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June 25, 2010

Comments

First they came for the American person or citizen trying to carry out attacks against U.S. interests and I said nothing.

an unrestricted license for the administration to kill whomever they want anywhere in the world, even an American citizen, subject only to an internal deliberations process among their lawyers.

Erm, what deliberations, Adam? I know Harold Koh did a tapdance somewhere, but do you really think they're going to do that for each and every "terrorist" suspect? And how do we know if American Citizen X is a "member" of Scary Terrorism Organization Y? Is there a list we can check? And who decides of Organization Y is of the "Scary Terrorism" sort? And/or at WAR! with the United States?

I generally think the folks talking about how we have concentration camps already set up and ready to go somewhere in the Southwest are loons, but stuff like this brings us closer to the time when believing stuff like that won't be proof of lunacy.

Just remember, no matter what Obama does, Bush was worse. It's not particularly true, but it WILL make you feel better.

Just remember, no matter what Obama does, Bush was worse. It's not particularly true, but it WILL make you feel better.

Well sure, but I think we're still clearly in "Bush was worse" territory. Not a hard standard to satisfy, obviuosly.

"Well sure, but I think we're still clearly in "Bush was worse" territory. Not a hard standard to satisfy, obviuosly."

Less clear everyday.

Less clear everyday.

Agreed. See also Glenzilla.

Less clear everyday on civil liberties, without a doubt.

Well sure, but I think we're still clearly in "Bush was worse" territory. Not a hard standard to satisfy, obviuosly.

On this particular point, demonstrably not so. If there's any daylight there at all, I don't see it.

Well, if Brett or Marty get dragged off to a concentration camp who will they blame?

I warned you at the time. Give a president near unlimited power and his successor will build on it.

Still, very disappointing if not predictable.

The night of his inauguration, Obama was visited by an angel who showed him the nightmare world that would exist if civil liberties were strictly honored.

Or was Obama planning on perpetuating Bush policies even during the campaign?


This is obviously hugely distressing. But it is worth pointing out that the words of an official, even a very highly placed one, in an interview don't constitute duly-established -- and certainly not presumptively legal -- government policy. It is "policy" in the sense that whatever the government says is its policy is itself "policy" in that specific sense. But obviously, there are many government officials with overlapping areas of responsibility, especially in this area, and they can be wrong, and they can go out on limbs in public statements beyond where the policy actually stands. I'm nor saying Brennan has here - he's as close to power as it gets. But it is still worth continuing to confirm these stated policies with reporting about whether institutional procedures have been put in place to carry them out and the like. Beyond that, merely because a policy has been stated or even instituted does not make it legal. Our legal rights continue to exist in theory and can still be vindicated by courageous jurists even when a president is prepared to violate them.

As a completely separate issue, and by no means arguing it is an analogous situation, I do wonder about how we view the legal situation that confronted President Cheney in the mid-morning of 9/11/01. Had an interception of a Capitol-bound airliner carrying Americans been made by scrambled jets, what exactly would have been, if one could exist, the legal justification for the president acting to kill Americans to protect. Again, I don't claim this as an analogue for the current policies. But I am curious about the reasoning.

I have my usual complaint about the supposed specialness of US citizens here. If it's wrong to kill Americans without due process for "threatening US interests", it is equally wrong to kill non-citizens with the same rationale.

But of course I agree that this ridiculously lax standard is crazy dangerous. And it's funny how "US interests" always seems to mean "US commercial interests" or "US military interests", but never "US residents interest in spending a trillion dollars in a more sensible way". What, exactly, most ordinary people get out of the freedom for US corporations to operate around the globe is questionable, given the trade deficit.

Had an interception of a Capitol-bound airliner carrying Americans been made by scrambled jets, what exactly would have been, if one could exist, the legal justification for the president acting to kill Americans to protect.

Defense of others, which is a variation of self-defense. Judged by a standard of reasonableness in terms of feared outcome from threat vs. means chosen to address the threat.

In microcosmic terms, if I see you lunge at Brett with a large knife at his throat shouting "I'm going to kill you now" I can take you out with one of Brett's many firearms just as if I were in Brett's shoes myself. Self-defense, by extension.

Given the death toll that could result from a skyscraper attack, and the WTC in flames, it would not have been too difficult to defend such a measure had Cheney taken it.

I have my usual complaint about the supposed specialness of US citizens here. If it's wrong to kill Americans without due process for "threatening US interests", it is equally wrong to kill non-citizens with the same rationale.

I don't disagree.

What, exactly, most ordinary people get out of the freedom for US corporations to operate around the globe is questionable, given the trade deficit.

Imports. Duh.

But those people were not doing the lunging. They were merely riding along on the knife, having paid good money in hopes of reaching their destination, which was not Brett's neck.

True Mike, but the doctrine extends that far.

One is permitted to take actions that would result in the death of some in order to protect a larger group others from death, even if those killed are blameless.

Like pushing a shipwrecked swimmer off a lifeboat that they would likely swamp if let on.

Put another way, if a car full of people were careening at ridiculous speeds toward a toddler (or group of toddlers), and you were in a truck, you would be justified in ramming the car even if your actions could cause death to those inside the vehicle.

Is part of the point here that the passengers on the plane would die regardless if the highjackers completed their mission? I'm thinking of the careening car full of people heading toward just one toddler. Are we assuming the people in the car will likely die whether or not the truck rams them?

Does the law ultimately come down to a moral calculus relating to the sureness and extent of the harm then? That is my question. These would, after all, have been American citizens with no intent to harm others being killed by the American government above American territory. As protected a class of people as can exist under the U.S. constitution.

It is a moral calculus, impacted, certainly, by what HSH said.

Even if not hijacked, if a plane were to lose control but not power midflight (thinking Payne Stewart's plane), it would be possibly defensible under this doctrine to shoot it down if it started to head for a densely populated area when it ran out of fuel.

Even if everyone on board was still alive, or presumed alive (in the case of Payne Stewart's plane, the passengers' status was unknown).

Does the law come down to a moral calculus concerning the sureness and extent of the harm then? That is my question. These would have been American citizens without any intent to harm others being killed by the American government above American territory. As protected a class of citizens as can exist under the U.S. constitution. We are saying that they would be subject to being killed more than an American citizen residing abroad who had (allegedly) taken up arms against the U.S. though not on a recognized battlefield. It seems to me there has to be a doctrine to determine the difference there other than "self-defense" or an extension thereof, which is exactly what Brennan would use. It seems to me the doctrine has to be the imminence of the harm, especially if we say that avoiding the death of one American toddler would justify the potential killing of a truckload of Americans.

The comment didn't post at first for some reason.

These would have been American citizens without any intent to harm others being killed by the American government above American territory. As protected a class of citizens as can exist under the U.S. constitution. We are saying that they would be subject to being killed more than an American citizen residing abroad who had (allegedly) taken up arms against the U.S. though not on a recognized battlefield.

But you're leaving out the fact that the plane they're in is believed to be headed for a target, and that they will all die anyway if it is allowed to reach that target, in which case even more people will die. Downing the plane = net lives saved.

Yes, "imminence" is absolutely vital - even to just regular old self defense.

It can only be invoked if imminent. But in the case of a hijacked plane, that was part of a plot that already sent two into the Twin Towers (and Pentagon, depending on chronology), shooting down the next would be understandable, and the risk likely deemed imminent.

And understand, I am not asking whether there is a moral calculus to be done in these situations. I am asking whether it, or something else, or a combination thereof, governs the legality of the various governmental actions in question.

HSH, I'm allowing for that. Clearly, that affects - determines - the moral calculus. I'm asking how this interacts with the legality of the act.

I think Mike is correct in this, both morally and legally. It's not even that these Americans are working by themselves in the "attempt" stage of a crime. They're working with people with whom we are at war (according to Congressional authorization) or who have established patterns and stated the purpose of plotting crimes (or war) against the United States. These people also are not "anywhere in the world" but rather in places where law enforcement mechanisms do not exist to bring them to justice. I really think that we have better things to do than agonize over these people's constitutional rights when huge numbers of distinctions can be made between their circumstances and activities and anyone else's. I'll save my outrage for abused undocumented aliens in Arizone, etc., not people who hang out in failed states so that they can safely plot the murder of American civilians.

Sapient, I'm not arguing one or the other (completely as yet uncompleted) actions were right or wrong, legal or illegal. I am attempting to identify the salient legal distinctions between. One is certainly imminence of harm. Another might be that a potential harm of any kind is even in evidence. Obviously, the mere intention of committing a murder is not a capital offense, nor even does it in itself constitute a harm. You have to act on it. Further, actions that American citizens might take abroad in furtherance of terrorism against the U.S. are obviously covered by extensive U.S. law, which they can be punished under but only subject to due process and for which only a subset have the death penalty as a potential sentence.

I am just trying to understand what in theory could be the arguments for the actions that are being contemplated by way of comparative examples.

not people who hang out in failed states so that they can safely plot the murder of American civilians.

But that's just the thing, isn't it.

You don't have to be plotting any such thing. You could be fighting against a certain regime in Somalia that he US prefers, and presto bammo, your own government assassinates you.

Or you could not be fighthing at all, but rather providing medical services there - same death penalty without a trial. Or even a charge leveled.

They're working with people with whom we are at war (according to Congressional authorization) or who have established patterns and stated the purpose of plotting crimes (or war) against the United States.

But this is not so. We are not at war with Al-Shabaab, nor do they have any pattern or stated purpose along those lines.

Besides, you are assuming guilt based on executive branch say-so. Which can be a problem.

Just to add, my concern is also on the eventual and inevitable expansion of this power.

As I alluded to in this post, these curtailments and infringements tend to grow, not wane.

Just remember, no matter what Obama does, Bush was worse. It's not particularly true, but it WILL make you feel better.

If your tea-bagging Paultard friends had maybe opened their mouths about some of this stuff during the Bush years, instead of sitting back because it was only happening to those people, and besides, FREE MARKETS!!, maybe we wouldn't be where we are today.

Phil, please keep it civil.

trying to carry out attacks against U.S. interests

Assuming that the speaker did not intend to fully explicate, in a single phrase, the circumstances under which we would or would not kill a citizen overseas, I think we can safely assume that the subtext of the sentence is along these lines: if a US citizen abroad, operating from a location we cannot otherwise access to apprehend, is actively planning operations designed to kill other Americans or others allied with Americans, we reserve the right to send in a Predator or otherwise resort to lethal force."

What is wrong with that, assuming the predicate is shown to exist?

It's a different question when the citizen in question is exhorting others to take American lives. Personally, if it could be shown that people were listening to and acting on this person's exhortations, I'd be fine with lethal force. I am not fine with bombing a rally where everyone is holding "Death To America!" signs. The exhortation vs. planning line isn't as bright as I'd like it to be, but then again, a lot of this counter-terrorism stuff produces gray areas.

McTex,

My objections would be:

1. What is meant by "allied with Americans"? How broad is that? Would that justify the US sending missiles into Gaza if an American or two were there?

2. There are still standard of proof issues, and checks and balances. In order to get a wiretap, you need a FISA warrant. There should at least be a court that can review the file en camera to keep the executive from abusing this power.

3. Related to the above, slippery slopes.

Eric, to return to my initial point, it isn't clear that this "power" actually exists in any sense other than that the Executive contemplates and is literally capable of it. We have a very powerful military that is almost fully at the Executive's command. He can contemplate any number of actions, any number of which might be illegal if done, as this would be. This doesn't mean that our system has actually yielded him the "power" to do this in the Eighteenth century sense of the word. As a matter of simple capability, the president has the "power" to carry out things like this, and much worse. That doesn't mean he has been afforded by our system the Constitutional "power" to do so.

No doubt.

My objections would be:

1. What is meant by "allied with Americans"? How broad is that? Would that justify the US sending missiles into Gaza if an American or two were there?

It would depend, since your example is pretty vague, but if our overseas citizen was planning to bomb a hotel in Cairo or Gaza, regardless of who was staying there, I would be fine with lethal force. If you are saying that we could carpet bomb a neighborhood in Gaza where someone was planning a local operation because we were concerned that an American might get caught up in the fallout, no, that is no enough. Context, specificity and imminence drive the decision.

2. There are still standard of proof issues, and checks and balances. In order to get a wiretap, you need a FISA warrant. There should at least be a court that can review the file en camera to keep the executive from abusing this power.

No problem with a second set of eyes signing off on something like this.

3. Related to the above, slippery slopes.

I don't like slippery slopes either. Let's keep that in mind when we debate sweeping domestic legislation that runs thousands of pages is passed with limited debate. :-)

No doubt. Is that to me? Well, doesn't that seem like an important point? That, obviously, the executive can contemplate all manner of actions, but that doesn't make them legal, and that hence concern about his "powers" being creeping, while justified historically, is in this case jumping the gun a bit? It's not at all clear to me this would be broadly accepted if carried out.

To clarify, the point of Americans being there would be that they were the targets.

Mike,

That was to you, and it was a valid and important point.

There is a check on executive overreach in the SCOTUS. But some of these actions might not reach the SCOTUS because of how secretive they are. And there's no guarantee that the SCOTUS will come down on the right side of the law.

Would rather not have executives claiming this power. Even if unused, such declarations can be used by subsequent admins to establish precedent (possible bi-partisan precedent in the present example)

Your hypo is: Americans in Gaza are being targeted by other Americans in Gaza or elsewhere overseas?

If so, yes, the targeting Americans are subject to lethal force, assuming they are planning to kill other Americans and further assuming that the collateral damage and other context issues have been evaluated, balanced etc.

No doubt, natch.

Would rather not have executives claiming this power.

Suppose congress gave the president such power? Would that make it better?

It's a different question when the citizen in question is exhorting others to take American lives.

If an American person or citizen is in a Yemen or in a Pakistan or in Somalia or another place, and they are trying to carry out attacks against U.S. interests, they also will face the full brunt of a U.S. response.

Maybe it's just me, but I see a lot of daylight between "take American lives" and "attack American interests".

Suppose congress gave the president such power? Would that make it better?

It might make it less ambiguous legally, but I'm not sure "better" is a word I would use.

What Brennan appears to be saying is that the President can decide, absent any particular authorization from Congress or anybody else, and absent any kind of criminal conviction or even criminal charges being brought, to assassinate an American citizen if he thinks that person is involved, at even the planning stages, with an attack against an "American interest".

What does "American interest" encompass? Actual American citizens? Citizens of a friendly country? A foreign government we happen to be friendly with? An oil refinery or gas pipeline in another country?

Seriously, that should get your spider senses tingling.

And yes, I agree with Jacob that the standard articulated here is stupidly low for either citizens or non-citizens.

It's unclear from the citation if this only applies geographically outside the US or not, which raises additional interesting questions. But even assuming we're only talking offshore, the power Obama is assuming here is pretty freaking broad.

I think this is as deadly serious a policy as it seems to be. But I think there is at least a non-vanishing possibility that this is not a policy that the administration has any intention of implementing in reality. Whether a public official going before the press and signalling the willingness to take such actions amounts to a formal "claiming" of the power or not can be debated. (I would tend to want to wait until the claim is made by a U.S. attorney before a federal court, but i don't think the opposing view is clearly wrong.)

Call it wishful hoping - and again, i think it is less likely than more. But I think the possibility exists that what is being done here is merely an attempt to deter disaffected American citizens from engaging with terrorist organizations abroad by threat. The administration perhaps want to attempt to discourage Americans, and indeed terrorist cells, from thinking that they have a lower chance of being struck by a hellfire missile than other plotters of terrorism against the U.S. because they are American - and perhaps even more importantly to discourage the organizations or cells themselves that recruiting. This doesn't change he fact that, in any case, it likely is that all of these decreased likelihoods in fact are very real. But to me it is quite evident how it would present a rather clear tactical challenge to an American counterterrorism strategy that relies overwhelmingly on global pinpoint strikes against terrorist planning cells (a policy that is obviously open to deep and extensive questioning in its own right) to allow to go unchallenged the belief that having an American in your midst means you may well be safer from death from above than otherwise.

If this is a tactic of deterrence against certain actions of Americans abroad, that doesn't necessarily make it less terrifying. But it would mean that the consequences for presidential power concerns would be somewhat, though not entirely, mitigated.

Sorry: "....to discourage the organizations or cells themselves that recruiting..."

...from recruiting Americans into their operations for that primary purpose.

http://obsidianwings.blogs.com/obsidian_wings/2007/07/the-majority-of.html?cid=75137428#comment-6a00d834515c2369e200e008d3c8d68834>July 6, 2007; 'I've been saying for some time that I'd support impeaching Bush"

http://tpmcafe.talkingpointsmemo.com/2006/05/08/investigations/>May 9, 2006:
"Heck, investigate him up the wazoo. Nail his hide to the wall, if you can. I personally doubt your guys in Congress have the self control necessary to use hearings as anything more than an opportunity to give campaign speeches, but you never know..."

the belief that having an American in your midst means you may well be safer from death from above than otherwise.

That cat is long, long since out of the bag.

Meet Ahmed Hijazi, aka Kamal Derwish.

In both those reports, it is noted that authorities claimed to be unaware of the presence of U.S. citizens among those targeted.

The German parliament tried to pass a http://en.wikipedia.org/wiki/Luftsicherheitsgesetz>law for a 9/11 type situation, i.e. shooting down a passenger plane believed to be heading for a suicide attack. It was struck down by the German Supreme Court because it was not up to the state to kill some innocents in order to save others.

If so, yes, the targeting Americans are subject to lethal force, assuming they are planning to kill other Americans and further assuming that the collateral damage and other context issues have been evaluated, balanced etc.

Not planning to kill Americans. The discussion is "American interests." In the context of Somalia, that would be attacks on the Somali govt that we support.

In Gaza, that could mean attacks on Israeli troops.

Saguntum has always been our ally and we have to defend it against the aggressor.

That's awesome, Brett. Any 24/7 calls for that stuff coming from FOX News? Any suggestions from Limbaugh, Hannity and the rest that the president was "dangerously anti-American?" Any marches on Washington, DC with guns? Any death threats to members of Congress that supported those things?

No. Absolutely not. Because you got your tax cuts, and that's all you care about. So spare everyone the indignation now.

That's your problem, Phil: You've got me confused with an establishment Republican. The fact that I think Bush should have been impeached over some of the stuff he did just doesn't penetrate, because I think Clinton should have been impeached, too. And, in your world, apparently, you're not allowed to think both.

Fact is, I despise the GOP. I just despise it marginally less than the Democratic party.

McKT, you wouldn't support the conviction of an American on a misdemeanor charge without a right of confrontation, and notice and an opportunity to be heard. If we've learned anything from the GTMO experience, it is that these are even more important in the war on terror.

Take the case of Fouad al Rabia. The government wanted to prosecute him, and had testimony of an eyewitness that Rabia gave a suitcase full of cash to Osama bin Laden himself. Eight years on, he finally gets before a judge, and can show that the testimony of the eyewitness, and the confession that was coerced from him to corroborate the witness, were completely unreliable. And that the story was ridiculous, and could not be reconciled with the timeline.

No one at the military did this work -- it was a private lawyer, with access to Rabia. And a US District Judge. And although only a preponderance, at least the government had the burden.

What is being represented by the government has no meaningful safeguards at all. It's not like Rabia, it's the functional equivalent of that Baghdad helicopter tape on Youtube. But in even more ambiguous circumstances.

Fact is, I despise the GOP. I just despise it marginally less than the Democratic party.

From all appearances, you despise almost every group, and the only group you have expressed admiration for is the Michigan Militia.

I despise the majority of political organizations, because politics is a competition for coercive power over individuals, and I think coercive power over individuals is bad. Whereas the Michigan Militia, despite a lot of bad press, doesn't want such power.

For instance, take a look at the first http://www.michiganmilitia.com/bill1323.html>link on their home page that you linked to. You got some complaint with their 1st amendment position?

You got some complaint with their 1st amendment position?

To be honest, I find most of the public positions of the non-freaking-insane milita groups to be right on. Michigan Militia, Oath Keepers, etc. I like quite a lot of what they say.

My question is: who are they accountable to? Does the Michigan Militia recognize, for example, the authority of the Governor of Michigan?

Or do they reserve the right to pick and choose when and whether they will take direction from duly elected public officials?

If it's a matter of respecting only those directives that comply with the Constitution, whose reading of the Constitution wins the day?

What makes the folks in the Michigan Militia, or the Oath Keepers, or any of 100 or 1,000 other similar groups sure that their understanding of things is actually correct?

It's an important question when the card you're playing in the negotiation is a loaded gun.

For instance, take a look at the first link on their home page that you linked to. You got some complaint with their 1st amendment position?

Ahhh, the fallacy of composition. It's like having our own little Glenn Beck to keep us amused. I find it hard to take seriously anyone who feels like they have to, as a matter of course, resort to firearms to maintain their rights, regardless how much their take on the 1st amendment resembles mine. And at any rate,folks who think that making bows and atlatls answers the hypothetical "...if we ever need to actually rely on making something like this, we now have the ability" have had many viewings of Arnold in Predator with way too much beer.

And given your inability to understand why undocumented aliens (yes, I know you object to the term, but when businesses and other enterprises offer them work safe in the knowledge that it won't be their company or agribusiness that gets penalized, I think the term is perfectly appropriate) might actually pay income tax, I really think you don't have a firm grasp of the word 'coercive'.

"If it's a matter of respecting only those directives that comply with the Constitution, whose reading of the Constitution wins the day?"

An interesting question, a comprehensive answer to which would doubtless constitute a threadjack. But if you want my opinion, have a listen to Free Will, by Rush.

Neil Peart is big into Ayn Rand.

*crickets*

Man, that guy can play the drums....

I look forward to this new era of government by mixtape.

I'll likely be the pick for Secretary of Brass Monkey.

"bows and atlatls"

At a State Park, no less. I guess if the squirrels stay more than 20 feet away from the picnic table shelter, they'll be safe from spearing. The black helicopters might be in some trouble, however, what with the dense cover protecting the incoming fire.

Part of the group "deployed" to the gun range a little ways away, which I take to mean they ran barefoot on barely detectable deer trails, like the last of the Mohicans, through the forest, tucking and rolling as a diversionary tactic, and coming up fully set to spear the next statist they trip over who wandered into the woods to take a leak after consuming his 24-hour latte.

A couple of those guys look like they have "deployed" a little too often from the couch to the dinner table (still working on those dried rations from the Year 2000 Apocalypse that destroyed the grid, leaving themselves a retreat strategy back to the couch like, I don't know, General McChrystalPatton or any competent military commander would.

Not that I could spot any of the members in the photographs because they blended in so well with the natural background. They must have been wearing camouflage, if you'll pardon my French.

(end of Part one of this comment squeezing through the balky server)

Homemade camouflage, one hopes, made from natural fibers, bark, and wolverine sinew, not the new-looking, well-pressed duds you find at the Army/Navy Surplus Store.

You never see folks "deploying" to the gun range in surplus Navy whites for some reason, like a backwoods Jeremiah Pulver. Do these guys have a naval contingent? After all, while the army is approaching Washington D.C. from the West, it might make good strategic sense to have Naval support skulking along the shores of the Chesapeake to the East, or is to the South?

No word on whether military surplus gear sold at those joints was funded by statist taxes or statist government bonds before they were surplused, and let's not get into the relative stimulative effects of each.

Something tells me Reagan outsourced the manufacture of the gear to Guess Jeans or maybe a GAP subsidiary.

I kid, of course, having read this sentence in the link LJ provided: "If I am ever in a situation whereby I need to spear a large, square purple board while it is standing still I am reasonably confident that I can hit it from a vast distance of several feet."

I like a kidder in camouflage. It shows me they can spot themselves despite the camouflage and they don't blend in completely with the background bullsh*t.

The discussion is "American interests." In the context of Somalia, that would be attacks on the Somali govt that we support.

Eric, my initial reply noted that Brennan's statement was likely shorthand for a more discriminating policy. Obviously, if Obama or any president can have any American who acts against the president's subjective sense of "America's interests" killed, then we've arrived at the point of Stalinism. My point is that pre-empting an American overseas who is not subject to capture by killing him/her if that American is planning or executing a plan to kill others is, policy-wise, defensible.

I don't like that we are faced with this kind of decision, to respond to CCarp's concerns. The flip side is wait for people to get killed and then act.

McKinney: My point is that pre-empting an American overseas who is not subject to capture by killing him/her if that American is planning or executing a plan to kill others is, policy-wise, defensible.

But you are not responding to CCarp's concerns: you're ignoring them.

The chief concern anyone should have, on finding out their government plans to assassinate their citizens and claim it was justified because "that American is planning or executing a plan to kill others" is - exactly what standards of evidence are being used to decide which Americans should be assassinated by their government?

And given that in past years people have been kidnapped, tortured, imprisoned for years, on evidence that turned out to be a tissue of lies, why is that a concern you're just ignoring?

The flip side is wait for people to get killed and then act.

Well, duh. Except in Philip K. Dick stories, you do normally have to wait until there is evidence of a crime before you can act. Except, of course, when you're Joe McCarthy.

"Nobody ever looks like Joe McCarthy. That's how they get in the door in the first place."

McKT: The flip side is wait for people to get killed and then act.

I'm not trying to make a gotcha comment, but I do want to point this out: people are getting killed just about every day in Afghanistan & Pakistan. By us. Many - probably most - of them are innocent, certainly most of them pose no threat whatsoever to Americans in America.

And I have more concern about people being killed by us - by agents of the government I pay for in taxes - than for Americans getting killed by non-Americans, for the obvious reason that I am responsible to some degree for the former but not for the latter.

There is not a moral equivalence between killing and being killed. The fear that someone may someday kill me does not excuse my going on a pre-emptive killing spree.

Jes and JD--I have several comments on this thread. Taken together, I am in favor a second set of eyes, so to speak, validating that an assassination target is, in fact, planning or in the process of carrying out plans to kill others, and this only when other alternatives, such as apprehension, are not available. If the process is abused, a crime is committed. If not, it is a nation acting in its own defense. It would be great if present circumstances didn't pose threats of this nature that require a lethal response, but extending due process to the far corners of the earth and limiting ourselves accordingly isn't a satisfactory response either. Collateral damage is an unavoidable aspect of combat operations. Every reasonable effort should be made to reduce or eliminate collateral damage. The US does not knowingly target innocents as a part of any ongoing operations of which I am aware. Conflating collateral damage with a limited application of lethal force to an active combatant who happens to be a US citizen isn't even apples and oranges. The two are entirely distinct concepts.

Eric's complaint is that Brennan's words, limited to themselves, are standardless and so overly broad that virtually any act deemed a threat to US interests, a wholly undefined term, would warrant terminal action. If Brennan intended his words that broadly, I would agree. I think there is a clear subtext, particularly in this administration, and arguing as if one single sentence is the only and final word misconstrues the speaker's intent and creates a debate about something that doesn't exist. Put differently, is there any set of limitations and restrictions on the assassination of a US citizen abroad that Eric would find acceptable? I think from his responses that there is, but so far, we don't know what those limitations and restrictions are.

t would be great if present circumstances didn't pose threats of this nature that require a lethal response, but extending due process to the far corners of the earth and limiting ourselves accordingly isn't a satisfactory response either.

Why not?

What do you have against the idea that your country should be respected, rather than hated?

Why do you feel that it's unsatisfactory that the US should be perceived as a country that upholds law and justice?

Why do you think that the US is in the situation it's in, where terrorists regard this hateful, unjust, unlawful country as an appropriate target?

If you think it's only right for American agents to murder people in other countries, how can it not be right for people from those countries to enter the US with the intent of murdering Americans? Fair's fair. The US wants to commit murder in other countries; that means it's open season on Americans in the US.

The US does not knowingly target innocents as a part of any ongoing operations of which I am aware.

The US has claimed it "knew" that at least hundreds of people were not innocent and were therefore acceptable targets for American criminal actions - kidnapping, imprisonment, torture. "We just know" was Bush's answer and Cheney's answer, when challenged on why those people were targeted, and Obama has accepted that the way the US does business: no need for justice, no need for law, no need for evidence: "we just know they're not innocent".

So, McK: you okay with the next 9/11 action on US soil? No need for justice or law or standards of evidence - all that's required is for an authority to say "Kill them, they're not innocent".

More calmly, McKinney, according to your argument that the US is entitled to commit murder on foreign soil where "an assassination target is, in fact, planning or in the process of carrying out plans to kill others, and this only when other alternatives, such as apprehension, are not available" - I can see no reason why this should not be applied to Obama, Biden, and any others involved in the plan to commit assassinations.

These people are in fact planning to commit murder. There is no lawful way to prevent them from carrying out the murders: the US would not permit the extradition of its President (or even members of his administration) merely because its President had declared a definite plan to commit a crime: open confessions of even worse crimes did not result in any action by the US with regard to the arrest and trial of George W. Bush for the crimes to which he openly confessed.

So. By your own argument, McK, the countries which have good reason to fear attacks on their people because of Obama's plans, have every right to enter the US to assassinate Obama.

Do you agree? Does it bother you? Do you think Bush ought to be assassinated, since the US won't extradite him for trial?

McKT, I actually got confused and thought this was the latest Afghanistan thread, which makes my comment re: the ongoing death of innocents in Afghanistan not quite relevant to your comment, sorry.

It is relevant to my opinion of this program, which is that on the grand scale of things, blowing up Americans who maybe-probably-who knows? are trying to blow up other Americans is a whole lot less offensive than blowing up Afghanis and Pakistanis just for being (maybe-who knows?) associated with the Taliban.

Jes--no one can rephrase an argument better than you. Let's try to draw a distinction: Actor A, a US citizen residing in the far reaches of who-knows-where, wants to blow up a bomb in a hotel frequented by Americans and is planning to do so, and Actor B is the US president. Actor B, after determining that Actor A cannot be apprehended by conventional means and after reviewing sufficient evidence to establish that Actor A in fact is planning the hotel bombing, and further having the evidence reviewed and confirmed by a second entity, orders a lethal pre-emption of Actor A. Is this murder? Not in my eyes or the eyes of most Americans (nor, I suspect in the eyes of most people anywhere). If it is murder to kill Actor A, then by your logic, it is kidnapping and false imprisonment to arrest that person.

JD--if the President were to order assassinations on the strength of surmise or suspicion, you and I would be on the same page. My stipulation for such an act would be a much higher proof threshold. I can't articulate it, but it would approach the criminal standard of 'beyond a reasonable doubt.' Whether we are randomly bombing civilians as a matter of policy or so frequently and indiscriminately as to be tantamount to the same thing in Afghanistan or elsewhere on the basis of nothing more than suspicion is, to me, an unproven and highly incendiary allegation. If that were the case, and I doubt very seriously that it is, I would not only favor a radical change in policy, but prosecution of the senior officers overseeing same.

Is this murder?

Depends on who Actor B is. Morgan Freeman? Susan Sarandon? Kevin Kline? Eddie Murphy?

Put differently, is there any set of limitations and restrictions on the assassination of a US citizen abroad that Eric would find acceptable? I think from his responses that there is, but so far, we don't know what those limitations and restrictions are.

Yes, but it would have to be an extremely high threshold of evidence (with judicial review beforehand ala FISA), would have to involve an active war zone/area incapable of reaching with law enforcement, there should be an attempt to detain even then (an armed raid ala what was used to nab KSM), and the person would have to be involved in a pre-designated militant group (can't just be any old person working against any old US interests).

And even then, I'm open to counterarguments about why that would be a bad policy.

the person would have to be involved in a pre-designated militant group

So if a US citizen abroad renounced his membership in Al Qaeda and declared that he/she would henceforth only plot against American lives as an independent operator, by dint of this technicality, our avowed murderer would fall outside your criteria?

Actor A, a US citizen residing in the far reaches of who-knows-where, wants to blow up a bomb in a hotel frequented by Americans and is planning to do so, and Actor B is the US president.

Actor B is the US President, and claims he just knows - on evidence which he does not intend to subject to judicial oversight - that Actor A wants to blow up a bomb in a hotel frequented by Americans and is planning to do so.

Actor B wants to kill Actor A, because of what he just knows.

Actor B has made clear in public that he wants to kill Actor A, Actor C, Actor D, Actor E, and is planning to do so.

Actor B cannot be apprehended by conventional means: he's the US President.

After reviewing sufficient evidence to establish that Actor B in fact is planning the murder of Actors A, C, D, E..., and further having the evidence reviewed and confirmed by a second entity, the President of the country in which Actor B plans to commit these murders, orders a lethal pre-emption of Actor B. Is this murder?

Apparently not in your eyes.

Congratulations, McKinney: you have justified the lethal pre-emption (not murder, dear, no!) of the President of the United States.

Actor A, a US citizen residing in the far reaches of who-knows-where, wants to blow up a bomb in a hotel frequented by Americans and is planning to do so, and Actor B is the US president. Actor B, after determining that Actor A cannot be apprehended by conventional means and after reviewing sufficient evidence to establish that Actor A in fact is planning the hotel bombing, and further having the evidence reviewed and confirmed by a second entity, orders a lethal pre-emption of Actor A.

McKinney has a lot of unspoken assumptions here. Let's go through them to illustrate why this is a foolish scenario that isn't worth taking seriously - similar to the 'ticking bomb' in fact.

1) B knows for sure that A is planning to do this. Impressive intelligence work. So B has basically penetrated A's organisation right up to the top level, if we know not only what A's up to but what he's planning to do, where, and when.
2) B can't forestall him by warning local law enforcement or security forces, and having them arrest him, or at least step up security round the hotel. So this is a country with no effective police force or military. A country, in fact, that is next door to anarchy.
3) But it's still a country whose hotels are full of visiting Americans - even though it can't do anything to protect them and has no effective government. (Do a lot of Americans go and stay in hotels in such places?)

Not to mention the interesting point that McK is against the hassle of "extending due process to the far corners of the earth and limiting ourselves accordingly" but in favour of requiring a level of proof "approach the criminal standard of 'beyond a reasonable doubt.'"

McK, don't you realise that the way we get to "beyond reasonable doubt" is by using due process? Due process is the tool that your society, and mine, has developed to ensure "beyond reasonable doubt". You can't get the one without the other.

So if a US citizen abroad renounced his membership in Al Qaeda and declared that he/she would henceforth only plot against American lives as an independent operator, by dint of this technicality, our avowed murderer would fall outside your criteria?

"Technicality"? I'm not sure that's the right word when we're talking about such extreme measures as assassination of US citizens by the US government.

But generally speaking, yes. The authority to undertake this kind of action should come from legislation, and be very specific to armed groups undertaking acts of war on the US. Otherwise, it's too broad.

In the case of a lone individual with no group affiliation, we should stick to law enforcement. Incidentally, if he/she is a lone actor, he/she would not likely be much of a threat. Regardless, we deal with those individuals all the time, without special assassination authorizations.

If they are working with a designated militant group or al-Qaeda, but renounce affiliation with those groups, we don't really have to back off because of their words. Deeds matter more.

1) B knows for sure that A is planning to do this. Impressive intelligence work. So B has basically penetrated A's organisation right up to the top level, if we know not only what A's up to but what he's planning to do, where, and when.

Part of what makes for a discussion of what should or should not be legal is constructing a fact pattern that eliminates other doubts that produce collateral quibbling. The more likely scenario is that the Actor has already committed one or more acts of terror and is established to be receiving funds and taking other preparatory steps to carry out some unknown and likely unknowable attack.

2) B can't forestall him by warning local law enforcement or security forces, and having them arrest him, or at least step up security round the hotel. So this is a country with no effective police force or military. A country, in fact, that is next door to anarchy.

Or, like Yemen, doesn't cooperate with the US or cannot cooperate effectively. Or, like the Sudan or Somalia or any number of other remote areas. Yes, these do exist.

3) But it's still a country whose hotels are full of visiting Americans - even though it can't do anything to protect them and has no effective government. (Do a lot of Americans go and stay in hotels in such places?)

Clever. But I was actually thinking about, you know, getting on an airplane and flying to a country that has hotels that Americans visit. Maybe in Egypt or Rome.

Not to mention the interesting point that McK is against the hassle of "extending due process to the far corners of the earth and limiting ourselves accordingly" but in favour of requiring a level of proof "approach the criminal standard of 'beyond a reasonable doubt.'"

McK, don't you realise that the way we get to "beyond reasonable doubt" is by using due process? Due process is the tool that your society, and mine, has developed to ensure "beyond reasonable doubt". You can't get the one without the other.

My keen legal training and 30 years of practicing law says otherwise. There are three standards of proof: beyond a reasonable doubt, clear and convincing evidence and a preponderance of the evidence. Any and all of these can be employed in a fact finding process that is ex parte, i.e. the object of the fact finding process has no notice of the process and/or has not been been permitted to appear and tell his/her side of the story. "Due proces" means two things, notice and the right to be heard. The burden of proof is irrelevant to notice and hearing. In fact, one can--and too often does--have every process that is due, but is yet convicted or cast in judgment civilly on far less than the proof level the law theoretically requires. Put differently, burden of proof is relevant to due process in the same way that the US Congress is relevant to generic democracy: you can have one without the other, even if the two happen to fit more or less well together.

The more likely scenario is that the Actor has already committed one or more acts of terror and is established to be receiving funds and taking other preparatory steps to carry out some unknown and likely unknowable attack.

"More likely" based on what evidence, McK? On the evidence to hand, the most likely scenario is that people were doing torture and had reports to write, so Actor was identified as someone who was claimed to have committed "one or more acts of terror", and was claimed to have "received funds" and was claimed to have carried out "preparatory steps" and these claims, based on what someone screamed at the US soldiers who were torturing him, will be used as justification for committing murder.

My keen legal training and 30 years of practicing law says otherwise.

I hope this is a joke. A lawyer who's gullible enough to think that if the President of the US says someone's guilty, that means they MUST be? Tell me you are joking about claiming to be a lawyer? Who do you work for - Judge Lynch?

Jes--really, you are better than this. You've read my stipulations and limitations. I've clearly said that not adhering to them should and would be a crime. You change the terms of the debate from "established" or "proven" to "claimed". No one ever said anything about targeting someone accused or alleged to be planning murder. The evidence, reviewed by a third party, must approach guilt beyond a reasonable doubt. Conceptually, I think you are capable of understanding this notion even if you don't think the US is capable of staying within these parameters.

And, yes, I am a lawyer and my analysis of the difference between burden of proof and due process is valid.

You change the terms of the debate from "established" or "proven" to "claimed"

Yes. Dick Cheney and George W. Bush both claimed in public, over and over again, that it was established, proven, a matter of fact, that their kidnap victims in Guantanamo Bay were all dangerous terrorists.

You say I'm "changing the terms of the debate"? No. I was just alive and reading the news for the past ten years. You evidently were sitting there with your eyes shut and your hands over your ears (except when Fox News was on) while your government claimed they knew people were guilty. You want me to believe a US government "claim" that someone is guilty is the same as "established" or "proven"? You will need, somehow, to make me forget the past ten years.

You've read my stipulations and limitations. I've clearly said that not adhering to them should and would be a crime.

And yet, I've never seen you assert that you think that George W. Bush or Dick Cheney or Donald Rumsfeld or all the rest of the criminal crew ought to be arrested, prosecuted, and - hopefully - convicted - for claiming they "knew" people were guilty and using that as a justification for kidnapping, extra-judicial imprisonment, and torture. Tortured victims have sometimes died of their mistreatment at US hands, of course, but now Obama wants to add outright murder to what the US can do on the basis of what the US government "just knows"?

The evidence, reviewed by a third party, must approach guilt beyond a reasonable doubt.

Who is the third party going to be - the International Criminal Court? I somehow doubt that the US government will consent to have their private criminal practices reviewed by the ICC or any other independent body.

Conceptually, I think you are capable of understanding this notion even if you don't think the US is capable of staying within these parameters.

Have you got any evidence in the world that the US even recognises these parameters?

Jes--really, you are better than this.

I was blogging under a different ID in 2001-2002, or you'd recognise exactly the outrage I felt then as it became clear the US intended to set up an illegal prison camp and break the Geneva Convention.

As I recognise in your comment the slightly smug, surprised tone of superiority, with which so many Americans met my anger: as far as they were concerned, if their President deemed these men guilty, that was enough: let them go to Guantanamo Bay. They must be dangerous terrorists, the worst of the worst, taken on the battlefield: the President said so.

No, McKinney. That's not enough. And I'm genuinely disturbed to find that a lawyer thinks it is.

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