Daniel Greenfield article: Due Process With a Bullet

Posted: 04 Oct 2011 08:15 PM PDT

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

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

Critics of drone attacks call them “assassinations”, but there is no difference whatsoever between a soldier sighting an enemy officer through a computer monitor or a rifle scope. There is also no legal distinction between firing a bullet or dropping a bomb or launching a missile. The nature of the projectile or delivery mechanism matters in the tactical and strategic sense, 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 is assassination, that is a subjective difference on the battlefield. And Al-Awlaki was not the first enemy officer targeted for death. Excessive nitpckers may raise legal questions about the legality of targeting enemy officers under the rules of war, but anyone who thinks the rules of war apply unilaterally and unequivocally to a terrorist group that does not abide by any rules is a hopeless case anyway.

Anyone who objects to the Al-Awlaki strike on due process grounds should also ask themselves if they would have objected to the strike on Admiral Yamamoto, the man behind Pearl Harbor and the strategic visionary of Japan’s naval war, if Yamamoto had managed to pick up American citizenship while in this country.

Should the United States then have practiced a hands off policy on Yamamoto until the war was won and he could be brought to trial? Had we done that, we might not have won the war at all. And if we try to arrest every enemy fighter on the battlefield who ever lied through his teeth while taking 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, or simply defected or even deserted was denaturalized. Denaturalization stripped him 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, they meant stripping a deserter or traitor of his citizenship, rather than say keelhauling. Justice Thomas has already shown the absurdity of this reasoning, but until the decision is overturned, we still have a Supreme Court ruling that says a man who turns his back on his country, joins an enemy army, vows its destruction and fights against it cannot be denaturalized.

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

Yet even setting aside the denaturalization issue, due process simply does not apply. From the beginning of the War on Terror, its critics have insisted on treating a war as a criminal action and insisting that terrorists should be tried in civilian courts.

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

The justice system determines the guilt or innocence of people within the society who are suspected of having broken the law. Its procedures are weighed in favor of the defendant to balance the power of political and judicial institutions. Since the system pits the citizen against the authorities, it favors the citizen to check government power and to compensate 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 has to walk a fine line so that the individual has a reasonable expectation of security from rogue individuals and from the authorities.

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

The former are protected by a military code of justice. The latter are protected only by their own standard of behavior which we reciprocate through treaties that govern wartime behavior. Or at least that is how it was until enemy sympathizers and bleeding hearts took over our government, legal system and culture.

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

We betrayed this standard by failing to hold the other side accountable. Instead we unilaterally grant them protections that our own people do not receive. The worst victims of this have been our POW’s who can be tortured, abused and executed, while enemy prisoners live the good life. This betrayal long predates the War on Terror. It goes back all the way to World War 2, to biological weapons experiments performed on American soldiers in Japan’s Unit 731 and the Malmedy Massacre carried out by the SS, from there to Korea and Vietnam, where American soldiers were starved and tortured and some vanished entirely. In Vietnam the abuse of American soldiers occurred with the participation of liberal human rights activists like Jane Fonda, who continue to agitate on behalf of the treatment of enemy soldiers today.

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

The comforts of Gitmo already mean that the enemy has absolutely no incentive to keep Coalition troops alive, because he knows that whatever 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 terrorists and the refusal to classify terrorist attacks by Al-Awlaki’s acolytes at Fort Hood and Times Square as such has defanged even Gitmo, leading to a situation where the worst case scenario for a terrorist is free housing and all the Halal meat he can eat (purchased by prisons from Muslim butchers and companies who pay that money forward to terrorist charities so that even while they sit in prison, they contrive to trick us into funding terrorism.)

But a further insistence on due process for armed terrorists on the battlefield who show no signs of surrendering is a knife in the back and a white flag waved overhead. If we can’t kill one of the many Muslim terrorists who passed through Illinois, Boston or California and picked up the right document 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 in Afghanistan, 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 get on board while the TSA boys and girls were busy strip searching nuns and interrogating three year olds. Inside the carry-on is whatever scheme the bright boys in Islamabad or Paterson or Hamburg have worked for bypassing the infidel’s security. And hijacking a plane.

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

“Allah Akbar,” says Mohamed Syed, and begins his final approach. Ahead he can almost see the virgins opening their arms to him just like 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 and all the passengers as it splashes down into the water, but sparing thousands of people in the city.

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

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

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

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

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

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

A sympathetic article will depict Mohamed as a deeply religious man who followed his convictions. A photo will show a bearded man with soulful eyes and spectacles looking sadly at the camera. Experts will say that his detention is unjust and unfair, and encourages more terrorist attacks against us.

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

But the good news is that Due Process was followed. And the War 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 go on.

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

His name is Anwar Al-Awlaki.

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