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October 04, 2011

Comments

Gary, I think there is a bit of confusion going because who, exactly, is or is not al Qaeda is not always entirely clear. Is another group which decides to style itself "Al Qaeda in the ______" part of al Qaeda just because it says so? How much interaction/command and control is required to be "a part" of the organization?

But beyond that, I think there is some justification for targeting individuals or groups who are loosely linked to a group with which we are at war.** Consider the American Revolution, for example. There was a Continental Army, under George Washington, which clearly was at war with the British. Then there were loosely affiliated groups, some of them just local guys hanging out in the swamps in South Carolina and coming out occasionally to attack a British position. No real command and control; not even much in the way of coordination. But Francis Marion was definitely part of the same war, no?

So the question becomes, how do we manage, with some kind of consistency, to draw a line around who is a legitimate military target and who is not? It isn't just a matter of whether someone committed treason. Someone could equally well have taken up arms (even in the non-combatant support sense of the term) and so become a legitimate military target.

Being a legitimate military target does not (as I understand it anyway) involve court decisions. Those are clearly required for domestic cases -- the military is not generally involved, and police actions are a viable option. But overseas, it is another story. Anybody know of a precedent for dealing specifically with citizens in arms overseas against the nation?


** Arguments about the need for a Declaration of War are a separate discussion. For the purposes of this one, we assume that we are at war.

Once again the internet serves up more free ice cream of outstanding quality. Thanks very much, Gary.

I'm curious how these arguments jibe with Roosevelt's "shoot on sight" order of September 1941. In response to several incidents between U-boats and American vessels, Roosevelt announced that:

"From now on, if German or Italian vessels of war enter the waters, the protection of which is necessary for American defense, they do so at their own peril. . . . The sole responsibility rests upon Germany. There will be no shooting unless Germany continues to seek it"

In other words, the mere presence of a German or Italian submarine within the declared zone would be considered a hostile act, and the vessel would be subject to attack and sinking. These were vessels of nations with whom we were not at war, mind you. Moreover, they were potentially vessels that had not actually fired on U.S. ships, vessels which may have had U.S. citizens on board (a number of German military personnel had dual citizenship).

This would seem to be a harder case than al-Awlaki, so if the President can order the sinking of a foreign naval vessel in such circumstances, it's not clear that he doesn't have the power in the case of al-Awlaki.

wj:

[...] Anybody know of a precedent for dealing specifically with citizens in arms overseas against the nation?
To some degree. Here's one:
[...] The arraignment for the USS Cole bombing suspect has been set for later this month in a military commission courtroom at the U.S. Navy Base in Guantanamo Bay, Cuba.

Abd al-Rahim al-Nashiri is accused of killing 17 Navy sailors, injuring dozens more and crippling the warship in the 2000 bombing in the Aden, Yemen, harbor.

The preliminary hearing will be October 26. The U.S. is seeking the death penalty against al-Nashiri, and no date has been set for the trial, which will take place at Guantanamo with a judge and jury of U.S. military officers.

I'm not fond of this, but it's better than assassination. One improvement over the past:
[...] The hearing is expected to be beamed on closed circuit television to journalists in an auditorium at a military base near Washington, as the Pentagon tries to bring new public acceptance and transparency to the military commission. It's also expected -- but still not announced -- that families of USS Cole victims and survivors will be allowed to view the proceedings from a separate location.
How about some other recent terrorists? March 26th, 2010:
The Department of Justice has just sent a letter to the Senate Judiciary Committee answering early questions about how many terrorists have been convicted or plead guilty in civilian courts. Between those convicted of terrorism-related crimes (150) and individuals with ties to international terrorism convicted of other crimes (like obstruction or perjury–the total here is 240), 390 people have been sent to prison using our civilian courts.
More details in the letter.

The Non-Detention Act of 1971, repealing Title II, the "Emergency Detention Act" of the notorious McCarran Internal Security Act of 1950 is relevant.

[...] The Non-Detention Act of 1971 was passed to repeal portions of McCarran Internal Security Act of 1950, [1], specifically Title II, the "Emergency Detention Act". It had allowed for detention of suspected subversives without the normal Constitutional checks required for imprisonment. The Non-Detention Act requires specific Congressional authorization for such detention. Passed as Public Law 92-128, 85 Stat. 347 (1971), it was codified at 18 U.S.C. § 4001(a).
§ 4001. Limitation on detention
(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.
There's meat for everyone to argue about in this Congressional Research Service report of March 31, 2005.

In the end, we come down to the fact that the Supreme Court hasn't really ruled on the contemporary situation -- Padilla came closest, but was simply thrown back to the lower courts, and the issue hasn't been revisited by SCOTUS. Neither has Congress passed any relevant laws. (If they did, they couldn't, of course, be bills of attainder or ex post facto.)

I'd like to remind folks of what a bill of attainder is:

A bill of attainder (also known as an act of attainder or writ of attainder) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial. [...] The United States Constitution forbids legislative bills of attainder under Article I, Section 9. It was considered an excess or abuse by the British monarchy and Parliament. No bills of attainder have been passed since 1798 in the UK. Attainder as such was also a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.[11] The provision forbidding state law bills of attainder, Article I, Section 10, reflects the importance that the framers attached to this issue, since the unamended constitution imposes very few restrictions on state governments' power.

Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial or executive functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was partially reinforced by the Fifth Amendment to the Constitution, except in the case of executive orders. The text of the Constitution, Article I, Section 9; Clause 3 is "No Bill of Attainder or ex post facto Law shall be passed". The constitution of every State also expressly forbids bills of attainder.

wj:
[...] So the question becomes, how do we manage, with some kind of consistency, to draw a line around who is a legitimate military target and who is not?
One test clearly stated is that the threat must be imminent.

Wish we could have an honestly non-partisan discussion about drone attacks, targeted lists, and well as a number of things. Rather we seem to accept "due process" as action done by those we like. Doesn't exactly inspire confidence.

I would love to see a conference where the ideas of (1) who can be targeted (2) how (3) by what due process, were debated and codified into law. Unfortunately the chance of that seems zero.

Sadly, the accepted view by my nieces and nephews is that promoted by TV show 24 or movies. And it isn't good.

Scott de B., I think many actions of Roosevelt stank as far as constitutionality was concerned (and the Supreme Court did not smell of roses either). The undeclared war in the Atlantic before Hitler's official declaration of war is imo one of these. US neutrality was a sham.
[Disclosure: of course, being German, I am a bit biased here ;-)]

wj,
Thus it follows that if the British would have had drone technology, it would have been morally justified for them to take out wedding parties in Greenville?

As to precedent, Ex Parte Quirin, 317 U.S. 1 (1942) is worth reading. One of the soldiers in the group (Haupt) was allegedly a citizen, but the court didn't need to reach that question because it determined that he was nevertheless an enemy belligerent. The opinion contains a lot of interesting history. Haupt's father was convicted of treason.

Perhaps al-Awlaki would have been killed in the attempt, but it's unclear why an attempt wasn't made.

The easiest job in the world is someone else's. An-a-Al was mobile, not holed up in a compound for years. Boots on the ground risks casualties and there is no guarantee that, when the troops arrive, the target will remain. Plus, you have to have a place from which to stage the attack. There are a number of practicalities that overcome theoretical objections.

The idea that our troops or law enforcement personnel (still, waiting BTW, for someone to tell me which police department has the legs and expertise to effect an arrest in Yemen) have to demand an arrest and put themselves at risk--or go through the motions of doing so--to satisfy circumstances that the Constitution was never intended to reach, see e.g. Barbary Pirates, illustrates why the doctrinaire left never has had and never will have credibility on national security issues.

Finally, Gary, simply because the Constitution defines treason (for reasons that make sense in the historical context) and the conditions on which a person can be convicted does not equate to an exclusive means by which treason can be addressed. Take, as one example, a German-American in arms against the US in WWII--must we capture and try that person or could we have called in an air strike as we would with German troops?

Treason is subset of actively waging war against one's country. The charge of treason in connection with waging war doesn't operate as a protection for the belligerent, it is simply a by-product of his/her belligerency. You are treating the constitutional definition of treason as if it is a protection for US citizens in armed conflict with their country. Which gets me back to the Civil War. In your world, Lincoln could not have called up an army to put down the rebellion without first indicting each and every rebel and first requesting their surrender. Surprise attacks, ambushes, artillery attacks all would have deprived Confederate troops of their due process.

[i]illustrates why the doctrinaire left never has had and never will have credibility on national security issues.[/i]

iirc the doctrinaire left won WWII and killed Osama bin Laden, while the doctrinaire right brought us Vietnam and the Iraq invasion, but thanks for playing.

And this constant equating of "13 states worth of armed, rebelling soldiers" with ONE FRIGGING GUY IN YEMEN OF ALL PLACES would be hilarious if it weren' pathetic. If that dude scared you so much, buy some Depends.

Finally, Gary, simply because the Constitution defines treason (for reasons that make sense in the historical context) and the conditions on which a person can be convicted does not equate to an exclusive means by which treason can be addressed.

So much for strict constructionalism.

Thanks all for the education.

@McT: still, waiting BTW, for someone to tell me which police department has the legs and expertise to effect an arrest in Yemen

Would not the usual procedure for an arrest outside US jurisdiction be to call upon the host government to arrext and extradict the suspect? I'm reasonably sure that most nations would be extremely unhappy (accusations of kidnapping come to mind; I even seem to recall hearing some when it comes to individuals being picked up for "extraordinary rendition" a few years back) to have US personnel, whether law enforcement, or CIA, arresting someone in their country. So I agree with you, there basically isn't a legal way to send in the police.

Which does leave rather a problem when either:
a) we don't have an extradition treaty (that's not just us -- which is why ex-dictators are careful when they pick places to retire), or
b) the host government declines to extradict, or
c) there is effectively no host government (think not just Somalia, but some of the "tribal areas" in Pakistan).

I suppose that the could simply consider refusal to extradict an act of war by the host country. But that does seem a bit extreme....

I'm not getting the logic here. Let's assume that it was entirely impractical to apprehend al Awlaki, which, if it were practical, would be something we would consider worth doing, given his nefarious activities. Does that, in and of itself, mean that we have no choice but to drop a bomb on his head? Simply being unable to apprehend someone worth apprehending does not automatically lead to a justification for killing that person.

Someone is worth killing or not. If he is, you might still go the route of apprehending that person alive, for whatever reasons, if doing so is a reasonable option. This does not make the converse true - that if someone is worth apprehending, that you can justify killing him simply because apprehension is not a reasonable option. You have to demonstrate that he is worth killing, which, as far as I can tell, was not done in al Awlaki's case.

He wasn't Osama bin Laden. Not even close. I'm still glad al Awlaki's dead, and maybe that makes me a bad or, at least, imperfect (along with lots of other things) person. But that doesn't mean I like the means by which that end was achieved.

Just (for the moment) to address one of your concerns:

"This couldn't be more important. The official U.S. position is that we are not at war with "al-Qaida 'adherents' and 'affiliates' simply because of that status.

"So that claim flies out the window."

I'm not sure what claim your talking about. The U.S. position is that

"1 . Affiliates is not a legal term of art . Although it includes Associated Forces, it additionally includes groups and individuals against whom the United States is not authorized to use force based on the authorities granted by the
[AUMF]. The use of Affiliates in this strategy
is intended to reflect a broader category of entities against whom the United States must bring various elements of national power, as appropriate and consistent with the law, to counter the threat they pose . Associated Forces is a legal
term of art that refers to cobelligerents of al-Qa‘ida or the Taliban against whom the President is authorized to use force (including the authority to detain) based on the [AUMF].

In other words, the term "cobelligerents of al-Qaida" would be a correct term for people against whom the Government claims the legal authority to use military force. Again, I'm not sure which claim you're throwing out the window except for the possibility that people (including me) sometimes use an incorrect term.

I suppose that the could simply consider refusal to extradict an act of war by the host country. But that does seem a bit extreme....

Countries refuse extradition from time to time, depending on treaty language or lack of a treaty. Invasion is not an option, in virtually every scenario I can imagine.

But, that was not my point. GF and most others here insist that dealing with AQ et al is a law enforcement issue. Ok, if that's the case: which law enforcement agency is set up to deal with An-a-Al? Or AQ?

Simply being unable to apprehend someone worth apprehending does not automatically lead to a justification for killing that person.

Who is saying this? Meaning no disrespect, the majority view here makes far too many of its points by absurd characterizations of those who disagree. No one here contends that the president has the right to kill anyone he chooses at his whim. It is not crystal clear from the text of the Constitution that a US citizen can leave the country, align himself with a foreign enemy and participate in planning attacks against the US AND be entitled to the full range of constitutional protections. Really, there are two sides to this.

As to precedent, Ex Parte Quirin, 317 U.S. 1 (1942) is worth reading.

I'm not sure to what degree Quirin is relevant to Al Awlaki's case, but it is worth reading, and reading about.

What always strikes me about Quirin is how freaking sad it is.

In a nutshell, 8 Nazi spies land in the US with the intent of sabotaging critical infrastructure and industry. Almost immediately, two of them decide to pull the plug and defect to the US.

One guy, Dasch, contacts the FBI in NYC, who don't believe him. He goes to the FBI in DC and convinces them he's not nuts by dumping the cash he's carrying to fund the operation - something over $80K - on the agent's desk.

Dasch and the other defector, Burger, give thorough statements to the FBI. The FBI rolls up the rest within two weeks. No act of sabotage was ever actually committed.

Plan A was to try all 8 in civilian court. Dasch and Burger had made a deal that they would plead guilty and then later receive a pardon in return for turning themselves and the others in.

Hoover and FDR wanted to try them in military court, so they could control the proceedings, prevent the details of the defection from getting out, and maintain the popular narrative that the 8 had been captured through FBI / US intelligence brilliance.

Also, since no actual act of sabotage had been even attempted, the available civil penalties were pretty thin, a couple of years in jail. FDR, Hoover, and others felt that that was an unacceptably small price for the saboteurs to pay.

At some point, a picture of Dasch got in the paper. He freaked and wanted to tell all in open court, so that he could establish in the public record that he had defected. That tipped the balance to FDR and Hoover's side, and it went to military court.

The JAG defenders objected, and against serious resistance took a habeas request to the SCOTUS. Hence, the Quirin decision, upholding the decision to go to the military courts.

All 8 were sentenced to death. Dasch's sentence was commuted to 30 years, Burger's to life, in return for their help in rolling up the operation. The other 6 were electrocuted.

Later, in '49 I think, Truman further commuted Dasch and Burger's sentences to deportation to the US zone in Germany. They were apparently not welcomed home with open arms.

Dasch continued to try to emigrate to the US throughout the rest of his life. His requests were always denied.

Oh yeah, cite. Seriously, somebody needs to get the movie option on this.

Whenever I think of Quirin, I think of John Dasch, trying his damnedest to defect to the US, and basically getting screwed over by FDR's understandable desire to maintain the narrative of US intelligence prowess, and Hoover's less-forgivable desire to enhance the reputation of the FBI.

Long story short, out of this weird farrago of cockups, lucky pennies, good and bad intentions, riding roughshod over normal due process in the interest of national security, and a generous splash of the arrogance of FDR and the vanity of J Edgar, comes the modern doctrine of the enemy combatant.

And thus, Guantanamo and the rest of the crap show.

Things like this are why I'm grateful I never went into law. It sounds all weighty and noble, but a hell of a lot of it comes down to frame of mind and circumstance.

The root of the Al Awlaki mess is the doctrine that you can be at war with individual people and/or groups of individual people. The AUMF was a not-unreasonable attempt at trying to find some kind of middle way - an authorization for the use of military force that was short of a declaration of war - but even that has been strained to and probably beyond the breaking point.

What we've come to is this: if the President decides that somebody is worth killing, he can dispatch military force anywhere around the world to kill that person, as long as you don't have to squint too hard to make a connection between that person and 9/11, Al Qaeda, or both.

And since Al Qaeda in particular has become something of an international franchise, that is a pretty damned wide net.

It's a remarkable prerogative. I hope it doesn't bite us in the @ss, but it's more or less too late to worry about that now.

Pandora's box is open.

Hartmut:

'I think many actions of Roosevelt stank as far as constitutionality was concerned (and the Supreme Court did not smell of roses either).'

Do you think this about Roosevelt's domestic programs and his dealings with the Supreme Court or do your thoughts only apply to your bias?

The root of the Al Awlaki mess is the doctrine that you can be at war with individual people and/or groups of individual people.

The problem here is that we define the 'war on terror' as "war" in the conventional sense. It is not war but neither is it an ordinary criminal enterprise. It does have some of the indicia of a state of hostilities. The closest analogue I can come up with is piracy on the high seas, but it's easier to spot a pirate than it is to spot a terrorist. Whatever it is, it doesn't lend itself to a detailed, statutory regime.

It is not crystal clear from the text of the Constitution that a US citizen can leave the country, align himself with a foreign enemy and participate in planning attacks against the US AND be entitled to the full range of constitutional protections.

Who is saying this? Meaning no disrespect, the minority view here makes far too many of its points by absurd characterizations of those who disagree.

Or not.

What I'd say is that I'm not calling for the "full range" of constitutional protections - that is, I don't think the constitution gives every conceivable legal classification of human beings the same rights. I'm not saying that al Awlaki gets all the protections that, for instance, I do. I'd say he gets what the constitution says someone like him gets, to the extent that it's clear on that. I'm saying that you can't just kill the guy because you can't catch him.

If you're not saying that you can kill him for that reason, what is the reason you're saying you can kill him? I still haven't seen anything but a tenuous, after-the-fact-of-9/11 affiliation with AQ, anti-American propaganda and recruitment for a terrorist organization - none of which is an immediate threat or battlefield activity.

So, short of the "full range" of constitutional protections, what protections does he get? Or, to put it another way, what constraints does the constitution (or other law) put on the executive branch in a case like his?

And what constraints should the law put on the executive banch in a case like his? What sort of 'effing country do people want to live in? How much power and discretion are you willing put in the hands of one branch of government? (...even if that power and discretion were granted by another branch of government - you don't have to find fault with the process to find fault with the result.)

McT, I was trying to agree with you - invasion is a silly approach.

Obviously I need to get better at irony. Not to mention English.

It is not war but neither is it an ordinary criminal enterprise.

Why not?

So, short of the "full range" of constitutional protections, what protections does he get? Or, to put it another way, what constraints does the constitution (or other law) put on the executive branch in a case like his?

There is no constitution-lite outside of certain recognized classes: members of the armed forces, students, deportation hearings, customs inspections and perhaps some others. Even in these instances, some constitutional rights remain in place.

There isn't any court guidance on overseas terrorists and their leadership and we won't get it because the SCt doesn't do advisory opinions.

Furthermore, each case will turn on its facts and it is difficult, more like impossible, to write laws in advance of contingencies that have yet to arise.

For me, the beginning point of any analysis is location: is the actor within or without US jurisdiction? If without, then is the actor subject to arrest and deportation by a cooperating sovereign? If not, then the pre-apprehension constitutional bar drops to virtually nothing. If yes, then arrest, extradite and bind over to the appropriate authorities.

If the actor is beyond any reasonable prospect of arrest and deportation, his/her threat level must be assessed. Either this is an exclusive function of the executive or it's an executive function subject to judicial oversight. Judicial oversight has a lot of appeal, but not in exigent circumstances, but what is worse, it is essentially a process by which someone is declared outside the law, i.e. an outlaw, which is constitutionally forbidden.

I am aware that if threat assessment is exclusively an executive function, there is the potential for unbridled mayhem at presidential whim. However, that is true in the conduct of a war as well. So far, we haven't seen unbridled executive mayhem, but perhaps there has been a bid of bridled bad stuff.

Further, because this is in the nature of war, not a domestic crime, it is--for better or for worse--within the president's purview as commander in chief, in which he is bound by the law of war and the congressional authorization to prosecute military action, but not much else.

Operationally, whether to kill or capture an active, overseas terrorist or terrorist leader is purely a discretionary call based on difficulty of apprehension, anticipated friendly casualties, collateral damage, etc.

In short--the constitution pretty much stops when the subject is beyond the jurisdiction of the US or a cooperating sovereign. In its place, and in this context, the default is the law of war plus such congressional limitations as there may be.

All of the above assumes the context of congress recognizing a state of hostilities under its war making authority and granting the president the power to act within the limits set by congress.

Absent congressional authorization, the president could not do what he did. A complaint that the threat did not justify the attack is a complaint about result, not the process. If the complaint is that that Obama lacked legal authority, that is a matter for congress.

Finally, although the constitution stops when an actor is beyond a reasonable opportunity for arrest and deportation and is at large; however, if the actor is arrested, it kicks back in to some as yet undefined extent. Cruel and unusual punishment, use of confessions obtained under duress and right to counsel ought to be minimally available. I could spend forever trying to sort out what would and would not come next.

Why not?

Ok, here goes:

Ordinary criminal enterprise=drug dealing, bank robbery, rape, murder for hire, ad nauseum.

Not an Ordinary Criminal Enterprise=large, international organization of religiously-motivated individuals declares a state of war against the US, is protected by what passes for another country, and launches a series of large casualty attacks against the US. Organization morphs into a movement whose size is indefinite as is its much larger group of supporters and adherents and adherents.


This is a quick summation, not an in depth effort to fully define AQ and its outlier organizations.

GoodOleBoy, while I agree with the intentions of FDR in many cases, esp. in the field of domestic policy, I think that his methods were often questionable both legally and morally. Not actually uncommon for US administrations (who think themselves above the law most of the time independent of ideological persuasion) but I think his approach was more systematic than that of both his predecessors and successors. I believe the US (as a remotely civilized state) would have imploded without that but there is still a difference between doing the right thing and doing it in full accordance with the law.
Cynic that I am I am inclined to believe that the US is on the straight path to repeat the experiment but this time without FDR and we will see the results within our lifetime (and they will not be pretty).
I have repeatedly stated in the past that I think that the US constitution is only still around because it is put aside in times of crisis (real or perceived) and brought back afterwards pretending it was in place at all times.

There are a lot of excellent legal points being made in the post and in the comments here. If only we had some sort of system -- a "legal system" if you will -- where difficult or controversial matters of Constitutional Law could be decided. If all else failed we could have a court (let's call it a Supreme Court) issue the final word.

I wonder what living in such a country would be like. I used to think I knew.

Really, this is all we're asking. Judicial oversight of the legislative branch as outlined in the Constitution. And apparently it's every bit as radical an idea now as it was 200 years ago.

^^Er, executive branch.

McTx - Thanks. But is that a legal distinction, or more of a, "well, it seems different" kind of thing?

I mean, in a war the killing of American soldiers by the enemy is not a crime, and, indeed, trying enemy soldiers for such would, IIRC, generally violate the Geneva Conventions, (as opposed to treating them as POWs). And yet here we have the U.S. stating that, on the one hand, this is war and thus we can kill you in your sleep with impunity subject to no sanctions, and yet, if you fight back (or go on the offensive), you're a terrorist criminal such that, if we (deign) to capture you, we can put you on trial and/or hold you indefinitely without trial or the benefit of POW status(and/or torture you, depending on which party holds the White House at a given moment).

I mean, both the Bush and Obama administrations seem to want to have it both ways, in a kind of Schrodinger's Cat version of hostilities, where we're both at war and not at war at the same time, depending on whatever position is most advantageous at the moment. Maybe 1984 is a better reference for that.

For me, the beginning point of any analysis is location: is the actor within or without US jurisdiction? If without, then is the actor subject to arrest and deportation by a cooperating sovereign? If not, then the pre-apprehension constitutional bar drops to virtually nothing.

Why does location have anything to do with the rights of a U.S. citizen whatsoever (outside of perhaps the case of re-entering the country)?

"If you're not saying that you can kill him for that reason, what is the reason you're saying you can kill him? I still haven't seen anything but a tenuous, after-the-fact-of-9/11 affiliation with AQ, anti-American propaganda and recruitment for a terrorist organization - none of which is an immediate threat or battlefield activity."

I consider that good enough. I consider Joseph Goebbels or Tokyo Rose or Lord Haw Haw to be all legitimate targets in time of war.

I consider that good enough. I consider Joseph Goebbels or Tokyo Rose or Lord Haw Haw to be all legitimate targets in time of war.

Fair enough. Then if AQ takes out the White House, that's legitimate?

I see a lot of unseriously un-self-awareness on this thread....I mean, even to the point where a commenter I normally admire says he is "glad", "glad" he says, that somebody is dead. I rejoice at nobody's death.

Then if AQ takes out the White House, that's legitimate?

Clearly not. Even attacks on unquestionably military targets are illegitimate. Because they're U.S. military targets, you see?

OTOH, don't go to a wedding in certain parts of Af/Pak, if you know what I mean.

Fair enough. Then if AQ takes out the White House, that's legitimate?

That's what we're trying to prevent, no? Since they already tried it (or the Capitol Building, at least), that's exactly why they're doing this. IOW, they started it, and don't seem to be done.

hairshirthedonist said he was "glad," but acknowledged that perhaps his gladness wasn't a "perfect" reaction. I'm surprised, bobbyp, that you would take him to task for admitting his genuine feelings.

hairshirthedonist said he was "glad," but acknowledged that perhaps his gladness wasn't a "perfect" reaction. I'm surprised, bobbyp, that you would take him to task for admitting his genuine feelings.

Yeah. If you feel morally superior, that's one thing, and you may very well be. But how I can be un-self-aware in this particular instance, which was the specific charge, given my acknowledgement that my reaction may be wrong, is beyond me.

IOW, they started it, and don't seem to be done.

Started what? And are you sure?

In your world, Lincoln could not have called up an army to put down the rebellion without first indicting each and every rebel and first requesting their surrender.
I've previously stated quite clearly that I believe no such thing.

It's fascinating that people would bring up "Tokyo Rose," since they would appear to be unaware that: there was no one such person, but at least a dozen women who broadcast, and that the one brought before American Justice was Iva Toguri D'Aquino.

Say, whatever happened to her? Oh, yes:

Toguri was detained for a year by the U.S. military before being released for lack of evidence. Department of Justice officials agreed that her broadcasts were "innocuous". But when Toguri tried to return to the US, a popular uproar ensued, prompting the Federal Bureau of Investigation to renew its investigation of Toguri's wartime activities. Her 1949 trial resulted in a conviction on one of eight counts of treason. In 1974, investigative journalists found that key witnesses claimed they were forced to lie during testimony. Toguri was pardoned by U.S. President Gerald Ford in 1977.
But, hey, better off if we'd killed her, and then said "oopsies!"

Meanwhile, I'm not going to respond to points claiming we're in WWII, the Civil War, the Cold War, or any other war. Sorry: we aren't.

But I do marvel that even during the heights of Cold War, when the U.S. faced the U.S.S.R., the Warsaw Pact, and China, and their allies, and their hundreds of divisions of troops, many fission and then fusion bombs, eventually MIRVed missiles, etc., etc., we still didn't find ourselves, despite the fear that created the national security state, granting the President questioned legal authority to secretly draw up a list of citizens to be killed.

(Yes, there were plenty of covert operations in which people died, but the President didn't proclaim he was just following law allowed that.)

And now, according to arguments, apparently the threat of someone waving a flag of al Qaeda is just like the Axis powers of WWII, or the rebellion and attempted secession of half the states, or, well, why don't we just say al Qaeda is as scary as the aliens in INDEPENDENCE DAY?

It's as apt a comparison of the threat level.

Sense of proportionality, anyone?

Gary: But I do marvel that even during the heights of Cold War, when the U.S. faced the U.S.S.R., the Warsaw Pact, and China, and their allies, and their hundreds of divisions of troops, many fission and then fusion bombs, eventually MIRVed missiles, etc., etc., we still didn't find ourselves, despite the fear that created the national security state, granting the President [un]questioned legal authority to secretly draw up a list of citizens to be killed.

We were made of sterner stuff then Gary. Plus we beat the Axis, Confederacy, USSR/Warsaw Pact, and the aliens in Independence Day (jury still out on China, I guess). We did lose in Vietnam though, which is why we're all speaking Vietnamese today, and the prospect of another language change if we lose to al Qaeda is just too much for most people, I guess. Hence the self-destructiveness.

But, that was not my point. GF and most others here insist that dealing with AQ et al is a law enforcement issue.
I've never said that, either.

It would perhaps be helpful, when characterizing someone else's arguments, to quote the words you're responding to.

At no time have I excluded or said I oppose all military actions against "al Qaeda," nor anything remotely like that.

Ugh--to try to reply. It's my take on what the law as it applies to this situation, and in a very general sense, is, not a definitive legal statement.

I don't think "we" are saying that it's ok for the US to kill AQ types but that it's not ok for them to kill us, nor are "we" saying that, contrary to normal rules of war, we have the right to prosecute AQ members.

As I tried to make clear, this is not a war in any traditional sense. There is no opposing sovereign, no opposing uniformed army, etc. AQ began attacking the US in 1992. They claim provocation, most of "us" disagree, but that's beside the point. We have a right to defend ourselves. Over time, particularly after 9-11, "we" and AQ have morphed into a form of quasi-war. The "enemy" is amorphous, trans-national and elusive in any number of ways. Giving names and labels to people and phenomena doesn't really to much to establish concrete lines of where hostilities begin and end, who is "hostile" and what is to be done with a captured "hostile".

Reverting to the traditional war analysis, you are right: captured soldiers are held prisoner, they are not put on trial and they are repatriated after the end of hostilities if not before.

In the present circumstance, there is no "end of hostilities" in sight and holding prisoners indefinitely, particularly when their status is unclear, is wrong in every case where the prisoner was not an active hostile. At a minimum, some kind of reliable determination needs to be made whether a prisoner is actually part of the AQ et al movement in a meaningful way.

As for location and why it matters: it is one thing for us to hold ourselves to constitutional standards whenever reasonably feasible, but just as a search warrant wasn't required to board a pirate ship nor was our navy required to be fired upon first, when geography puts someone beyond the law's ability to enforce itself, that is no reason to let that person go free IF the issue is as extreme as that of planning and recruiting for future terror attacks.

But, if you really need a constitutional foundation for taking out An-a-Al, here it is: AUMF is essentially a declaration of extra-territorial martial law pursuant to the US Constitution and therefore, traditional peacetime constitutional mandates are suspended for the duration.

Started what? And are you sure?

Seriously? What did the US ever do to OBL or his compatriots? Yes, "they" started it. And, No, it's not over.

AUMF is essentially a declaration of extra-territorial martial law pursuant to the US Constitution and therefore, traditional peacetime constitutional mandates are suspended for the duration.

Holy crap!!

And, for *what* duration?!? As long as somebody with a Quran wants to kill an American?

Please, please, please read the AUMF. It's actually fairly specific, and fairly limited.

It *is not* a declaration of martial law everywhere in the world except the US, until whenevers.

McKinney - thanks for explaining. I think, in the end, we would have been better served by invading Afghanistan with about 10x the force we did, clearing out as much as we could, and then leaving in, say, summer of 2002 (maybe early 2003), and being done with the military part (which, if you recall, was actually preceded by a formal demand by the United States that the Taliban turn over OBL and al Qaeda leaders, upon pain of invasion). Then moving on with an aggressive, law enforcement approach elsewhere in the world (and with which we had/would have had a great deal of cooperation, until the whole Iraq thing). To the extent we couldn't "get" someone for whatever reason, well, that's the price we pay for the rule of law.

But instead we seem to have taken an "everything looks like a nail" approach, despite non-hammer alternatives available, which has only accelerated under Obama (would he have ordered the capture of KSM, for example?).

But, if you really need a constitutional foundation for taking out An-a-Al

Um, yes. And the "declaration of extra-territorial martial law" is an interesting way to think about it. I guess the extra-territorial application of constitutional restrictions on executive (and other branch) actions is a topic for another day, I would only note that since the executive exists solely as a creature of the constitution, its actions should be subject to constitutional restrictions no matter the location (I understand that the case law seems to be against me on this point).

Seriously? What did the US ever do to OBL or his compatriots? Yes, "they" started it. And, No, it's not over.

I guess my question for sapient was, they started what? And are you sure they started it? I agree it's not over.

Please, please, please read the AUMF. It's actually fairly specific, and fairly limited.

It *is not* a declaration of martial law everywhere in the world except the US, until whenevers.

Actually, it's subject to interpretation. It isn't necessary to use the term 'martial law' to impose it. The constitution allows for martial law which suspends the constitution. AUMF authorizes military force against individuals who may plan future attacks against the US or its citizens. Ipso facto, that is a suspension of constitutional rights.

Or, if congress hasn't done so by AUMF, it certainly could. It could simply declare a state of martial law as to citizens and non-citizens alike in defined geographical areas and everything that is being complained about here would be entirely constitutional.

As for duration, good question? It think it's the Forever War. And not in a good way.

we would have been better served by invading Afghanistan with about 10x the force we did, clearing out as much as we could, and then leaving in, say, summer of 2002

We are in complete agreement here, so you may want to rethink. Smiley face.

Seemingly off topic, I read but did not comment on Dr. S' piece on courage because I was on vacation and having too much fun.

But the whole courage thing is implicated by your statement. Courage comes in all sizes and shapes, but unguided by judgment and intelligence and moral fiber, it can just as easily produce criminal mayhem as it can the most sublime sacrifice. IOW, it's impact is totally random.

One of the big, big divides between me and my former party is their incredibly awful take on Afghanistan. Bush and Cheney (the guy who claims to really get this stuff) got a good initial result in Afghanistan and pretty much stopped, turning to Iraq. For 6 years or more, the Republican administration did diddly in Afghanistan. Yet, when Obama takes over and spends 9 freaking months sizing up a situation the Repubs forgot about for 6 years, who was all over him?

Courage? The worst kind of cowardice.

The Constitution allows habeas to be suspended, by Congress, in cases of rebellion or invasion.

If I'm not mistaken, the geographic scope of that suspension is the US. And basically only if the civilian government has gone bottom up.

The US has also imposed martial law in places it has occupied militarily.

I'm not sure how Yemen fits into that picture.

And I'm also not sure how the rest of the world is going to like the idea of a US President having authority under martial law that extends to every corner of the globe.

Seriously McK, and with all due respect, this is a seriously wacky idea.

Is al-Qaida in 2011 the same "organization" that pulled off 9/11?

Certainly its membership has turned over a bit, but then so has the roster of Congress and the executive branch. To the extent that the AUMF authorized "the President" to conduct something like war against "al-Qaida", does personnel turnover on either side matter?

I'm not saying I like the whole "AUMF" concept at all, mind you. But if people on both sides of the question are going to cite it, then maybe we should figure out what some of the words in it mean. We can disagree about what they mean, but at least we could pinpoint what we're disagreeing about.

--TP

Here it is. It's dead short, you can read it in a couple of minutes.

Here is the gist of it:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It's a pretty broad mandate, but there is nothing in there about martial law, or suspending the Constitution.

Seriously McK, and with all due respect, this is a seriously wacky idea.

Wacky is an entirely subjective assessment. I think it's wacky that we talk about trial in civilian courts for non citizens captured overseas who have attacked or are planning to attack the US. Not everyone agrees with me, which I find wacky as well.

There is no fundamental law, only what people and nations make. Many here would construe the constitution to limit the US world wide in every circumstance other than declared war. You can't find that in the text of the constitution, but you can argue it should be so construed. I think it's wacky.

It is just as rational--I would say more--to argue that we can make up our own rules outside our borders. We do this often by signing treaties with other countries. In places that are failed or failing states, we get to make up our own rules. AUMF is an example of that.

Now, you can argue and, upon further review, I would agree, that AUMF speaks only to people aligned in some form or fashion with AQ prior to 9-11 and authorizes killing them, inferentially, to prevent future acts of terrorism. Oddly, AUMF doesn't seem to reach post 9-11 AQ recruits, which An-a-Al seems to be.

There is no fundamental law, only what people and nations make.

That may well be.

But, once having made the law, there is only a finite set of things it could sensibly mean. That is why we write them down, and take care with the language we use when we do so.

I would also suggest that "in failed states, we get to make up our own rules" is a few giant steps too far.

Last but not least, AUMF has nothing whatsoever to do with states being failed, or not failed. It is an authorization, short of a declaration of war, for the President to employ military force against people involved in 9/11.

Full stop. And what I mean by "full stop" is that the language contained in the law permits that, precisely that, and nothing but that.

We can conjure wiggle room in Al Awlaki's case on the basis of his association with Al Qaeda, because Al Qaeda is an organization that was responsible for 9/11. But IMO the operative words here are "conjure" and "wiggle room", because other than an association with some of the actors, I am not aware of Al Awlaki being involved operationally with the 9/11 attacks.

But there seriously has to be some limit on the scope of what the President can and cannot do. Or, for that matter, on what anyone, in any branch of government, can do.

The President is not a sovereign.

Oddly, AUMF doesn't seem to reach post 9-11 AQ recruits, which An-a-Al seems to be.
Yay for a point of agreement.

Actually, you've said a number of things I do agree with, McK, which I haven't acknowledged, enough that it's a list, which is why I haven't, which isn't very fair of me.

OTOH, there are points where we wildly disagree, such as that analogies to WWII, the Civil War, etc., are appropriate.

I've made my arguments in my post, which while I completely understand the tl;dr factor, nonetheless includes many points that arguments in comments have ignored. I don't really care to repeat myself redirecting attention each time, though.

But since sapient relinked to the same White House National Strategy for CT that I linked to, I shall requote:

[...] Affiliates is not a legal term of art. Although it includes Associated Forces, it additionally includes groups and individuals against whom the United States is not authorized to use force based on the authorities granted by the Authorization for the Use of Military Force, Pub . L . 107-40, 115 Stat . 224 (2001). The use of Affiliates in this strategy is intended to reflect a broader category of entities against whom the United States must bring various elements of national power, as appropriate and consistent with the law, to counter the threat they pose. Associated Forces is a legal term of art that refers to cobelligerents of al-Qa‘ida or the Taliban against whom the President is authorized to use force (including the authority to detain) based on the Authorization for the Use of Military Force, Pub . L . 107-40, 115 Stat . 224
(2001) .
One can't generalize about "al Qaeda" and as you now acknowledge, the AUMF does have limits, and it doesn't apply to people who after the fact orally declare sympathies for an ideology.

Which is all I know that al-Awlaki (it's not that difficult a name to remember, or cut and paste, by the way) and Khan seem to be clearly guilty of.

I'm perfectly willing to believe al-Awlaki was guilty of some serious operational involvement in a terrorist activity directed at killing U.S. citizens, but I'm not willing to simply take a government's spokesperson's word about it.

Because, you know, the U.S. government has an extensive history of lying a lot.

Particularly about wars and killings.

Last but not least, AUMF has nothing whatsoever to do with states being failed, or not failed. It is an authorization, short of a declaration of war, for the President to employ military force against people involved in 9/11.

Agreed, except that it's not really "short of." It is a declaration of war, but because it's not against a nation-state, but rather an organization, it is a bit novel. (Novel for the United States, at least, which came into being after the birth of nation states. Remember, war pre-dated nation-states by many millenia).

But there seriously has to be some limit on the scope of what the President can and cannot do. Or, for that matter, on what anyone, in any branch of government, can do.

Theoretically, there is. Again, there are three branches of government. Congress enacted the AUMF, and can amend it. The courts have the opportunity to review cases arising under it.

The Executive was handed a job: to protect the country. He was handed a tool: the AUMF. What do people expect him to do? He wants to use the AUMF in such a way as to protect the country. If Congress wants to limit his authority, where are they? (Where is Scott Brown on this, russell - have you asked?) If the courts want to second-guess his decisions, using the Constitution as a guide, where are they?

Other than Ugh, who seems to believe that the people who blew up the World Trade Center were just airing a legitimate grievance (please do elaborate!) by targeting a massive number of civilians, most people here (I hope?) believe that what happened that day was a bad thing, maybe even a crime (?), and maybe even an act of war. The al-Qaeda group is an organization whose adherents are doing a lot of nauseating things throughout the world. The Somalia link I provided earlier is an example. I don't agree with their premise, and I don't mind a bit that we're fighting them. If this is a war, I'm for the side of the United States, and not just from blind patriotism. I may have a few quibbles with this President (a lot of quibbles with the last), but basically, he's done his homework with al-Awlaki. Who (again) was "wanted dead or alive" in Yemen.

One can't generalize about "al Qaeda" and as you now acknowledge, the AUMF does have limits, and it doesn't apply to people who after the fact orally declare sympathies for an ideology..

Maybe not, but it certainly applies to people who join an ongoing organization. During a war, the enemy can recruit more people. Same organization; fresh troops. This is another difference between criminal law (prosecuting specific people for past acts) and war (targeting people who are organized to attack the country).


@ugh Why does location have anything to do with the rights of a U.S. citizen whatsoever (outside of perhaps the case of re-entering the country)?

Well actually, rights do not generally accrue to individuals as US citizens. It would be more accurate to say that they generally accrue to individuals who are located within the jurisdiction of the United States. Thus, anybody, citizen or not, who is arrested in the US has a right to legal counsel. (Have I got that right, McTex?)

Once the government is engaged outside its territory, a whole different set of rules (mostly based on treaties which we have ratified) comes into play.** I can see some grounds for confusion, given that a lot of those treaties establish rules which are closely based on American legal philosophy. But the overlap is far from complete.

** There are also some US laws regarding how US citizens are treated when abroad. But those are laws or regulations, not Constitutional rights.

"If the courts want to second-guess his decisions, using the Constitution as a guide, where are they?"

I'll quote Gary Farber:

Hamdan v. Rumsfeld, Hamdi, MUNAF et al. v. GEREN, SECRETARY OF THE ARMY, et al, Boumediene v. Bush, Rasul v. Bush, Rumsfeld v. Padilla... shall I keep going?

sapient, for the third time: what legal basis do you have for believing that the president can order the execution of a u.s. citizen without due process in the absence of imminent danger? The cases Gary cited don't support your position. They undermine it. Can you name some cases which do support your position? Your touching devotion to the AUMF does not help you, because the constitutional limits of the AUMF are not defined within the AUMF. The AUMF is flexible but not infinitely so. You said

"The Executive was handed a job: to protect the country. He was handed a tool: the AUMF. What do people expect him to do?"

The AUMF does not authorize him to do "whatever it takes." That would be unlimited authority.

If you think it DOES grant him unlimited authority, tell us why.

I don't want to be pouring gas on the fire, and proferring these links isn't meant as a complete rebuttal, but this post from the Long War Journal details some of the evidence of Awlaki moving to an operational role. Precisely what the AUMF authorizes is an important question, but I think the more important question (at least to me) is did the individual case of Awlaki cross some line. Given that authorizing his assassination took place back in April, which I am thinking it is related to his links to the ink cartridge plot and the Hasan shootings, and I think much of the information must be tied up in those investigations. The Guardian has lots of interesting stuff about Awlaki and everything else, this article 'Awlaki in his own words', is just one sample. Also, the Lawfare blog has some interesting stuff and this is a headlines and commentary post with lots of links, but there are a lot of other posts there that may be of interest, though they lean towards the notion that this was justifiable, which may anger some here.

Gary's post brings up the point that it is impossible to revoke US citizenship has me fill out my total of 4 links with this one, to a 1998 WSJ article that talks about people trying to renounce citizenship and other interesting problems, a subject that is near and dear to me right now.

That guardian link was mistaken, here is the one for Awlaki in his own words

If you think it DOES grant him unlimited authority, tell us why.

I don't think it does. I think it grants him authority to use

"all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

He has authority to use "necessary and appropriate force." And he has authority to determine what nations, organizations, or persons "planned authorized, committed, or aided the terrorist attacks that occurred on September 11."

I don't see any case (do you?) where his authority to use force or to identify the targets of such force are circumscribed. The cases that you cite discuss what are done with people once they're taken into custody.

I imagine if Obama stopped acting in good faith, and began targeting people who had nothing to do with al Qaeda, or using nuclear weapons on Pakistan, there might be some pushback. But that's not what's happening, so all of these ridiculous hypotheticals are not going to be coming up (at least not in Obama's term). As lj's Guardan link points out, there is plenty of reason to believe, even from unclassified material, that al Awlaki was a legitimate target (including the fact that he said he was working for al Qaeda).

If you believe that this action was illegal, perhaps you should encourage the ACLU to bring another lawsuit. Now that he's dead, his father may have standing.

I don't see any case (do you?) where his authority to use force or to identify the targets of such force are circumscribed.

It behooves the President to have his actions and decisions pass the smell test. For more reasons than I can find the time to enumerate.

Having assassinated Al Awlaki, it would be appropriate for the President or his spokespeople to explain by what authority the assassination was carried out, and how Al Awlaki fit within the scope of that authority.

"Because we said so" and "It's a secret" are not good answers. Because people in positions of power don't always tell the truth.

If we're going to continue pursuing anyone with any connection to any organization that has attempted or planned to attempt to attack Americans here or abroad with military force, the authority to do so needs to established more clearly than the AUMF, because the AUMF has specific and clear limits.

Seriously, where is the bright line here?

Can the President call in close air support to decimate the next meeting of the MI Militia, because Timothy McVeigh hung out with some of them? Why not? Because it's inside the US? What if some members go on vacation in Costa Rica, can he kill them there?

9/11 was a horrendous calamity. I don't know if the AUMF was necessary or not, but it wasn't insane. But it has limits.

The Executive was handed a job: to protect the country.

As an aside - since 9/11 - perhaps before, but certainly since - the idea that the President's job description includes "protecting the country" has become common.

It is not the President's job to protect the country. It is the President's job to faithfully execute the laws of the United States.

Responsibility for protecting the country belongs to all of us. The President's role in that function is commander in chief, which is to say, the operational boss.

An important role, but not one that overrides his primary responsibility.

American Presidents are not sovereigns, emperors, warrior chieftains, or any other form of big daddy or secular savior. They are most definitely not supermen.

They're chief executives, period. And that for 8 years, max.

It's a limited job, by definition, and for good reason.

I'm surprised, bobbyp, that you would take him to task for admitting his genuine feelings.

I chided him (gently I thought) for the feeling, not the admitting.

But how I can be un-self-aware in this particular instance, which was the specific charge, given my acknowledgement that my reaction may be wrong, is beyond me.

It was not you I was referring to HS. I may not have been clear. Gary did a much better job of it in his post @ 10-5; 4:12PM. That was the point I was trying to make. Interesting stuff about Tokyo Rose. Thanks, Gary.

russell, he is executing the laws. But this is a circular discussion. You don't think so. I do. It needs to be taken to a judge.

sapient: Other than Ugh, who seems to believe that the people who blew up the World Trade Center were just airing a legitimate grievance (please do elaborate!) by targeting a massive number of civilians, most people here (I hope?) believe that what happened that day was a bad thing, maybe even a crime (?), and maybe even an act of war.

Objecting to U.S. support of oppressive dictatorships across, basically, the entire Middle East for the past 60+ years is not a legitimate grievance? But yes, 9/11 was a crime, though not an act of war, which has basically been my point all along and our treatment of it as the latter has been disastrous, to put it mildly.

sapient: If you believe that this action was illegal, perhaps you should encourage the ACLU to bring another lawsuit. Now that he's dead, his father may have standing.

The modern standing doctrine has been basically created out of whole cloth by the Court's right wingers. But this is a great point, and a good lesson for parents everywhere, you can't prevent the gov't from killing your child even if the gov't has declared its intent to do so, but once it's done so, then you can sue and perhaps get a ruling that it was illegal. So, take heart.

wj: Well actually, rights do not generally accrue to individuals as US citizens. It would be more accurate to say that they generally accrue to individuals who are located within the jurisdiction of the United States. Thus, anybody, citizen or not, who is arrested in the US has a right to legal counsel.

You are correct insofar as rights under the Constitution accrue to both citizens and non-citizens alike, with citizens generally having more protections regardless of location. But the idea that the Constitution doesn't apply to protect the rights of U.S. citizens abroad vis a vis the U.S. gov't (as opposed to the laws/rights of whatever jurisdiction they happen to be in) is just flat out wrong.

Oh look, an actual Star Chamber:

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials....The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process....
In an ironic turn, Obama, who ran for president denouncing predecessor George W. Bush's expansive use of executive power in his "war on terrorism," is being attacked in some quarters for using similar tactics. They include secret legal justifications and undisclosed intelligence assessments....
Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.

So we don't even need the approval of the President, just some "un-elected bureaucrats."

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.

The buck stops...over there.

Officials confirmed that a second American, Samir Khan, was killed in the drone attack that killed Awlaki. Khan had served as editor of Inspire, a glossy English-language magazine used by AQAP as a propaganda and recruitment vehicle.
But rather than being specifically targeted by drone operators, Khan was in the wrong place at the wrong time, officials said. Ruppersberger appeared to confirm that, saying Khan's death was "collateral," meaning he was not an intentional target of the drone strike.

Convenient.

The Obama administration has not made public an accounting of the classified evidence that Awlaki was operationally involved in planning terrorist attacks.
But officials acknowledged that some of the intelligence purporting to show Awlaki's hands-on role in plotting attacks was patchy.

I think "patchy" is a perfectly adequate substitute for "beyond a reasonable doubt."

Awlaki was also implicated in a case in which a British Airways employee was imprisoned for plotting to blow up a U.S.-bound plane. E-mails retrieved by authorities from the employee's computer showed what an investigator described as " operational contact" between Britain and Yemen.
Authorities believe the contacts were mainly between the U.K.-based suspect and his brother. But there was a strong suspicion Awlaki was at the brother's side when the messages were dispatched.

Oh, strong suspicion? I take everything back then.

Feh.

I am not aware of Al Awlaki being involved operationally with the 9/11 attacks.

doesn't (didn't) have to be.

among other things, the AUMF talks about "organizations" responsible for 9/11 and gives the president the authority to do what it takes "to prevent future attacks".

al-Awlaki joined an al-Q organization (via the Yemeni franchise) and was supporting (by recruiting new members and serving as a motivational speaker) the general goals of al-Q. his actions were intended to produce or at least facilitate future attacks.

i think the AUMF sucks. i think Obama's acting on it in this way sucks. but it seems pretty obvious to me that killing al-Q members in order to prevent future attacks is exactly what the AUMF says the president has the authority to do.

the problem is the AUMF. one can't give such broad authority and not expect it to run into uncomfortable places. Congress fncked up, a decade ago, not Obama, not Bush.

@Ugh But the idea that the Constitution doesn't apply to protect the rights of U.S. citizens abroad vis a vis the U.S. gov't (as opposed to the laws/rights of whatever jurisdiction they happen to be in) is just flat out wrong.

Please educate me a little. What is the source (Constitutional or otherwise) for the thesis that there are actions abroad which the United States may lawfully take with regard to non-citizens, but not with regard to citizens? I do understand that there are some things which may not lawfully be done to anybody (e.g. torture). But I am ignorant on where the distinction is laid out.

Thanks.

wj - I guess I misunderstood your point. As far as distinctions between citizens and non-citizens abroad, there used to be one under FISA, but I'm not sure it's there any more.

further to my 10:00am on the al-Awlaki, er, "thing," Marcy Wheeler makes a good point: If the Legal Case for Killing Awlaki Is So Sound, Then Why Maintain Presidential Plausible Deniability?

Indeed.

Such lovely people, with such legitimate grievances! Please. I don't think that the United States is losing its soul by being at war with these people.

There's a lot of evil in this world sapient, is the U.S. to be at war with all of it?

In the specific case, I see that according to (unnamed) U.S. officials the Shabab "appears" to be "strengthening" its "ties" to al Qaeda's affiliate in Yemen. Good enough for gov't work, I guess, send in the drones!

Well, Ugh, it certainly illuminates what you said was al Qaeda's "legitimate grievance" against the U.S. - support for Middle Eastern dictatorships. Perhaps we got in the way of their fun: bombing students and preventing starving people from getting food aid.

...a kill or capture list by a secretive panel of senior government officials...

Will the real Death Panel please stand up.

Thank heavens the United States would never do anything like that. God Bless America!

P.S. Do you want me to just post pictures from Iraq and Afghanistan, or am I allowed to go all the way back to Hiroshima and Dresden?

sapient - is it really that hard to separate the grievance from the acts done in response to it?

And I'm certainly not arguing that the horrific Shabab action in Somalia is in response to the original grievance, just that it seems like their connection to the AUMF language is tenuous.

I don't think that the United States is losing its soul by being at war with these people.

Well, given that our soul is that of a militarist and conquering people content with an overweening sense of misguided self-righteousness, I guess you're right.

conquering?

Phil, really? I did not know that we bombed students in our own country, or prevented famine victims from obtaining food aid. One learns so much at ObWi.

Westward, ho!

conquering?

Hi paleface.

Right. It's been awhile, though, since my great-great grandparents were conquered. The ones from Europe too.

I did not know that we bombed students in our own country

We rely on debt peonage instead. Think outside the box.

Westward, ho!

You go far enough thataway it turns into east....where the original (non conquering..cough, cough) explorers hoped to wind up. Thus do we manifestly fulfill destiny :)

am I allowed to go all the way back to Hiroshima and Dresden?

I'll take Doctrinaire Leftist Actions for $600, Alex.

Sorry. No point. It just seemed like a little too much cancellation in the zingers to me.

You go far enough thataway it turns into east....where the original (non conquering..cough, cough) explorers hoped to wind up. Thus do we manifestly fulfill destiny :)

For that matter, Genghis Khan. Full circle indeed!

Sorry. No point. It just seemed like a little too much cancellation in the zingers to me.

Oh, just sit back and enjoy the intra-lefty squabble. :-)

Delightful further detail from Reuters.

Star Chamber, anyone?

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

Why spoil the beauty of the thing with legality?

[...] Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.

If only the Czar knew!

[...] When the name of a foreign, rather than American, militant is added to targeting lists, the decision is made within the intelligence community and normally does not require approval by high-level NSC officials.

Eh. They're just foreigners.

[...] But officials acknowledged that some of the intelligence purporting to show Awlaki's hands-on role in plotting attacks was patchy.

For instance, one plot in which authorities have said Awlaki was involved Nigerian-born Umar Farouk Abdulmutallab, accused of trying to blow up a Detroit-bound U.S. airliner on Christmas Day 2009 with a bomb hidden in his underpants.

There is no doubt Abdulmutallab was an admirer or follower of Awlaki, since he admitted that to U.S. investigators. When he appeared in a Detroit courtroom earlier this week for the start of his trial on bomb-plot charges, he proclaimed, "Anwar is alive."

But at the time the White House was considering putting Awlaki on the U.S. target list, intelligence connecting Awlaki specifically to Abdulmutallab and his alleged bomb plot was partial. Officials said at the time the United States had voice intercepts involving a phone known to have been used by Awlaki and someone who they believed, but were not positive, was Abdulmutallab.

Awlaki was also implicated in a case in which a British Airways employee was imprisoned for plotting to blow up a U.S.-bound plane. E-mails retrieved by authorities from the employee's computer showed what an investigator described as " operational contact" between Britain and Yemen.

Authorities believe the contacts were mainly between the U.K.-based suspect and his brother. But there was a strong suspicion Awlaki was at the brother's side when the messages were dispatched. British media reported that in one message, the person on the Yemeni end supposedly said, "Our highest priority is the US ... With the people you have, is it possible to get a package or a person with a package on board a flight heading to the US?"

So, you know, maybe Awlaki was standing around.

Good enough!

I feel so safe knowing that the King's people can kill whomever they wish, with secret "evidence."

Don't you?

Oh, sorry, Ugh, for repeating the same link.

Sorry. No point.

Might be worthwhile for you to get this on a t-shirt, or even a tattoo, at some point in time.

But in the spirit of education,, if you nerd a detailed explanation of the difference between "noting that the US has committed atrocities" and "noting that the so-called 'doctrinaire left' has a better record on actually winning wars than its right-wing counterpart" I've surely got a PowerPoint around here someplace.

Phil, really? I did not know that we bombed students in our own country, or prevented famine victims from obtaining food aid. One learns so much at ObWi.

One could make a colorable argument here about Hurricane Katrina or the 1968 DNC or the bombing of the MOVE house or all kinds if things if one were so inclined, but I already know what your response would be (I.e., "Nuh-uh that's different lalalalalala I can't hear you"), so let's just pretend we already went through the exercise.

Oh, just sit back and enjoy the intra-lefty squabble. :-)

I was in fact just now craving some popcorn.

Meanwhile, Phil seems to have forgotten some key things about which administrations got us into Vietnam. Maybe a teeshirt is in order for him, too, to the effect that he's really only mostly in this for the zingers.

colorable argument here about Hurricane Katrina or the 1968 DNC or the bombing of the MOVE house

Colorable, but not persuasive considering the scale. Good try though!

What's happening in Somalia is entirely too much of an atrocity to play games on this blog with though, so I quit.

What's happening in Somalia is entirely too much of an atrocity to play games on this blog with though, so I quit.
Since this post has nothing to do with Somalia, it's entirely appropriate to not discuss Somalia in this thread.

1.) Slarti: But why do we never hear about the "doctrinaire right"?

2.) Sapient: "So I quit" Then I guess it's not that important.

Maybe a teeshirt is in order for him, too, to the effect that he's really only mostly in this for the zingers.

...says the guy whose most substantiative contributions to discussion on this blog consist of efforts to correct spelling in other people's comments.

Have you considered spending some time studying Phil's zingers so that maybe one day you can write well enough that people could have an actual conversation with you without being completely befuddled by what your efforts at communication?

Intra-lefty squabble is it? Let's see. Whole 20th century. Nation involved in 3 major wars -- those featuring troops committed in large number over extended periods of combat (WW I, WW II, Vietnam). All three cases, we waded in under administrations which were, for the time, liberal.

21st century (so far): 2 wars (Afghanistan and Iraq -- being two separate efforts with minimal coordination among those on the other side). Both initiated under G.W. Bush (so I suppose it doesn't matter whether you count them as 1 or 2 wars).

Conclusion: Bush was a liberal. QED

(Running for cover now from the predictable screams of outrage. ;-)

Turb, could we please not have comments that are pure personal attacks?

Tempting as it is, I know. Most of us have that urge in response to one or more people. I'm hardly innocent.

But please.

And, yes, both Slart and Phil make personal comments at times, too. It's not great when they do it, or I do it, either.

"Take some more tea," the March Hare said to Alice, very earnestly.

"I've had nothing yet," Alice replied in an offended tone, "so I can't take more."

"You mean you can't take less," said the Hatter: "it's very easy to take more than nothing."

"Nobody asked your opinion," said Alice.

"Who's making personal remarks now?" the Hatter asked triumphantly.

[sorry, I couldn't resist]

says the guy whose most substantiative contributions to discussion

An observation of this kind necessitates the donning of blinders so that the speaker fails to notice e.g. the pointing-out that entry into Vietnam required a great deal of cooperation from Democrats.

Of course, one could argue that said Democrats were not really "doctrinaire left", but that would practically require that such terms be self-defining along the lines of "those guys who don't screw up".

one day you can write well enough that people could have an actual conversation with you without being completely befuddled by what your efforts at communication

Sorry if you're befuddled, but lots of other commenters leave me wondering, too, on a frequent basis. I just don't try to make it their fault.

Just wanted to note in passing: as of yesterday, we're 10 years in Afghanistan.

About another year and a half to go before we make the 10 year mark in Iraq.

I have no particular comment to make about any of that pro or con. At this point all of that is kind of water under the bridge. I just thought it deserved mention.

Turb: Have you considered spending some time studying Phil's zingers so that maybe one day you can write well enough that people could have an actual conversation with you without being completely befuddled by what your efforts at communication?

I am pleased to see that manifestation of the cosmic principle which holds that any time someone posts on the internet snarking about someone else's spelling or grammar, his or her own spelling or grammar will contain an error. I am tempted to deliberately insert one in my own post, as a blood sacrifice to the gods of grammar snootiness, but instead I will defy them. Slurback4tr4t.

Sapient: I don't think it does. I think it grants him authority to use ...

Okay, that is cute, but if I ask you what 1+1 means, you don't answer me respectfully by saying 1+1. Do you think the solicitor general argued that the President can indefinitely detain Hamdi because ... then just reading back the language of the statute?

What are the due process protections that you think the President is NOT allowed to override, even with the AUMF? Are there any?

I will give you some examples of some which the SCOTUS have found:

must offer some kind of tribunal before a neutral decision-maker (this from Hamdi)

the tribunals they set up after hamdi were rejected as violating UCMJ and article 3 of the Geneva Conventions (this from Hamdan).

This to me is suggestive that the President DOES have limits on his or her power, even pursuant to the AUMF. Do you agree?

Now, why do you think the limits on Presidential power pursuant to AUMF will include the execution of american citizens who do not pose an imminent threat, and in the absence of:

Notice
Indictment
Discovery
Neutral Decision-Maker (which the court found NECESSARY for merely imprisoning someone; given that life is a greater liberty interest than personal freedom, I have inferred that similar protections will apply to execution)

If you quote the statute again, I may start quoting song lyrics.

There aren't any combat troops in Iraq. We will never be "out of there", of course. But in a way, the continuing nature of our involvement when we make war on "countries" argues for the narrower "al Qaeda" military focus that we have in, for example, Yemen.

Slarti sez: Meanwhile, Phil seems to have forgotten some key things about which administrations got us into Vietnam.

Mind reading, 15 yards and replay of down.

Which administrations got us into Vietnam is tangential to the Nixon administration's escalation of, conduct concerning and eventual loss of the war. Much as which administration got us into Afghanistan is tangential (at best!!!) to what the Obama administration is doing there. I know you know this, but you value pithiness and obscurity over clarity and relevance. So be it.

The "Domino Theory" was a product of the Eisenhower administration. JFTR. HTH.

sapient sez:Colorable, but not persuasive considering the scale. Good try though!

Why, it's almost as if I predicted your response in advance. Perhaps I can teach Slarti proper mindreading skills.

Tin soldiers and Nixon's coming...

CBS News:

Last year [2009], I asked Defense Secretary Robert Gates to explain the difference between combat troops and "non-combat" troops. The "non-combat" troops, I noted, will still be capable of engaging the enemy. Gates insisted there would be a significant difference between the activities of combat and non-combat troops.


"All of the combat units will be out of Iraq by the end of August [2010] and those that are left will have a combat capability," he said. "There will be, as the president said, targeted counterterrorism operations [sic]. There will be continued embeds with some of the Iraqi forces in a training capacity and so on."


He continued: "So there will be the capability, but the units will be gone, and, more importantly, the mission will have changed. And so the notion of being engaged in combat in the way we have been up until now will be completely different."


So while the troops will be "non-combat," they will still be engaged in "targeted counterterrorism operations" and working and fighting alongside Iraqi forces, according to Gates.


The military and administration's parsing of combat and non-combat troops strikes many as amounting to a distinction without a difference. In February of last year, Washington Post Pentagon reporter Thomas Ricks stated flatly on CBSNews.com's "Washington Unplugged" that "There is no such thing as non-combat troops."

Noted w/o comment, for those who don't feel perversely obligated to constantly (and, frankly, embarrassingly) parrot the bland, banal euphemisms of the perpetually expansive National Security State with earnest zeal.

(Oh, and welcome back, Gary.)

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