No Comment — October 4, 2010, 10:34 am

A Footnote on Quirin

A number of readers have written asking questions about the construction I put on Ex parte Quirin in a recent post about the al-Awlaki case. Do I really believe that Quirin authorizes the president to assassinate U.S. citizens away from a battlefield, they ask? The answer is simple: no. I discussed the history of this case in “State of Exception” in the July 2007 issue. Ex parte Quirin does not stand for the proposition that the president is entitled to order the extrajudicial killing of an American citizen or anything of the sort. But it does stand for the idea that in wartime the fact that an enemy combatant holds a U.S. passport is generally irrelevant to his treatment under the laws of armed conflict. Quirin involves a challenge to a military commission convened by President Roosevelt to try a group of German saboteurs who came ashore in Long Island and Florida during World War II. They were quickly rounded up and charged with violations of the laws of war and conspiracy to violate the laws of war and tried before a military commission created by presidential order. Louis Fischer provides an excellent summary of the case and its implications here. (PDF) All eight German saboteurs tried in that case had lived in the United States and had a fluent, colloquial command of American English; two were United States citizens. One of the issues unsuccessfully raised by their counsel was the notion that the two U.S. citizens were entitled to access to U.S. courts and should otherwise be treated differently from the other non-citizen German saboteurs. The Court did not address the detailed questions about the consequences of U.S. citizenship, except to observe that U.S. citizenship of an enemy belligerent “does not relieve him from the consequences for a belligerency which is unlawful because in violation of the law of war.”

That is all I was referring to. The Bush Administration relied heavily on Quirin to support what it did in Guantánamo. That posture was fundamentally mistaken: we can start with the fact that the Quirin court was not dealing with the 1949 reiteration of the Geneva Conventions, which has Common Article 3 and in which spies and saboteurs were placed in a special position, with inferior rights to other prisoners, but still with some limited protections. The Supreme Court got this right when it decided Hamdan.

So how does this apply to al-Awlaki? The question is whether it does. If the Obama Administration can show that he really is an enemy belligerent in a U.S. war with al Qaeda and its associated forces, then it might be entitled to use lethal force against him. The problem here seems to be that al-Awlaki is not on any currently recognized battlefield. He is living in a house somewhere in Yemen, communicating with the world by phone and Internet. Still, if the Obama Administration can show that he is actually part of some command-and-control system for the enemy, and he is actually using his position to direct violent acts against Americans and American interests, then it would be entitled to use lethal force against him, subject to limitations concerning harm to innocent civilians around him and so forth. At one point I thought the Obama Administration was going to try to make this case; now they seem to have pulled back from it and instead want to rely on vague claims of executive power. And that is deeply disturbing.

It makes more sense for al-Awlaki to be captured alive, interrogated, and then charged and prosecuted for whatever crimes the government can show. If the Obama Administration is attempting to do this, then it should make clear that this is in fact its objective, not the validation of some vague presidential power to assassinate.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 168 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

March 2019

The Story of Storytelling

= Subscribers only.
Sign in here.
Subscribe here.

The Myth of White Genocide

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
No Joe!·

= Subscribers only.
Sign in here.
Subscribe here.

In the heart of the US Capitol there’s a small men’s room with an uplifting Franklin Delano Roo­sevelt quotation above the door. Making use of the facilities there after lunch in the nearby House dining room about a year ago, I found myself standing next to Trent Lott. Once a mighty power in the building as Senate Republican leader, he had been forced to resign his post following some imprudently affectionate references to his fellow Republican senator, arch-segregationist Strom Thurmond. Now he was visiting the Capitol as a lucratively employed lobbyist.

Article
The Myth of White Genocide·

= Subscribers only.
Sign in here.
Subscribe here.

The squatter camp outside Lawley township, in the southwest of Johannesburg, stretches for miles against a bare hillside, without electricity, water, or toilets. I visited on a blustery morning in October with a local journalist named Mophethe Thebe, who spent much of his childhood in the area. As we drove toward the settlement he pointed out land that had been abandoned by white Afrikaner farmers after the end of apartheid in 1994, and had since been taken over by impoverished black settlers who built over the former farms with half-paved roadways and tiny brick houses. You could still see stands of headstones inscribed in Afrikaans, all that remained visible of the former inhabitants.

Article
The Story of Storytelling·

= Subscribers only.
Sign in here.
Subscribe here.

The story begins, as so many do, with a journey. In this case, it’s a seemingly simple one: a young girl, cloaked in red, must carry a basket of food through the woods to her bedridden grandmother. Along the way, she meets a duplicitous wolf who persuades her to dawdle: Notice the robins, he says; Laze in the sun, breathe in the hyacinth and bluebells; Wouldn’t your grandmother like a fresh bouquet? Meanwhile, he hastens to her grandmother’s cottage, where he swallows the old woman whole, slips into her bed, and waits for his final course.

Article
Run Me to Earth·

= Subscribers only.
Sign in here.
Subscribe here.

They were released.

For the first time in seven years, they stood outside in the courtyard of the reeducation center. They looked across at the gate. They remembered none of this. The flagpole and the towers. The cameras. Prany counted the sentries in the towers. He heard the rattle of keys as the guard behind him, wearing a green uniform, undid his handcuffs. Then the guard undid Vang’s. They rubbed their free wrists. Vang made fists with his hands.

Prany dug the soles of his new shoes into the dirt. He watched Vang’s hands and then turned to see the building they had exited. It resembled a schoolhouse or a gymnasium. The flag flapped in the wind. The sun on him. The immense sky. His neck was stiff. He knew that if they were forced to run right now his legs might buckle. Not because he was weak, but because in this moment, in the new environment, out in the open, his entire body felt uncertain.

Article
New Books·

= Subscribers only.
Sign in here.
Subscribe here.

Ten years ago, a week after his sixtieth birthday, and six months after his first appointment with an oncologist, my father died. That afternoon, I went to my parents’ bedroom to clear up the remains of the lunch my mother had brought him not long before he collapsed. A copy of Yiyun Li’s novel The Vagrants, which he’d asked me for after I reviewed it in a newspaper, was open on his bedside table. He had gotten about halfway through it. The Vagrants isn’t what you’d call a consoling book—it centers on a young woman’s unjust execution in a provincial Chinese town in 1979—and I had mixed feelings about it being the last thing he’d read. Perhaps an adolescent part of me had been happy to let him have it out of a need to see him as a more fearless reader than he might have wanted to be just then. Still, my father had read Proust and Robert Musil while working as a real estate agent. There was comfort, of a sort, for me, and maybe him, in his refusal of comfort reading.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

Classes at a Catholic school in Durham, North Carolina, were canceled in anticipation of protests against a lesbian alumna, who had been invited to speak at a Black History Month event.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Happiness Is a Worn Gun

By

Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today