When is killing okay?

When is killing okay?
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Who has the right to kill American citizens? And under what circumstances?

It’s the sort of ghoulish question one would hope has a fairly clear legal answer, but apparently not. It’s actually shaping up to be one of more contentious political debates of our time.

We got our first taste of the controversy last spring, when Orlando teen Trayvon Martin was shot and killed by a suspicious neighbor, George Zimmerman, following some degree of provocation that varies depending on whose apologists are telling the story. Zimmerman’s itchy trigger finger provoked a national outrage, and yet for a time it appeared there would no legal consequence for his zealotry. As a resident of Florida, he was covered by his state’s controversial “stand your ground” law, a generous re-imagining of “the right to self-defense” that swept the legislatures of gun-happy states in the early 2000s.

“Stand your ground” absolves a great deal of responsibility from shooters who believe their killings took place in an environment of imminent danger, with the key word being believe. Believing in a threat could now provide criminal immunity for any violence committed against strangers on one’s private property; as Slate‘s Emily Bazelon noted at the time, it was basically an extremely liberal expansion of the ancient English “castle doctrine” that held a man’s home was his castle, and thus a place where he had every right to, well, shoot first and ask questions later.

Apply “stand your ground” to the War on Terror and you basically get President Obama’s approach to foreign policy.

On Monday, a leaked memo from the Department of Justice revealed that executive branch lawyers have been working very hard to come up with constitutionally-sound justification for killing terrorists with American citizenship, such as noted 2011 drone victim Anwar-al-Awlaki. Their conclusion? It’s okay if we believe they’re a threat.

Now in theory, (and stay with me here) any American who commits terrorism is committing a crime, and under the Sixth Amendment, Americans accused of crimes have a right to be “informed of the nature and cause of the accusation,” and given the “assistance of Counsel” to defend them in “a speedy and public trial.” The Constitution says nothing about a judicial process that begins with a conclusion of guilt and ends with a missile to the face.

We do know, however, that the short-term need to protect the public from violent bad guys does make a full arrest and trial unfeasible in some circumstances. In 1985 the Supreme Court ruled that it’s constitutional for cops to shoot people posing an imminent “threat of death or serious physical injury to the officer or others,” for example, and I don’t think anyone would contest that this would have been a reasonable way to deliver justice to, say, Jared Lee Loughner during his massacre.

But while curtailing imminent danger is an easy standard to evoke while the SWAT team is gunning down a rampaging lunatic, in the world of terrorism things get a bit trickier. When exactly is a terrorist an “imminent threat?” When he’s about to press the detonator? When he’s building the bomb? When he’s thinking about building the bomb? When he’s filling out the Al-Qaeda membership form?

The answer, say the brightest minds of the Obama Justice Department, is “yes.” As Jeff Rosen notes in a fine piece in The New Republic, the leaked DOJ memo doesn’t even attempt to offer a coherent or persuasive definition of “imminent threat;” it’s merely noted that since Al-Qaeda is “continually” in the process of doing or plotting crimes, it stands to reason its members are never not existing in some state of death-deserving guilt. Or something. Basically it’s up to any person the memo describes as an “informed, high-level official of the US government” to hash it all out. We’ll fire on threats when we think we see one, they say. Florida would be proud.

Civil libertarians and anti-war lefties have reacted furiously to these non-revelations of a non-system of non-justice. “It summarises in cold legal terms a stunning overreach of executive authority: the claimed power to declare Americans a threat and kill them,” said the head of the ACLU; an “extreme and radical threat” to American freedom agrees Glen Greenwald.

Much has likewise been made about the chilling “apathy” or even support the idiot American public has given to this unapologetic government program to, in the words of The Onion “kill them,” but such hysterics seem just as crude and simplistic as the very act they’re trying to protest.

Obviously, the Obama Administration is not some cackling genocidal dictatorship hungering to slaughter American citizens on unprovable terrorist charges whenever and wherever they please, even on — as many  critics presume but the memos do not actually discuss — American soil. And obviously the most plausible real-world alternative to drone-killing terrorist Americans is not their clean arrest and tidy trial, but rather nothing. The whole point of drones in the first place is to kill people hiding overseas who can’t easily be captured, and while the thought of summary wartime executions of rebel Americans may make some squeamish, it would require a very strange mix of conspiratorial cynicism and naive optimism to believe the Obama doctrine is not at least trying to achieve some national security good in its own confused way. Who’s willing to the case for not trying at all?

The big existential question of the War on Terror (2001- ) is whether the legal and constitutional contortions required to fight a perpetual war against a vaguely-defined, non-governmental enemy represent a sacrifice Americans are willing to make. Not because, as the sensationalists argue, these offenses against the sanctity of the Bill of Rights and due process actually pose any imminent risk (there’s that phrase again) to the safety and security of their own complacent lives on the couch, but rather because of the more abstract, but still embarrassing, stain of hypocrisy and tyranny it puts on their country’s founding ideals.

A White House willing to strategically strip the rights of the infinitesimally small segment of the America population willing to move overseas to commit treason may not cause much consequence for US democracy in any obvious or noticeable way, but it will set precedent and it will be known. It will be a casualty of the war; the questions is whether it’s within the acceptable range of loss.


  1. Trevor

    I'm not sure where I remember hearing it, but a little while ago it was well-noted that the world is no longer made up of wars between countries but wars between ideals. And ideals are something that are expressed by individuals, not nations. This movement by Obama seems like an arguably reasonable response to this. We no longer are going to declare war on a country, we are going to declare war on a group, in this case Al-Qaeda. That group, as a whole mind you, has a history of acts of aggression/war/terrorism against America and its allies, therefore any member of that group has to be considered a member of their war party and someone who will eventually be involved in these acts. It's like marching into a country during war-time, there's a strong push to shoot first ask questions later, because if you don't there won't be a later. Only now there is no country.

  2. Kopiok

    I notice you got a thumbs down, but I think that view is unequivocally, absolutely, the view held by people who support the War on Terrorism. It's the fundamental ideal that those against can't fathom holding, and those for can't fathom not holding. The kind of fundamental view that divides people and is steadfast.

    Very interesting.

  3. Jake_Ackers

    The problem isn't doing this to terrorists. The problem is that what if an average American gets labeled a terrorist but isn't? It's not like the US has never killed innocent people or wrongfully convicted anyone…

    This is a war of ideals. And because it is about ideals, throwing away the one thing that defends our own citizens is a big deal. Especially if that ideal shows the terrorists how wrong they are. Giving all US citizen trials before execution shows that we value civil liberties and rights even for those who are trying to take us out.

  4. @AblativMeatshld

    The difference between The Memo and all the other examples is "judicial oversight". Zimmerman is on trial, a cop that shoots someone has to face a review, and anyone executed by the state has seen trial and many appeals. The "if we think they might be doing something bad we can kill them" has no mechanism for any review of any kind.

    And that is what bothers me, more than anything. I mean, I dislike strongly the "we offer no proof before the act" part, but the "no one gets to look at what we HAVE done and see if it was OK" is more than a little scary.

  5. Zulu

    I'm from Florida and this comic is hilarious.

  6. @SideshowJon36

    Zimmerman was in the process of being beaten to death when he shot Martin (who was not a neighbor). He's exactly the case we need conceal-carry laws and stand your ground laws. Hence why the police did not arrest him until the press took over the case

  7. Gooji Jung

    Yeah, as the actual details of the case have come out, the Zimmerman story has made a complete 180. Almost everything initially reported turned out to be misleading if not outright false. JJ sounds like he hasn't reviewed the facts in his post here.

  8. zaitcev

    For all his posturing as independent pundit, JJ loves to fall for the media-constructed false narratives. The besmirching of Zimmerman is the prime case, but I have to wonder what else he uncritically repeats. In particular, elements of canadian life make me question the portrayal in the strip. But I appreciate the never-falling humour.

  9. Jon

    I think it's pretty ridiculous Obama is being given grief over this. Like it or not America is at war. This guy was a senior member in the group that we are at war with.

    In WWII did we prove that every Nazi we bombed was guilty of something before bombing him? This is really no different. The fact that he's America is inconsequential, he's Al Qaeda, and he cannot be arrested because he left the country. If this was WWII and he was any Nazi, there would be no qualms about blowing him to the sky whether he's American or not.

  10. Jake_Ackers

    There is a difference. Obama isn't bombing hundred of terrorists at once and this one American get killed in it. He TARGETING an American. The US Constitution says you can't execute someone without trial. If its part of a general bombing or soldier are fighting and the American picks up a gun and shoots. Fine. But the President is sending a kill order to ONE American. Yah that's completely unconstitutional. Fighting a war is one thing, but sending execution orders is a complete other.

    5th Amendment: "No person shall be […] deprived of life […] without due process of law".

  11. @RicardoB

    There were lots of civil rights abuses during WWII. Interment of Japanese-Americans was perfectly acceptable then as well.

    Even if conceding that the president should have the authority to kill an American citizen in that context, without exception there should be oversight over each kill.

  12. bificommander

    I hadn't heard any of that, and a quick google search turns up one picture of Zimmerman with a bloody nose. Not exactly air-tight evidence that Zimmerman did absolutely nothing wrong, was attacked unprovoked, and shot in full self defense. What are your sources?

  13. Gooji Jung

    Here's a fairly complete run down by abc. It basically reflects my understanding last time I heard any details about the case. It includes a more up-to-date picture of Martin as well, which helps.

    As far as I can tell, the only remaining contentious point is whether Zimmerman was actively pursuing Martin when he was attacked, or if he was returning to his car as he claims.

  14. bificommander

    While both the principles and legality of drone killings of American citizens is important, as a non-American it rather frustrates me that the 'American citizens' part is the only part that seems to be under fire by Americans, barring a handful of far-lefties. I'm not very comfortable with the idea that the US can, based on the above mentioned vague suspicions, kill anyone, anywhere, as long as they DON'T have US pasport.

    And while I don't need convincing that there's a large number of very odious groups of extremists in Pakistan, I can't say I blame them for being angry when a drone bombs a house and kills a bunch of people, based on the suspicion of a US official that there was an Al Quaida member in the house. It's risky of the US too, I think any government of the nation where a strike took place has a case if they want to take the bombing as a casus belli.

  15. gattsuru

    As a resident of Florida, he was covered by his state’s controversial “stand your ground” law…

    That's not actually the case. Florida's "Stand Your Ground" law has to do with duty to retreat, which is not terribly relevant if you're claiming someone was grappling with you. Zimmerman's attorneys have pushed a non-stand your ground conventional self-defense plea, and legal experts actually familiar with the field — rather than random politicians — were saying that it was pretty unlikely for SYG to matter.

    “castle doctrine” that held a man’s home was his castle, and thus a place where he had every right to, well, shoot first and ask questions later.

    "Castle doctrine" varies from state-to-state, but it's always more complicated than that. At the very least, the intruder must be acting illegally for castle doctrine laws to apply, and most states also require than the illegal action be one of a limited number of acts (attempts at arson, assault, murder, sometimes burglary).

  16. Jake_Ackers

    Good point. Furthermore I think the castle one applies mostly to your own house or property. Doesn't it?

  17. Colin Minich

    Florida's criminal law has undoubtedly left me scratching my head more than any other state to include California and New York. While I will lean closer to the side of Trayvon as Mr. Zimmerman ignored dispatcher warnings to confront the issue head on, his dubious defense of self-defense makes matters more troubling. He is out on the open street and pursuing someone he thinks is shady, again ignoring dispatcher advise which is a lot more professional than his neighborhood watch status. Lo and behold Trayvon is dead and a media crapstorm ensues. Just listen for once and then things like SYG or castle law won't be an issue, unless this is just inevitable which God Almighty I hope not. Trayvon, upon investigation, looked like no felon. George still has a lot to answer for.

    Now regarding the drone strikes. While I see the possible precedent of abuse of power, I do not see this nefarious Nero of our time waiting for any media dissident to be struck simply for an insult. I consider it just when other options of capture are exhausted or impossible, and in the case of Anwar al-Awlaki, a confirmed traitor, the drone attack was a fitting response to the crimes of facilitation of murder and treason upon the United States. Trial was impossible. INTERPOL and US forces couldn't get to him without some alert or casualty. This concerns US citizens, mind you, which while citizens once aligning themselves with radical terrorism give up most of their rights with their shoot upon sight attitude of their former citizens.

  18. Jake_Ackers

    The problem isn't even the person killed. It's the precedent it sets. Now any American labelled a terrorist can get taken out by the President at will. Whether it is Obama's intention or not.

    I agree that as you said if all "other options of capture are exhausted or impossible" then it is fine. If the person is given an arrest warrant and everything else fails then take them out. Ideally I think he should of been taken out as part of a general bombing. Not a specific let me target this one individual. That would of went around the constitutional minefield.

    Let me put it this way. If he was taken out as part of a general military bombing fine. But what if we had another Nixon that just wanted to take someone out. What if an American citizen runs away to Morocco. Either from Afghanistan or directly from the US. It's not a warzone in Morocco. We can easily get him there. But what if the President uses this Obama doctrine as a precedent? The new President labels him a terrorist and then orders the CIA or whomever else to take him out.

    The problem is not that Obama killed the terrorists. It's that he did it with a kill order whether formal or not. He should of just made it part of some general bombing, terrorist clearing operation. Again the problem isn't Obama nor this case. It's what this case sets as precedent.

  19. Colin Minich

    Let me be clear with this. Anwar al-Awlaki had made it so capture and negotiation were impossible. The man was a confirmed traitor by words and actions, paper trails leading to the allegiance and funding of AQ activities and Islamic extremist terrorism. He doesn't need to pull the trigger to be a traitor. The Rosenbergs are crystal clear proof of this.

    I know the precedent exists, but like JJ said…
    "We do know, however, that the short-term need to protect the public from violent bad guys does make a full arrest and trial unfeasible in some circumstances"
    "Obviously, the Obama Administration is not some cackling genocidal dictatorship hungering to slaughter American citizens on unprovable terrorist charges whenever and wherever they please, even on — as many critics presume but the memos do not actually discuss — American soil. And obviously the most plausible real-world alternative to drone-killing terrorist Americans is not their clean arrest and tidy trial, but rather nothing. The whole point of drones in the first place is to kill people hiding overseas who can’t easily be captured, and while the thought of summary wartime executions of rebel Americans may make some squeamish, it would require a very strange mix of conspiratorial cynicism and naive optimism to believe the Obama doctrine is not at least trying to achieve some national security good in its own confused way. Who’s willing to the case for not trying at all?"

    I guess I'll have to refrain my concern for when an American Caligula comes aboard. Until then, it's a clear message to Americans that this is the price of your treason.

  20. Jake_Ackers

    I know it is in the name of security. But it's not like it hasn't happened before. Interment camps, wiring tapping of individuals with and without warrants, the Trial of Tears, innocent people executed etc. etc. It's not that far-fetched for one American to mistakenly be viewed as a terrorist while aboard and get caught up in the situation.

    I'm not saying Obama misused this the way a dictator would. Congress should develop a process though to take out America clearly labelled as terrorists. Like a military tribunal or committee would review the information and present it to a judge. Kind of like a pre-trial without the person there but still have a defense attorney.

    The judge then issues a warrant in addition to the President's letter of marque. At least this way the President has some legal backing short of actually taking the terrorist to trial and execution. The the President can try to arrest the terrorist. When he has exhausted all his options then he can take out the terrorist as Colin has mentioned.

    I just feel their should be more hoops to jump through before the actual execution of a terrorist. At least there is a check. Should he have been taken out? Yes, bullet or bombing or w/e else. Just wish there was a bit of more check and balance on this for FUTURE cases. At least some legitimacy other than just a Presidential kill order.

  21. Colin Minich

    There probably are more hoops to jump through than you'd think. Everyone seems to think this is some sort of willy-nilly declaration, which is what irks me. Procedural kinetic targetic is pretty damn bureaucratic when you break it down and I've actually experienced this in my time at DC. A man hides himself in Yemen and will shoot on sight any attempt to apprehend him. I find it more than difficult to convince me he's given up his right to due process the second he allies himself with an American enemy and will try to kill anyone who wants him in court. They gave him his chance.

  22. drs

    "a confirmed traitor"

    Confirmed how? Was he tried? Oh no, you say not. Was he even *indicted*? Also no.

    The executive branch said "he's a bad man, we're out to kill him" — not take him, kill him — and did so. And his 16 yo son too.

  23. Colin Minich

    Actively funding and inciting terror attacks including the Fort Hood shooting? Traitorous behavior.

    I love it. You really think trial and indictment are that easy. God…oh man…my sides.

    Get off your high horse. The man was a God damn traitor when he decided to ally with AQ in Yemen. His son? The son was also a member under AQ in Yemen's media director. He knew exactly what he got himself into.

  24. Thornus

    He wasn't a traitor under the Constitution. "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

    There may be debate about whether he actually engaged in treasonous behavior, but let's say he did. To still be convicted of treason and be declared a traitor, there has to be testimony by two witnesses given an overt act or a confession in open court. Neither of those happened. Might they have had we been able to put him on trial? Possibly. But they didn't. By targeting him with drones, the administration is depriving an American of Due Process AND violating the Treason Clause.

  25. Colin Minich

    Yet detention/apprehension was all but a fleeting dream.

    "Testimony of two Witnesses" – I guess his ties to the Fort Hood shooting and the publications inciting violence against Americans doesn't count? His open adherence to AQ and pledge of loyalty to them? The money trails? Evidence to me overrules this outdated requirement. But I guess the Rosenbergs are also sympathetic folks to the bleeding hearts too.

    I understand the verbiage…but I think in these times in such an electronic and shadow war going on, it's outdated.

  26. Thornus

    You can argue it's an outdated requirement. That's a respectable opinion. However, it is still currently a set in stone requirement. If as a nation we think that the two testifying witnesses or opinion admission in court (not just open adherence to Al Qaeda and pledge of loyalty) is no longer necessary to prove treason, then there should be a constitutional amendment changing that. However, without that, the Constitution clearly requires that those elements must be met to prove treason.

    Also, the Rosenbergs were convicted of espionage, not treason. It was a work around the constitutional requirements.

  27. Zael

    You do remember trayvon martin assaulted Zimmerman for no reason, He was a no good druggie , Also dispatchers have 0 authority to command you to do anything, Zimmerman was a watchman with a gun and he did his duty and wiped a thug from our streets.

    Obama should be tried in New York for crimes against humanity for his support of the Islamic Winter

  28. Jake_Ackers

    If this was George Bush he would of been impeached by now.

  29. drs

    George Bush, who brought back torture and created the idea of "enemy combatants", holding US citizens in prison for years without trial? Obama didn't invent the trend of taking away our civil liberties in the name of fighting terrorism, he's just continuing it.

  30. Jake_Ackers

    Well Bush's methods were all gray scale. This execution of Americans is clearly violating the 5th Amendment. My point is this would of been the straw that broke the camels back and would have resulted in Bush getting impeached.

  31. kentoikeda

    The American people don't care about this kind of thing though. That nobody cares that Obama is doing it should be proof enough of that. The Democrats wouldn't have risked doing something that appeared so partisan and divisive, especially when risking a sort of Clinton revenge narrative when Hillary Clinton was running in 2008.

  32. Zael

    Well don't you know, Black jesus can't do anything wrong.

  33. JonasB

    I think the drone memo is more vague than I'd prefer, but it's not something I consider an active problem. Just because something says 'reasonable suspicion' or 'reason to believe' doesn't mean its some vague wording meant to let anyone get away with anything. The burden on the government for reasonable belief is much, much, much higher than it is on a civilian. The comparison to the Trayvon Martin case is flawed because Zimmerman acted in the heat of the moment. With the drones, targets are researched and understood and deliberated. 'Reasonable belief' consists of a giant file folder marked Top Secret, not some gut feeling or personal whim.

  34. Zael

    You mean trayvon a open drug dealer and thief who assaulted Mr.Zimmerman for no reason besides that he was white. Acted in the heat of the moment

  35. Thornus

    Reasonable suspicion and reasonable to believe are definite standards the government has to prove if held accountable in court. Part of the problem here, though, is there is no accountability in court. The executive branch says there's a reasonable suspicion, and that alone orders the drone strike. At least with the Zimmerman case there will be some manner of accountability.

  36. Mark W

    Sorry–but this is plain wrong. Lethal force is authorized only if the assailant poses an immediate threat of grievous bodily harm or death and has the ability and opportunity to carry out that threat.

    The drone memo is about possible terrorist acts in the future, without the immediacy of the threat being present. I believe those types of drone strikes to be wrong, but that's a completely different argument.

    Read some case law and a few legal commentaries before posting this type of sensationalist crap. Blowing up suspected terrorists in Pakistan is not the same as shooting a rapist or a potential murder.

  37. Justin Tim Cabaret

    Ship up or ship out is whose saying to bear? For instruction only leads to the domino affect, which consequentially ends with all being down on their luck dare I boot. If amendments provide for us the rights to availability of the use in our constitutional countries democratic repute, then to what is the need for the freedom to exercise these rights become too astringent due to the void that may or may not be filled in the misconstruing of the necessity of circumstance? If this is some relief to gun totting nationalist,who have formed coalitions to exercise this freedom,then what government can actually say there intentions are fully met with all the over abundance of violence happening to the country? Henceforth that was just mentioning the country and not the terrorist realm that constantly plot Americas death, chanting over and over death to America. I mean if we don't fully take this into consideration with already blatant concern laid on the table by such people,then what is there to wait on? 911 all over again? How many Homeland groups is necessary to fine tooth it to weed out such plots? For thoughts in any direction are of concern,but how does one justify a thought compared to action readily being pursued with aims of destruction to our nation and not anything good? Are we really that far off since we live in a country effected only by a handfull of offense's, instead of a war torn region which is a daily reminder that life is but an instance in which we wait for mortar to fall from the sky? Maybe this is unfair comparison,but really any attack against the American people is outright disregard for republic and can not and will not be tolerated. One chink will lead to the trickle that we chased for years till we finally got Osama. Does this need to be anymore clearly apparent in regards to actions that have already been pursued by our military? I know we are shamed in somes eyes for sending the military in to do what is just in the name of the people of this world, but how do those who see shame not recognize that al-Qaeda is a trained militia of sorts, that is sent by whom they have as their rank and file to do their will? Do we feel bad every time the media reports another successful drone strike? Or all of sudden do we become patriotic and start waving flags for the brave who have risked their lives to keep order in our civilized world? Are we truly considered over bearing for stomping ground thats not ours, muscling our might on people who could obviously care other wise? Serious, these are just mere insights that anybody can fantom should they even care of what is to be of the United States. If any should protest the involvement of American military in such actions, does there need to be any other point to be had by what is blatantly obvious as disregard for the American people's way. Terrorist have acted out for far too long, that to say our waste of resource towards are goals of alleviating war torn countries, in which at this moment are trying to assert there will on the prospects. I mean how does foreign policy not become the preemptive? It is so readily defined, that the only volatility is there assumed governmental role and actions that are either gratified by the public or disdained. With the mass of insurgents and the lack of foreseeable intelligence to validate the necessary targets for strikes based on factual assertion of involvement with Al-quaeda, then what more can one speak on? They have already fortified the stance we take on such towards those who choose to be terrorist and not allies, so welcome to the beauty we call the United States of America. It is this greatness that chaos has no ability to run amuck, and for all them great reason we are the glimmering statuesque country who does not tolerate dissidence or has no appreciation for the founding principles that have become our constitutional regime. If these reigns are held so tightly,how does anything slip through as criminal? If criminalistic intent and apprehension is the reasons for over crowding, then to what are non-citizens of our land to be contrasted and contended with? I guess the filtration into some reasonable situation in which can be handled by the government in which we trust,has no reason to confer upon the issue at hand.

  38. JonO

    I'm not sure I get your point(s) … some sort of translation may be desirable … and a bit of English usage.

  39. Slip And Fall Lawyer

    It's fantastic that you are getting ideas from this piece of writing as well as from our argument made at this place.