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

by ash 13y ago

tptacek 13y ago
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.
- ash 13y ago
  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_against_the_U.S https://en.wikipedia.org/wiki/Anwar_al-Awlaki#Lawsuit_agains....
  - tptacek 13y ago
    What hypothetical trial? The USG could not apprehend al-Awlaki without invading Yemen. No trial was possible.
    - ash 13y ago
      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.
      - tptacek 13y ago
        It is not, because trials in absentia, particularly criminal trials, and specifically capital trials, are unconstitutional in the US.
- work_account_1 13y ago
  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?
  - tptacek 13y ago
    How is that not a silly question?
- nate_meurer 13y ago
  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.
  - tptacek 13y ago
    And this was untrue of World War 2 how?
    - nate_meurer 13y ago
      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?
      - tptacek 13y ago
        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.
        nate_meurer 13y ago
        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.
rayiner 13y ago
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.
- nate_meurer 13y ago
  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?

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

by ash 13y ago

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.

ash 13y ago
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_against_the_U.S https://en.wikipedia.org/wiki/Anwar_al-Awlaki#Lawsuit_agains....
- tptacek 13y ago
  What hypothetical trial? The USG could not apprehend al-Awlaki without invading Yemen. No trial was possible.
  - ash 13y ago
    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.
    - tptacek 13y ago
      It is not, because trials in absentia, particularly criminal trials, and specifically capital trials, are unconstitutional in the US.
work_account_1 13y ago
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?
- tptacek 13y ago
  How is that not a silly question?
nate_meurer 13y ago
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.
- tptacek 13y ago
  And this was untrue of World War 2 how?
  - nate_meurer 13y ago
    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?
    - tptacek 13y ago
      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.
      - nate_meurer 13y ago
        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.

rayiner 13y ago

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.

nate_meurer 13y ago
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?