Of Predator Drones and Due Process...

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Of Predator Drones and Due Process...

Was the attack that killed Anwar al-Awlaki and Samir Khan justified under US and International Law?

Just to give a basic framework of the discussion, the Palm Beach Post lays it out rather nicely:

The killing of the U.S.-born Al-Qaeda cleric Anwar al-Awlaki on Friday along with another U.S. citizen and two other Al-Qaeda operatives in Yemen is likely to fuel the international controversy over the legality and wisdom of the Obama administration's dramatically increased use of drone attacks.

For several years, U.S. allies have made no public comment, even as U.S. drone strikes have killed twice as many suspected Al-Qaeda and Taliban members than were ever imprisoned in Guantanamo Bay. But that acquiescence may change, as human rights groups and the media debate the legality and collateral damage of drone attacks. The U.S. drone program has been highly effective in killing senior Al-Qaeda leaders, but the administration needs to better explain and defend its use of drones to avoid losing international support and potentially exposing administration officials to legal liability

The U.S. position, under the Bush and Obama administrations, has been that drone strikes against Al-Qaeda and Taliban leaders are permitted by the September 2001 Authorization to Use Military Force Act, which empowered the president to use "all necessary and appropriate force" against nations, organizations or persons who planned, committed or aided the Sept. 11 attacks. The United States also believes that drone strikes are permitted under international law and the United Nations Charter as actions in self-defense, with or without the consent of the country where the strike takes place.

It’s perhaps easiest to start with the people who think that it was not justified, which seems to range across the political spectrum, but noticeably more present at the far peripheries.  From the far left, it is customary for me to start with Glenn Greenwald of Salon…

What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.  Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists: criminals who were at least given a trial and appeals and the other trappings of due process before being killed. 

Meanwhile from the right we have Presidential candidates Ron Paul and Herman Cain representing the libertarian and conservative wings.  First, Ron Paul:

"No, I don't think that's a good way to deal with our problems,” Paul said in a videotape of the questioning by reporters. Awlaki “was never tried or charged for any crimes. No one knows if he killed anybody. We know he might have been associated with the ‘underwear bomber.’ But if the American people accept this blindly and casually that we now have an accepted practice of the president assassinating people who he thinks are bad guys. I think it's sad.”…

“I think, what would people have said about Timothy McVeigh? We didn't assassinate him, who certainly had done it,” Paul said. McVeigh “was put through the courts then executed. … To start assassinating American citizens without charges, we should think very seriously about this.”

Paul argued that the killing of Awlaki was different from the attack on Bin Laden because Bin Laden was involved in the 9/11 attack on the World Trade Center in New York and the Pentagon in Washington.

 Frankly, the Ron Paul logic on this one escapes me entirely.    How is it different?  Bin Ladin was never put on trial either, so was it just that 9/11 changes it?  And who exactly makes the decision as to whether one event is strong enough to overcome the need for a trial, and another is not.  I’d like to give the Dr., the benefit of the doubt and assumed he was misquoted, and/or there was something else he said to bolster this line of thinking, but I have been looking for two days and found nothing.

Meanwhile, Hermann Cain is being no less difficult to pin down on this one.  On May 5 of this year, Cain said

"He should be charged. And since he's an American citizen, he should be tried in our courts," Cain said of al-Awlaki. When asked if he considered it legal for President Obama to order al-Awlaki killed, Cain said, "In his case, no, because he's an American citizen."


This week, somewhat inexplicably, he stated:

“I never said that [President Obama] should not have ordered [the killing]. I don’t recall saying that. I think you’ve got some misinformation," Cain said. "Keep in mind that there are a lot of people out there trying to make me sound as if I am indecisive."

“I don’t know all of the compelling evidence that the intelligence agencies and the military had. I’m convinced—I’m convinced that they have enough intelligence information that said he’s a threat to the United States of America,” Cain said. “You don’t try to prosecute or capture him simply because he’s a United States citizen.”

Unfortunately, we don’t have a particularly clear-cut explanation of the legal thinking of the White House, as the memo that was drafted is secret….

The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.

The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.

“What constitutes due process in this case is a due process in war,” said one of the officials, who spoke on the condition of anonymity to discuss closely held deliberations within the administration.


The closest that we have to a legal reasoning is a speech by John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism before the Program on Law and Security at the Harvard Law School:


In the face of this ongoing and evolving threat, the Obama Administration has worked to establish a counterterrorism framework that has been effective in enhancing the security of our nation.  This framework is guided by several core principles.

First, our highest priority is – and always will be – the safety and security of the American people.  As President Obama has said, we have no greater responsibility as a government.

Second, we will use every lawful tool and authority at our disposal.  No single agency or department has sole responsibility for this fight because no single department or agency possesses all the capabilities needed for this fight. 

Third, we are pragmatic, not rigid or ideological – making decisions not based on preconceived notions about which action seems “stronger,” but based on what will actually enhance the security of this country and the safety of the American people.  We address each threat and each circumstance in a way that best serves our national security interests, which includes building partnerships with countries around the world.

Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law.  And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress.  President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.


Now, I don’t really see much of a legal argument per se in there, but everyone else is pointing to this speech as the justification.  So, in the meantime, I guess we just have to guess as to what it is, and try to find a way to differentiate the Greenwald/Paul/Cain reasoning from that of the White House. 

Either way, what do you guys think?  Was the strike legally justifiable or not?


UPDATE:  This article in Military.com today gives me a little more to go on....

A secret panel of mid-level national security officials has been established that can put American citizens on a “kill or capture” list that is ultimately sent to the White House for final approval.

The panel’s recommendations first go through a group of National Security Council “principals” – meaning Cabinet secretaries and intelligence chiefs – for approval before reaching the president’s desk, according to a report today by Reuter’s.

There is no public record of the panel’s workings and no law actually establishing it or spelling out its functions.


I don't know if that makes me more or less apprehensive about this.  Is Congress cool with the President making this quasi-Judicial body without any legislative input? 

If anyone is reading an inherent bias on my part in the preceding, I'd love to know what that bias is, because I honestly have no clue how I feel about this whole thing.  I feel uncomfortable with secret bodies not authorized by legislation authorizing things like killings.  On the other hand, Awlaki needed to be ventilated and good riddance to bad rubbish.  But, we should always think worst case scenario with these sorts of things.  Can you envision a scenario where a US Citizen is killed abroad with a drone attack, and he didn't have what was coming to him?  Probably we all can.  So, what safeguard is there?  That's where I get somewhat lost. 

Update X2: The family of Samir Khan issued this press release today:

We, the family of Samir Khan, in our time of grief and mourning, request that the media let us have our peace and privacy during this difficult time.

It has been stated in the media that Samir was not the target of the attack; however no U.S. official has contacted us with any news about the recovery of our son’s remains, nor offered us any condolences.

As a result, we feel appalled by the indifference shown to us by our government.

Being a law-abiding citizen of the United States, our late son Samir Khan never broke any law and was never implicated of any crime. The Fifth Amendment states that no citizen shall be 'deprived of life, liberty, or property, without due process of law' yet our government assassinated two of its citizens.

Was this style of execution the only solution? Why couldn’t there have been a capture and trial?

Where is the justice? As we mourn our son, we must ask these questions.


The Khan Family.

I find that mildly ridiculous, because one of the last things Samir wrote was an article in the Al Qaeda Magazine entitled "I am proud be a traitor to America." So, he was a law-abiding self-professed traitor? Something doesn't add up there wouldn't you say?


My Friends at My Pet Jawa are also decidedly unpleased, and included this picture of Sami's article...

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Terrorists are where you find them, there is an open season on the enemies of America.

All who preach against the USA should stand aware of retaliation and retribution. We do need to stand firm with those who have demonstrated friendship and support, and for those weak kneed, beware. We need to protect our people civilian and military to the max. If you are not with us Stand by for a Kick ***.

Yes...yes...yes it's only one of the MANY things PRESIDENT OBAMA has done right. For many of you this president can't seem to get or do anything right! He has killed more top al qaida top people than the guy who started this whole mess. Give the president some credit please.

When they Coose to terrrorize their homeand and plan to murder their countrymen, they lose their right to be considered an American citizen

Did not the president (just has every other military member) take an oath to defend this land, it's people and it's constitution from "every enemy foreign and domestic"

If you share jihad against this country you are a terrorist to this country. A terrorist is a terrorist no matter what country they are from. Kiil em all Let their god sort them out.


His words not mine . Treason the punishment is death case closed

When a U.S. citizen takes up arms with a foriegn enemy against America or it's soldiers he forfiets all rights. Whether or not that meets the legal definition of treason is not material. He is an enemy trying to kill Americans and has, by his own actions, invited retaliation. The killing was just.

responding to MOTHAX - Interesting question, except that war was waged against an enemy force, not the government of a specific country. Were in Afghanistan too, what if the attack had happened there? The powers Congress granted to the Commander-in-Chief following 911 placed Anwar al-Awlaki squarely in the crosshairs of the theme and intent of these extended powers, which opened the door to use the clause of Fifth Amendment that allows military operations to by-pass the Due Process clause.

Certainly agreed on that.  And presumably we had the implicit permission of Yemen.  Honestly, having trouble coming up with a good hypothetical, so maybe I should quit while I am ahead.  I'm agreeing we are at war, even though technically, I think that might be legally an issue.

If there was a body of like 5 guys, 2 from the NSC, 2 military and a federal judge that makes uo this committee (and there may be, who knows) I would have no problems.

It was always my understanding that we swore an oath to defend against all enemies both foreign and domestic. A terrorist is a terrorist whether home grown or foreign. The military's job is to rid this country of terrorists. The job was done, our oath fulfilled.

"Due process" in a battle, is a useless ACLU tactic. Bomb all those bastards that hate this country so much. ESPECIALLY a US citizen that has decided to fight against us. TRAITOR!!

The killing was justified and the comments that he has rights, he left the USA and assisted Terrorist! What should be do?

Former President Bush used to use the word "cowards" to describe suicide bombers. You might call them misquided, crazy, brainwashed, or whatever, but coward is the wrong word to describe someone who has just given his own life for his cause. The use of drone aircraft to murder our enemies from the hidden sky by aircraft operated by technicians on the other side of the world seems to fit more accurately in the category of "cowardly," don't you think?

Traitors easily classified as enemy combatants whether or not they ever pulled a trigger. They recruited other traitors from within America and deserved to have been reduced to room temperature. I have no problem with the decision.

I was very torn about which side of this issue I supported when I initially read the article. (Mainly for the fact that I've been on the battlefield fighting those with whom Anwar al-Awlaki has chosen to align himself and also because I have seen the media hyper inflate and blatantly lie about circumstances to sell a story). As a devout believer in capital punishment I feel that it is absolutely necessary to take action against those that would murder or align themselves with our enemies. However, whatever Anwar's crimes, he was an American citizen first. Show me a video tape of him renouncing U.S. citizenship or first person account of him engaging U.S. servicemen/citizens and I'll back any effort that was made to remove him. I've worked on capture/kill panels and sometimes the information is only quasi tangible. That's good enough for me when the target isn't another American, but as an American Anwar's constitutional right of due process by his fellow Americans should be iron clad and uncircumventable by anyone especially the president, congress, or the CIA. This sets a precedent to open the door for oppression against American citizens by the U.S. government and substantiates fears ingrained in the many militias that have blossomed in recent years throughout our country. At a time when our nation is already at its most divisive since the civil war I think the consequences of such action have further reaching consequences than simply eliminating one enemy from the battlefield. This type of action makes the constitution more akin to a simple piece of paper rather than a credo by which we govern our nation.

As an enemy combatant, he no longer enjoys the rights, freedoms or privileges of an American citizen. He was a traitor whose intent was to kill our troops. No due process for him. No soup either. He got what he wanted. The wrath of a nation scorned. I completely disagree with 99.99% of what our President has done during his term, last term I'm hoping. But this, and the Bin Laden operation, right on President Obama. Obama. Really?

I am of the opnion that taking out this individual by way of a Drone was justified. He was a citizen of this great country and was trying to help in terroist attacks on this country and in fact on Americans everywhere. Again, justified.

Citizen or otherwise, once you declare war upon your own country; you become a target no matter the weapon system. Most especially when you are in another country, outside of home soil. It doesn't matter the country. If he was hiding in the US, then using a UAV would be over the top as its a military weapon system and the FBI, as well as other US LEAs, have the resources to take a man like that down through due process.

However, wasn't on US soil when he started directing attacks against the US. Therefore, he is a target on the battlefield. Personally, I think any criminal who runs from US soil should face the same fate should they continue to target the US. Drug lord, escaped rapist (Roman Polanski...), or terrorist; once they leave the US, the nearest CIA clandestine agency should be given free reign on what to do to them if they don't turn themselves in to face due process... How many folks would flee to Mexico under that kind of knowledge?

The slippery slope is upon us. At what point does due process take hold? Seems to me that the standard is clear, and deviations -situational ethics, really - haven't done this country much good. The hard right here is to apprehend, try, and - if found guildy - incarcerate. It's too easy to just kill people, and doing so undermines what we stand for, at home as well as abroad.

As far as I am concerned this individual had declared war on America and held the same status as an enemy general who may not be involved in the attacks personally, but is no less guilty because he directed them. I doubt that Yemen would have released him for extrdiyion anyway.

Individual citizens can give up their US citizenship, and all the rights that go with that, and these two terrorists did just that. This isn't even close. Killing them was justified and legal. ( I am a Liberal , so let's give that label a rest. I am a combat veteran and match my patriotism with anyone).)

Anyone who is a known and admitted enemy of the United States and plots to and sucessfully kills or is in direct association with the plotting and killing of our citizens deserves to be killed during a state of war. At this time, I believe, we are at a state of war against Al-Quida.

Definitely ok - capture and trying him, while nice, really in the circumstances was impractical and likely to end up with several fatalities to our armed forces. As an armed combattent the only logical way to deal with him is to terminate him in his chosen environment. The fact that he had defacto citizenship is an irrelevant smoke screen by bleeding heart knuckleheads. He would kill us all an not shed a tear - HE WAS THE ENEMY! His citizenship meant nothing to him, merely an accident of birth.

This is war, not a civilian crime and punishment situation. These people are our nation's enemies. They deserve whatever they get. And the fact that they got their just deserts from a missile fired from an unmanned drone is immaterial. Would have been the same if a soldier had shot them with his issue rifle.

It's not a tough decision for me. Regardless of the fact that he was a bad person, the white house memo is secret. If we believe blindly whatever the media says and our King, I mean president then we are heading in a dangerous direction. It not about al, its that fact that an American citizen was executed without due process.

Also, the comment how all the troops come home and then nuke em all is really disturbing. What is the difference between that and how German's felt about the Jews prior to wwII?

Finally it is the fact that the idea of assassinating an American citizen is put to the American people and it is accepted. I agree that Al was a bad man, if so then prove it and subject him to the stiffest punishment under the law. which for treason is...a dirt nap.

Regardless of the laws, it cannot be illegal or immoral to kill an enemy, civilian or military.

If they had 'em, they'd use 'em. I have no problem ferreting out the terrorist bastards!

No question, that is what liberals do. I dont' care if it was legal or not, he is dead.

Let the SOB rest in piece, he died a martyr! has his 72 virgins to last the rest of eternity, he's a happy camper now and We're ride of another piece of sh*t!!!!!!!!!!! It's war.

When he became a traitor by joining Al-Qaeda he was no longer a citizen of America! I don't care if we had to nuke Yeman to the ground to get him. No loss, just gain!

I think we should NUKE the whole damned place and end this for once.

I want all of you to remember that back in history, our founding fathers were considered traitors to England. They were also considered terrrorist in thier time. The British govenment had bounties on their heads. There is a specific reason our founding fathers created the 5th amendment. That reason was to protect people and to provide due process. The founding farthers knew that the 5th amendment was the best way to prevent anyone from deciding who live or dies without due process. No matter how bad the crime.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

What about Tim McViegh? Why did we waste all that money and time to bring him to justice when he was caught red handed with bomb making materials, admitted to the deed, and said that he would do it again? Was a kill order ever issued on him?

Do any of remember Aldrich Ames? Former CIA Intelligence Office and Analysts who sold out many field agents to the Russians? The biggest spy-traitor case in the U.S.? What happened? Why didn't the President issue a kill order on him? Didn't he deserve a bullet? After all, he risked the lives of thousands of CIA agents. But no, he was brought to trial, ulitmately convicted, and sent to jail for life.

What about Al Capone? We know that he ordered the death of many of his antogonists but the government never ordered his death based on the fact the "it was known that he was connected" to those deaths? As a matter of fact, Capone was brought to justice and did time in prison.

For those who say we are at war - the answer is No. Congress has never declared war. So, are we at war or are we in another unending police action?

But just remember, how we behave is the same way other nations will behave. Americans have never been at risk in foreign countries because we have always told them that no matter what you think, proper justice must be done. If we can can kill our own so easily, waht stops another counrty from killing our own if they have reason to beileve that an Amercan has wronged them.

As a former Marine, I will be be the first to defend and die for my country. But I defend the Constitution and the Bill of Rights. I defend our system that protects my rights and yours.

Thanks Paul, appreciate the comment.

Thanks. Stay safe brother!


Anwar al-Awlaki was an ememy combatant on foreign soil and killing him was justified. A war on terror is different in that the battleground can be anywhere.

Anyone advocating harm to the US or any of it citizens, especially a citizen deserves swift justice. Turn the other cheek debates do not work with someone wanting to die. Americans want to live as long as possible while terrorists want to die as soon as possible. Give them their wish before they do harm to someone else. The terrorist leaders hide while sending someone else to do the dirty. A US citizen that advocates the destruction of the us and flee's prosecution for it should be eliminated.

The only thing I find awkward about all this is defending President Zero for doing something so uncharacteristically right. This dirtback was an overt enemy of Western Civilization. The fact that Islamofascism is unconventional war, without boundaries, uniforms, defined battlefields and lines means it's going to be messy. Constitutional protections do not (or should not, by any sensible reading) apply to a US citizen who declares war on the US, and demonstrates by deed and word his earnest efforts toward our destruction. I've seen some actual cases where the UCMJ was actually applied to prosecute American troops in a foreign combat zone. Take LTC Allen West, for example. Busted out of a brilliant and heroic military career for "Aggravated Assault" IN A COMBAT ZONE!! Totally out of context, as is any hand-wringing about Due Process for whacking a globally recognized terrorist enemy, regardless of his/her citizenship.

It seems to me that we declared war on the parties that caused 911 to happen in our country.
Among the people identified as causing the disaster were people who were identified as terrorists.
Some of these people were pictured on decks of cards so that troops could more easily identify and neutralize them. They are all combatants in a war that they pledge to destroy the United States. As such they have been stripped of any civil rights that former citizens have in due process cases. Any former citizen of our country who feels that he must harm.us should be treated in a manner consistent with capture or annihilation.
What is the problem? War is the problem!

Death, by whatever means is justified for several very important reasons. We are at war against an organization of Fundamentalist Islamic Jihadist, which is not, I repeat not, a religion but an aggressive ideology focused purely on the destruction of the West and what our ethics dictate. We are a democracy offering freedom of personal choice and decision, and this is absolutely contrary to Sharia Law, the total submission to the Qur’an, and to their ultimate design for global domination.

Anwar al-Awlaki and Samir Khan, although born in the United States, forfeited their nationality and the laws that offered them protection under the Constitution of the United States for citizens of this Nation. Both men chose of their own free will to abandon their allegiances to this Nation, and thus by their actions in aiding and abetting the enemy of the United States, are no longer citizens or American Nationals but considered as enemy combatants.

Anwar al-Awlaki’s words motivated American men and women to accomplish violent atrocities. Such was the case of the Fort Hood assassin Nidal Malik Hasan, who allegedly exchanged 10 to 20 emails with Anwar al-Awlaki prior to his deadly rampage in which 13 Wounded Warriors and Fort Hood staff mercilessly died. He also had communicated with at least two members of the 9/11 terrorists while an Imam in Alexandria, Virginia, under full knowledge of United States intelligence operatives.

Were their deaths not justified? Dr. Joseph Paul Goebbels, Propaganda Minister for the Nazi Party, not considered a combatant by any manner, yet his cruel and vitreous words were sufficient to compel millions of innocent people to their deaths. His death was surely justified as evidenced by all verdicts rendered at the Nierenberg Trials. Can we assert any less for those who script these same hateful and provocative words against Americans, as in the cases of Anwar al-Awlaki and Samir Khan?

Constitutional Rights are restricted to Americans who live under the statues that protect as well as prosecute us. This is Liberty, blind folded with equal scales with equal justice for all. If one chooses to leave this Nation, which provides protection under the law, one must be willing to suffer the consequences of its punishment outside the protection of the law. These men were no longer Americans, they were enemy combatants, detected by a drone, and destroyed as any al-Qaeda of Taliban enemy of the United States would have been. These men no longer possessed any rights within the United States aside from immediate arrest, transfer to Guantanamo Bay awaiting trial, and a life sentence for the duration of their natural lives at…Fort Leavenworth with United States Marine Corps Guards.

You gotta love that new term "Enemy Combatant." Not Soldier, not civilian. Is that the same as a WWII Partisan?

Absolutely justified! Otherwise every CSA soldier killed during the Civil War would have to be dug up and given a civilian trial!

That's incorrect because every CSA soldier was in declared war! By both Congresses - The Union Congress and the Confederate Congress.

The only thing I find awkward about all this is defending President Zero for doing something so uncharacteristically right. This dirtback was an overt enemy of Western Civilization. The fact that Islamofascism is unconventional war, without boundaries, uniforms, defined battlefields and lines means it's going to be messy. Constitutional protections do not (or should not, by any sensible reading) apply to a US citizen who declares war on the US, and demonstrates by deed and word his earnest efforts toward our destruction. I've seen some actual cases where the UCMJ was actually applied to prosecute American troops in a foreign combat zone. Take LTC Allen West, for example. Busted out of a brilliant and heroic military career for "Aggravated Assault" IN A COMBAT ZONE!! Totally out of context, as is any hand-wringing about Due Process for whacking a globally recognized terrorist enemy, regardless of his/her citizenship.

The man was plotting againts the United States and was a trator so YES it was the right thing to do.

You ever spoken out against the President? Not just this one. Next think about that...

It is clearly evident the man made a choice and he must live with that choice. Anwar al-Awlaki chose to surrender his citizenship as a United States citizen by carrying out and directing vile acts against the United States of America. These acts are Acts of War and thereby Anwar al-Awlaki and anyone with him are legit targets of war. To call it any thing else does not not follow international law. In accordance with decisions made by our SCOTUS he is an enemy combatant and must be treated as such. We are right, they are wrong, PERIOD. Have a great day!

Not sorry to see him gone but if we allow the government (whoever that is) execute people without trial, then anyone of us could be next. If they wanted to get him they should have gone into Yemen and captured him and returned him here for trial for treason. This is the beginning of the end of our way of life if we let this continue.


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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.