecurity from rogue individuals and from the authorities.

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

The former are protected by a military code of justice. Thelatter are protected only by their own standard of behavior which we reciprocatethrough treaties that govern wartime behavior. Or at least that is how it wasuntil enemy sympathizers and bleeding hearts took over our government, legalsystem and culture.

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

We betrayed this standard by failing to hold the other sideaccountable. Instead we unilaterally grant them protections that our own peopledo not receive. The worst victims of this have been our POW’s who can betortured, abused and executed, while enemy prisoners live the good life. Thisbetrayal long predates the War on Terror. It goes back all the way to World War2, to biological weapons experiments performed on American soldiers in Japan’sUnit 731 and the Malmedy Massacre carried out by the SS, fromthere to Korea and Vietnam, where American soldiers were starved and torturedand some vanished entirely. In Vietnam the abuse of American soldiers occurredwith the participation of liberal human rights activists like Jane Fonda, whocontinue to agitate on behalf of the treatment of enemy soldiers today.

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

The comforts of Gitmo already mean that the enemy hasabsolutely no incentive to keep Coalition troops alive, because he knows thatwhatever 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 terroristsand the refusal to classify terrorist attacks by Al-Awlaki’s acolytes at FortHood and Times Square as such has defanged even Gitmo, leading to a situationwhere the worst case scenario for a terrorist is free housing and all the Halalmeat he can eat (purchased by prisons from Muslim butchers and companies whopay that money forward to terrorist charities so that even while they sit inprison, they contrive to trick us into funding terrorism.)
But a further insistence on due process for armed terroristson the battlefield who show no signs of surrendering is a knife in the back anda white flag waved overhead. If we can’t kill one of the many Muslim terroristswho passed through Illinois, Boston or California and picked up the rightdocument 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 inAfghanistan, 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 geton board while the TSA boys and girls were busy strip searching nuns andinterrogating three year olds. Inside the carry-on is whatever scheme thebright boys in Islamabad or Paterson or Hamburg have worked for bypassing theinfidel’s security.  And hijacking aplane.

While everyone is watching the in-flight show, listening tomusic or snoring, Mohamed Syed manages to get inside the cockpit. There are oneor three bodies lying in the aisle behind him, but when the door closes, he isin 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 MicrosoftFlight Simulator to good use and chooses a target to ram. Maybe it will be theEmpire State Building. Maybe it will be Coit Tower. There are plenty of placesin this country with thousands of people packed in one place whose destructionwill make for great television.

“Allah Akbar,” says Mohamed Syed, and begins his finalapproach. Ahead he can almost see the virgins opening their arms to him justlike 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 andall the passengers as it splashes down into the water, but sparing thousands ofpeople in the city.

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

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

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

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

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

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

A sympathetic article will depict Mohamed as a deeplyreligious man who followed his convictions. A photo will show a bearded manwith soulful eyes and spectacles looking sadly at the camera. Experts will saythat his detention is unjust and unfair, and encourages more terrorist attacksagainst us.

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

But the good news is that Due Process was followed. And theWar 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 goon.

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 11hijackers and many other aspiring terrorists like the Fort Hood shooter and theTimes Square bomber. He didn’t guide Mohamed, because there is no Mohamed, butthere are many Mohameds who aspire to do carry out this scenario, and they lookto him for guidance.

His name is Anwar Al-Awlaki.

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

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