From the email bin:
Hi John Cole,
I’m a regular reader and I’m writing to say that I think your cut-and-dried posts on international law and the Constitution are really irresponsible.
On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him? How about your argument to rebut the government’s position that, under the Constitution, he has no basis to make a habeas-type argument because he is not being denied access to process, he’s refusing to submit himself to the judicial process in the US? On the state secrets doctrine, why do you neglect to mention the portion of the doctrine that requires an in camera review of evidence by a judge to determine whether what the government says is state secret information really is? What’s your response to the argument that Al-Awlaki’s father doesn’t have standing to bring a case on his son’s behalf because his son is perfectly capable of bringing such a case on his own and has shown no interest in it? Last, do you have a rebuttal to the argument that the case itself presents non-justiciable political questions that are outside of the purview of the courts? Do you believe that the Article III courts should be able to override the authority given to the other two branches in Article I and II for pursuit of foreign policy and military actions? How would you, as a judge, craft an injunction such as the one Al-Awlaki’s father is requesting? How would you enforce it?
I know, you’re not a lawyer, so you don’t care about these “legal technicalities” because you care only about broad moral arguments. Well, you know what? These things that you consider to be “technical” legal arguments are actually important parts of our system and all of them have larger, yes, moral components behind them. There are legions of judges and lawyers, both on the prosecutorial and defense side, that work day in and day out at this stuff and in good faith. These people don’t have the luxury that Greenwald does of arguing to the choir and simply disregarding any arguments that he deems not up to civil liberties snuff. (Has Greenwald ever seen a prosecutor’s argument that he thinks is not evil? You should compare one of his posts on the government’s case in Al-Awlaki to the government briefs. You’ll find he just skips over whole parts of their argument, probably because he has no counter.) They also don’t deserve to have their positions painted as “evil” by you, if you’re not going to make any attempt to understand what is actually going on.
On this stuff, you seem to be firmly in the, “Obama and Holder are war criminals and murderers — because Glenn said so, that’s why!” camp. It’s a shame that so many of your readers seem happy to go along on the “don’t bother me with the facts” train. That’s the irresponsible part of it.
My response is that the government targeting someone for death and refusing to explain why is so broadly offensive to me that I don’t give a shit about the legal arguments. I may be pigheaded and wrong, but that is where I stand.