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September 30, 2011

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And, really, what politician would announce that they were deliberately targeting civilians?

Bin Laden and Awlaki?

Look, I read Russell's argument as 'look, the UK were faced with the equivalent situation and here is what they did, why can't we do the same?" Yet there was apparently a shoot to kill order. The violations of civil rights were just as bad (remember the Guildford 5?) as using a drone to target someone. Size of ordinance has nothing to do with it. As for the principled issue, please see my posting of what Robert Farley wrote.

Also, I suspect there is a deixis problem here, as I wrote
the IRA concentrated their overseas attacks on military installations and visible representations of the government.

By overseas, I meant 'overseas for the IRA'. None of the incidents you listed occurred outside the UK. In fact, all the events you listed were in England (there was only one bombing in Wales and Scotland, at an oil terminal in the Shetland Isles, when Queen Elizabeth was opening the facility). so my point was to highlight the IRAs policy in attacking British bases in Europe (or more specifically, Germany) That doesn't even touch on the very debatable issue of whether warnings were issued for bombings that had a high likelihood of injuring civilians. So I have to respectfully suggest that you misread me and your lengthy comment, if read in isolation, ignores the long history of Irish-English relationships along with the constant attempts by the Irish to _militarily_ face the English and then says that one view is correct. I'm sure that is not your intent and I'm sure that you know that one of the constant tensions in the IRA was drawing the line between what was possible and what was not and this debate was framed as what was 'military'.

You close by saying that the Provo philosophy is different from AQ, which is precisely the point, because it means that you can't make the simple claim (and I think that Russell's argument has this underlying assumption) that we should behave like the UK did.

Donald, I'm curious if you watched the Atran bloggingheads and what you thought.

Look, I read Russell's argument as 'look, the UK were faced with the equivalent situation and here is what they did, why can't we do the same?"

For the record, you misread my argument.

I don't really care what the Brits did with the Provos. Or, at some level I care, but that isn't really where I was going. I'm not sure I would pick the UK as the model for observing civil rights, especially when it comes to their actions wrt Ireland.

My argument, or point, was much much simpler:

Imagine some other country blowing up people they didn't like, here, in the US. Imagine the people they were blowing up were bad actors, who that other country had some reason to see as a threat. But imagine the way that country went about insuring its own safety was to come here, to the US, and then assassinate those people by blowing them up.

Further, imagine that, in the process, they also blew up whoever else happened to be standing nearby. And imagine that happening in a ratio of 10 to 1, or even 1 to 1, or even 1 to 10.

Think of what that would look like, think of how it would affect your life. Think of how that would lead you to think and feel about that country.

Then think about what it would be like if, on top of that, there was bugger-all you could do about it, because the country blowing up your friends and neighbors in order to kill their enemies was sufficiently richer and more powerful than the US that they could simply do it and no-one could say or do much about it. More than that, imagine that they were sufficiently richer and more powerful that they could basically pressure your own government into helping them.

Imagine all of that. That's my point. It's not very complicated.

Is it really in our best interest, as a nation, to go around blowing up people all around the world, in order to assassinate some people who want to harm us.

I don't think it is.

Perhaps it would be better if we merely declared war on Yemen for harboring people who sent bombs to the United States so that envy wouldn't have to deal with weasel words and challenging concepts.

"Challenging concepts". Heh. So the problem is that the people who complain about your using specious language to conflate things like "being provided operational support by" and "attending a mosque led by" are really merely too unimaginative and ignorant to deal with "challenging concepts". 'Cause it's challenging to take vague, broad associations as givens rather than going the simplistic and lazy route of clarifying what the connections actually are, assessing their significance, and establishing how they relate to the law as written. I'll keep that in mind.

But Congress didn't see it that way, and even though you believe (without citing a single authority) that something is amiss legally, the Executive has the responsibility to use Executive authority to protect the country.

Yes. Congress saw fit to authorize military force in a defined set of circumstances. They did not write the law so as to provide the Executive the authority to use military force to prevent all future terrorist attacks, regardless of provenience. Which is why, ya know, it matters as to how those defined circumstances be interpreted.

I will note that it's interesting to see you cite in the same breath Congressional authorization to use force to prevent recurrence of terrorist attacks and inherent Executive authority to do so. Either the Executive had the authority w/o Congress's by-your-leave (in which case the first part of that sentence is meaningless) or the Executive needed Congress's permission, in which the last part is misleading, to say nothing of your elision of the need to identify targets of military force as actually belonging to the groups that force was authorized against. And if it's the former case, your assertions that the Executive doesn't have carte blanche to assassinate whomsoever they please are thoroughly disingenuous.

You still haven't explained what it means legally to be at war with individuals, BTW. Although I suppose I could point out that for all your calls for us to pay careful attention to the text of the AUMF (well, not too careful), I'm deeply fascinated by your insistence that we're "at war" with them, given how nowhere in said bill is there any such declaration (and for good cause, seeing how they're, ya know, individuals). To say nothing of your continued insistence that anything goes if we are at war with 'em, that the whole line about "necessary and appropriate" was meaningless fluff, that the laws of war don't apply because Everything Changed!!!

See, here's the problem with that. You've repeatedly shown yourself to be willfully ignorant of military legal matters. That's fine. You have that luxury. Not everyone does. There are those people who need to know what the laws governing war are, and there are those people whose job it is to make sure they're widely understood. I'll flat-out say that you're grotesquely wrong when you repeatedly make your blithe assertions that all we need to do is turn this into a military operation and all questions of proportionality, appropriate use of force, and rights are discarded. Flat-out wrong. Again, as a civilian you have the luxury of thusly being. Not everyone does. But it's more than a little appalling that anyone at all would hold such an opinion.

envy, I really don't appreciate being called willfully ignorant, when I have cited sources, and you have not. In fact, all you do is cast aspersions and say "illegal!" "that's not what it means!" "you are ignorant!"

If you have a definition for "necessary and appropriate" in this context (a definition not made up by you, preferably) let's have it. If you want to cite a legal authority to explain the parameters of the AUMF, please do so. As it is, the wording of the law is very broad, and it gives the Executive a lot of discretion. You who are so knowledgeable about the scope and limits of military authority, let's see your stuff. There are ZERO cites in any of your bloviations.

Think of what that would look like, think of how it would affect your life. Think of how that would lead you to think and feel about that country.

Don't really know, except that maybe it would encourage me to deter the bad actors. Especially mass murderer bad actors.

Come to think of it, if my neighbors were mass murderers, I would wonder why the hell they were in my neighborhood.

Which is, unfortunately, the situation in Yemen and Somalia (for example). There are some really nasty things going on there, and they don't just have to do with the United States.

And, really, what politician would announce that they were deliberately targeting civilians?

Bin Laden and Awlaki?

LJ, what offices have they run for?

I wouldn't call them "politicians," but if you categorize them that way, okay.

[...] it means that you can't make the simple claim (and I think that Russell's argument has this underlying assumption) that we should behave like the UK did.
I wouldn't make such a simple claim. Russell has clarified that he isn't, either.

I hope we've untangled this now. :-)

Don't really know, except that maybe it would encourage me to deter the bad actors. Especially mass murderer bad actors.

That's not how human beings react when outsiders start blowing up their neighbors. Instead, they tend to close ranks and assume that the outsiders are evil monsters who have no problem killing random innocent people. And let's face it, after we blew up the a couple of random Afghan weddings, that assessment is basically correct.

The truth is, most people don't know a damn thing about what their neighbors are doing, especially when we're talking about terrorist cells communicating covertly and trying to stay under the radar.

I'm really astonished at the blithe acceptance of collective responsibility leading into acceptance for collective punishment. Although, after watching the exchange with envy, I really shouldn't be.

Does anyone think that the neighbors of a guy who, say, managed the Bhopal disaster should have done 'something' to him? What? Should they have beaten him up? Keyed his car? Threatened him until he left town? Are we all supposed to learn, in great detail, the secret international effects of all our neighbors' doings so that we can engage in rank vigilantism? Or are we now saying that it is not really wrong to kill neighbors BECAUSE they hadn't discovered all the goings on? This is some really disturbing thinking....

On the other hand, Turbulence, I don't know where you live, but would you like Ted Bundy living in your neighborhood? It's okay if he (other than the kind of crazy stuff he does sometimes) minds his own business and stays out of yours?

I live in an American city with a large Irish population that sent lots of cash and guns to the IRA back in the day, while the FBI, full of Irish agents, looked the other way. I guess terrorism is only wrong when performed by Arabs.

would you like Ted Bundy living in your neighborhood

Of course not. If I knew that one of my neighbors was a serial killer, I'd do something about it. But I can't know if one of my neighbors is engaging in extremely secret communiques with a terrorist organization. I can't spy on the internet activities of all my neighbors nor can I monitor all their postal deliveries. I just can't know that. That is the nature of living in community. Do you actually live with other people? Because you seem to believe some really odd things about how much people can know about their neighbors.

Sapient, just to be clear, are you asserting a positive moral obligation for everyone on Earth to monitor their neighbors and impose vigilante justice on them?

Did I say anything about imposing vigilante justice? No, of course not. I might be relieved if a mass murderer was removed from my neighborhood by the aggrieved foreign country representing the victims.

As to civilians who are killed alongside legitimate targets (if you think that any target is legitimate), of course that is a horrible consequence. If one is analyzing the cost of war, there is no such thing as "just war" if one decides that it is never permissible to risk harm to civilians. In that case, one must be a pacifist.

Are you a pacifist, Turbulence?

Did I say anything about imposing vigilante justice?

No, you said:


it would encourage me to deter the bad actors. Especially mass murderer bad actors.

How exactly does one deter "bad actor" neighbors? I mean, you've described these people as mass murderers, so I'm guessing that asking nicely is not going to cut it. What can one do short of vigilantism to "deter" a terrorist who lives next door?

And you still haven't answered the question: how are we to know whether our neighbors are involved in 'bad actions' overseas?

Well, for one thing, they might not be such great neighbors:

In Abyan, abutting Shabwa to the southwest, Islamic militants first seized Jaar in late March, raiding its banks and taking over government buildings. From Jaar they moved south to take over the coastal provincial capital, Zinjibar, in May.

According to residents of Jaar and Zinjibar, security forces fled the two cities, allowing the militants to enter and wreak havoc. The fighting in Abyan has displaced thousands of civilians who fled to the nearby coastal city of Aden.

Until July, the government, preoccupied with unrest in the capital and elsewhere, seemed to pay little attention to Abyan. Only one brigade, whose allegiance was unclear, battled the militants there. For months, the brigade, led by Gen. Muhammad al-Somli, was trapped by the militants in a sports stadium outside Zinjibar, during which it received at least one airdrop of food and essential supplies from the American government.

People like OBL or Awliki or actively hiding from a government are not going to rob banks or otherwise draw attention to themselves. Just like most of my Irish neighbors who sent cash and guns to blow up English people did it on the down low; they didn't draw lots of attention to themselves.

So, again, how we are supposed to know that our neighbors are engaged in secret terrorist activities? And if we can't know that, how are we supposed to deter them?

Plus, even when we can know that, how exactly are we supposed to deter people who can take on the government, without using vigilantism? I'm still confused by what mechanisms you had in mind; apparently, not vigilantism, but I really don't think asking nicely over a cup of tea would be effective against mass murdering bank robbers.

So you're fine with mass murdering bank robbers living next door to you? You're surprised when somebody else does something about them when they've gotten so strong that they can take on the government?

Oh, but it's fine when mass murdering bank robbers take on the government, maybe, in your world. If it were my world, I'm not sure I'd be fine with that. And I certainly wouldn't be surprised if people representing the victims took violent recourse.

Again, are you a pacifist, Turbulence? Because, if you are, I certainly respect that. But you have to figure out what your policy would be against mass murderer bank robbers who nobody seems to be able to do something about. Or even if you're not a pacifist, what do you propose?

sapient, would you mind answering the questions I asked in my 10:12 pm post? I've tried to answer the questions you've asked me, but so far, you haven't answered the questions I've raised.

Thanks.

Okay, Turb. I will answer your hypothetical from Wonderland:

If they are secret terrorists, you don't know that they're terrorists. If you don't know, you can't deter (although perhaps you would generally hope that your government had a clue, and if you knew that your government didn't have a clue). If they're not secret, and they can take on the government, maybe you're happy that someone who's stronger than they are can take them out? Maybe not, but I would be.

Now, you answer my questions. Are you a pacifist? Do you believe that it is ever justified to risk civilian lives in order to kill people who are enemies in a war?

envy, I really don't appreciate being called willfully ignorant, when I have cited sources, and you have not.

[...]

If you have a definition for "necessary and appropriate" in this context (a definition not made up by you, preferably) let's have it.

If you need hand-holding, here. Knock yourself out. There's plenty of other applicable treaties and regulations governing conduct in war, but that's as good a starting place as any.

...this is pretty much why I judge you to be willfully ignorant. The law of war isn't exactly obscure and secret. But rather than looking to it in order to make the case that In War Anything Goes, or Oh Yes He So Totally IS A Combatant, you've again pulled out the text of the AUMF, as if its authorization to use military force somehow removes standing legal limits on how that force may be applied. It doesn't. And it's not even pretending to, as is made clear as day by its "necessary and appropriate" verbiage. The President is bound by the laws of war. Every troop under his command is as well. Your condescending allusions to "everything changing" and "new war" don't change that. The military of the United States remains bound by the laws of war. You obviously don't like this fact, but you don't have to. You've not sworn an oath to accept this. Some people have.

your hypothetical from Wonderland

The innocent people in Afghanistan, Pakistan, Iraq, Somalia, Yemen, and God knows where else who have been exterminated by the US are not hypothetical. They were real human beings.


If they are secret terrorists, you don't know that they're terrorists. If you don't know, you can't deter

Ah, OK. In that case, your earlier comment where you wrote "it would encourage me to deter the bad actors. Especially mass murderer bad actors" was just completely irrelevant to cases like OBL or Awliki or the many many Irish folk who funded terrorism from the US.


In any event, you never answered the other questions I raised:

Plus, even when we can know that, how exactly are we supposed to deter people who can take on the government, without using vigilantism? I'm still confused by what mechanisms you had in mind; apparently, not vigilantism, but I really don't think asking nicely over a cup of tea would be effective against mass murdering bank robbers.

I mean, if I knew that my neighbors were assembling cash and guns for terrorism, what should I have done short of vigilantism (this is not hypothetical: I have lived in neighborhoods that sent lots of cash/guns to the IRA)?

Now, you answer my questions.

I find it helps to occasionally say "please". Can you do that?

Are you a pacifist?

No.

Do you believe that it is ever justified to risk civilian lives in order to kill people who are enemies in a war?

Is it ever justified? Sure. That doesn't mean that it is always justified or that it is justified right now.

Moreover, 'kill people who are enemies in war' isn't really something I can make sense of. We have laws of war and doctrines that describe proportionality and double effect and all manner of complex things that you don't seem familiar with. Under such systems, questions about whether you can kill 'enemies' can become quite complex, and I'm not even certain that I think such systems are optimal to begin with....

We have laws of war and doctrines that describe proportionality and double effect and all manner of complex things that you don't seem familiar with. Under such systems, questions about whether you can kill 'enemies' can become quite complex, and I'm not even certain that I think such systems are optimal to begin with....

Yes, yes, a thousand times yes. Operational Law is a tangle. It's complex, it's involved, and it's sure as hell not "Anything Goes".

Yes, yes, a thousand times yes. Operational Law is a tangle. It's complex, it's involved, and it's sure as hell not "Anything Goes".

I'm glad we've got that straight.

"And I certainly wouldn't be surprised if people representing the victims took violent recourse."

"Wouldn't be surprised" means what exactly? You wouldn't be surprised if foreigners starting blowing up all the war criminals that live in the US, some of them citizens and some not? Some might even be high ranking officials, past or present. Would this be a good thing for foreigners to do?

Here are some that have been in Turb's neck of the woods--

link

And that's just the non-American ones. Anyone keep track of where Kissinger is?

You know, sapient, I'm impressed. I think this is the first time in all the years I've commented on ObWi that I'm going to walk away from an argument in mid-stride because it's that glaringly obvious that I have better, more meaningful things to do with my downtime.

Enjoy the warm fuzzy feeling of having vanquished me, and thereby having proved that you're totally right, and I'm an ignorant dissembler with no idea what I'm talking about.

No, Donald. I wouldn't be surprised. Who said anything about "good"?

"Anyone keep track of where Kissinger is?"

Popping into his friends' parties to tell them to tell Chris Christie to run for President.

Mostly in NYC.

He's also spending time incognito at Occupy Wall Street.

Okay, I'm making that last part up.

Well, sapient, we went off on this tangent where you seemed to be defending US actions in Somalia on the grounds that people there shouldn't be surprised to see us blowing people up in their country. I had the impression you were defending our actions, so I wondered if it cut both ways. I guess not.

Kissinger:

[...] At a fund-raising event in SoHo this year for New Jersey Republicans, with Mr. Christie as a host, Mr. Kissinger showed up. A person who was there quoted Mr. Kissinger as saying: “At my age, I have other things to do than to spend a Thursday night at a fund-raiser — but this guy is so important to the future of our country that I came here to tell you that you have to support him — and now I have to go.”

Mr. Kissinger was also among the guests at a meeting of dozens of top donors and other prominent Republicans convened by Ken Langone, the Home Depot founder. Mr. Kissinger surprised some of those there, according to a person briefed on the meeting, when he spoke up and urged Mr. Christie to run, saying that he would best represent United States interests abroad.

Also, he's back to socializing with Conrad Black.

He was at the Metropolitan Opera last week, too. Picture!

It's good to be a war criminal and live to 88 in luxury and respect in the United States.

All he needed was a decent interval.

What's mildly interesting about this is that a huge fuss is being made over the US government murdering a civilian, because he happened to have American citizenship.

Pardon me, good people, but does that mean that it's OK for the US government to murder civilians if they happen to be foreigners?

Of course not, you will say, but the grim fact is that murders of this kind have been taking place almost every day for the last few decades (not drones, of course, before 2002, but every other kind of murders).

The United States is a terrorist state which arrogates to itself the right to murder civilians in order to intimidate other civilians into submission.

You don't like that, deal with it. sapient deals with it by cheering on the murderers. Fair enough. Lots of people cheer murderers. But how do the rest of you deal with it?

The Creator,

I sort of had the same feeling (protection from being murdered by drones is equally afforded to citizens and non-citizens under both the 5th amendment and the laws of war), but minus the obnoxious tone. If you regularly read ObWi, you should be aware that most of the people here objecting to murdering a US citizen by drone have previously and loudly objected to murdering non-citizens by drone. Indeed, even in this very thread, multiple people have clearly objected to murdering non-citizens by drone (or other means). In fact, no recent comment has made the citizen/non-citizen distinction.

So ObWi might not be the most reasonable place to be reprimanding the commenters for having focused on the citizenship part.

So you're fine with mass murdering bank robbers living next door to you?

The line of argument appears to have gang agley.

He's also spending time incognito at Occupy Wall Street.

I heard he was looking to score good position at the free Radiohead concert.

"Julian, there hasn't been much case law on the AUMF, but Hamdi makes it clear that a United States citizen doesn't merit special treatment if he has joined enemy forces, and the decisions don't question the Constitutionality of the AUMF or question its breadth."

Sorry that I was late to respond, but I wanted to say: I don't know what you mean by "special treatment." Do you mean "special good?" Or "special bad?" Or do you mean "special" as in "treatment like that received by other U.S. citizens accused of crimes?"

I will quote the wikipedia page on Hamdi:

"Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly authorized the detention of enemy combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his enemy combatant status. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though because of the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O'Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defense created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand." The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required."

Further paraphrasing the WP page, 8 of the 9 justices agreed that the executive couldn't indefinitely hold a U.S. citizen without due process protections.

So, where in all of this do you find support for your claim that Hamdi merited no special treatment? Or where do you see support for due-process-free assassination of U.S. citizens?

If I knew what you meant by "special treatment" I would be better able to tell you whether your argument has any support in the law.

These are the sorts of specifics I was referring to needing more of in my last post. Thank you for your response!

Julian,

Hamdi was found to be eligible for "enemy combatant" status, for the purposes of the AUMF, even though he was a citizen. That was my point.

Because he was a citizen, the question before the court was (after the court found that he was an enemy combatant) whether the Executive has the authority to detain citizens who qualify as enemy combatants, and what process is due in such a case. There was no opportunity or need for them to determine whether Hamdi, a citizen, would receive more protection than non-citizens. Then in Rasul v. Bush, the court considered the question of whether federal courts have jurisdiction to consider habeas corpus petitions of non-citizen detainees of United States held in military custody (in Guantanamo). It held that they do.

In other words, to the extent that the Court has considered it, it has held that citizens and non-citizens can be "enemy combatants" and that both categories have the right to question their detention.

Neither case talked about whether due process was to be accorded before being killed on the battlefield. I think the relevant question would be (in this case) whether a drone attack targeting a specific person is a "killing on the battlefield", not whether the target is a citizen or non-citizen.

At the risk of playing yet another round of "stick, meet dead horse", I thought this piece by the always-highly-readable Thoreau at High Clearing was spot on.

Conor Friedersdorf:

[...] But the actual legal reasoning the Justice Department used to authorize the strike is secret. Classified. Information that the public isn't permitted to read, mull over, or challenge.

Why? What justification can there be for President Obama and his lawyers to keep secret what they're asserting is a matter of sound law? This isn't a military secret. It isn't an instance of protecting CIA field assets, or shielding a domestic vulnerability to terrorism from public view. This is an analysis of the power that the Constitution and Congress's post-Sept. 11 authorization of military force gives the executive branch. This is a president exploiting official secrecy so that he can claim legal justification for his actions without having to expose his specific reasoning to scrutiny. As The Post put it, "The administration officials refused to disclose the exact legal analysis used to authorize targeting [Awlaki], or how they considered any Fifth Amendment right to due process."

Obama hasn't just set a new precedent about killing Americans without due process. He has done so in a way that deliberately shields from public view the precise nature of the important precedent he has set. It's time for the president who promised to create "a White House that's more transparent and accountable than anything we've seen before" to release the Justice Department memo. As David Shipler writes, "The legal questions are far from clear-cut, and the country needs to have this difficult discussion." And then there's the fact that "a good many Obama supporters thought that secret legal opinions by the Justice Department--rationalizing torture and domestic military arrests, for example--had gone out the door along with the Bush administration," he adds. "But now comes a momentous change in policy with serious implications for the Constitution's restraint on executive power, and Obama refuses to allow his lawyers' arguments to be laid out on the table for the American public to examine." What doesn't he want to get out?

Does everyone know who David Shipler is? In any case, try his problems with this, as well.

Bits:

[...] Given how wrong the CIA was about weapons of mass destruction in Iraq, is it really sufficient to base a death warrant on intelligence operatives’ untested assertions? How can their accuracy be checked? Does the Fifth Amendment’s right to due process extend to Americans overseas? Due process, after all, was the Framers’ effort to enhance the accuracy of the criminal justice system. Is there another way that an independent review can be done before a missile is sent in the direction of some named person who is not on a battlefield? Isn’t it strange that under Obama’s reasoning, the president can’t order torture but can order death, that he needs a judge’s authorization to listen to an American’s phone overseas but needs no such judicial approval to end the citizen’s life?

[...]

So, why bother to bring the guilty man in for a fair trial? For thorough truth-finding, one could say, or to uphold the pageantry of constitutional justice, which is a crown jewel of our democracy. To lend unquestioned legitimacy to the ultimate sentence, even if it is death, so the world does not look upon America with repugnance. To keep the trappings of civilized order so that we do not become a vigilante state. To stop ourselves from taking a step down a long slope whose ends might be oppression very different from anything we can now imagine. “It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings,” Justice Robert H. Jackson once declared.

Yes.

Neither case talked about whether due process was to be accorded before being killed on the battlefield.
Which is every square inch of planet earth, right?

For what it's worth, I agree that the legal opinion justifying the action against al- Awlaki shouldn't be secret. For that I will criticize Obama.

Good to agree on at least a few things, sapient. Thank you.

There's more common ground than one would think by looking at some of these discussions, Gary.

Anyway, in case you haven't read it lately, Al-Aulaqi v. Obama, especially the third section on the political question doctrine, provides some clues as to some of the ground the legal opinion probably covers.

So - occasional letter bombs, sent by the British government, blowing up people here in the US. Sometimes people who supported IRA terrorism, sometimes folks who were just in the wrong place at the wrong time. Collateral damage as it were. But, at least some of the time, folks who were actively involved in planning or supporting acts of terrorist violence against British citizens.

Would that be wrong? If so, why?

Russell raised this hypo a couple of times. Here's what distinguishes An-a-Al in Yemen from Seamus in Boston: Yemen is a country in name only with no internal law enforcement apparatus, no treaty with the US and the terrain and people are so hostile that there simply is no US law enforcement agency configured and trained to make a forced entry and arrest An-a-Al.

If A-a-A were in western Europe or many other places in the world, this *would* be an intelligence/law enforcement issue. He isn't and therefore it isn't. Indeed, much of the discussion opposing his assassination was bottomed on his relative innocence or the lack of compelling proof of guilt, which begs the question: so what, what if he's guilty as sin and everyone agrees? The consensus answer here is: so what, it's still law enforcement, etc, etc.

Russell: I have a couple of unanswered questions from the other side:

1. Which law enforcement agency would you send into Yemen to capture A-a-A and why?

2. Suppose it was proven conclusively that an American citizen, using Yemen as a refuge, had successfully targeted and caused the death of American citizens and that he was continuing to do so? Suppose further that no US law enforcement entity has the training, wherewithal, etc to enter Yemen successfully and capture this person? What's a president to do?

Suppose it was proven conclusively that an American citizen, using Yemen as a refuge, had successfully targeted and caused the death of American citizens and that he was continuing to do so?
How do you suggest that be done outside a courtroom?

McK, your questions assume that there must be some lawful, legitimate, and/or permissible way for the US to get their hands on Al Awlaki.

Never mind lawful, legitimate, and/or permissible. Your question assumes that there is some way for the US to get their hands on Al Awlaki that simply nets out in our favor, when balanced against all of the possible negative consequences that might flow from it.

That might not always be true.

Some bad actors get away.

What's a President to do? What he is sworn to do, which is faithfully execute the laws of the United States of America.

And for the record, my hypothetical wasn't about the Provos or the UK. It wasn't meant to draw an analogy between the Provos and Al Qaeda, or between the US and the UK, or between Yemen and Ireland.

To reiterate: it was meant to do one very, very, very simple thing.

It was meant to prompt you to consider how you would respond to some other country blowing up people in your neighborhood.

No-one has ventured a reply to that. Other than sapient, of course, who apparently would find it congenial, provided that the people blown up were mass murderers, serial killers, or bank robbers.

How do you suggest that be done outside a courtroom?

There are many techniques for proving things that work outside a courtroom. For example, one could prove it by induction. Or better yet, proof by contradiction: we exterminate Awliki, and then, when terrorism stops forever, we know that he was the cause.

Or better yet, proof by contradiction: we exterminate Awliki, and then, when terrorism stops forever, we know that he was the cause.

And if it doesn't, then try, try again.

russell: What's a President to do? What he is sworn to do, which is faithfully execute the laws of the United States of America.

Yes, and Obama has faithfully executed the Authorization to Use Military Force, Public Law 107-40 [S. J. RES. 23], Sept. 18, 2001.

russell, my serious point about blowing people up in my neighborhood was this: If my neighbors were the Shabab Islamic insurgent group who was blocking starving people from getting food, or Yemeni militants who had just driven out 100,000 civilians, I would be quite happy to have them blown up.

I love how when it comes to stopping a genocide in Rwanda or Darfur or ethnic cleaning in central Africa, the US government is all 'screw our treaty obligations, there's no way we could do that...I mean, who would pay for the gas for our airplane?!' but when some local Islamist group in a failed state with neither the interest nor the capability of launching international operations decides to goose up their recruiting by declaring that they're actually a local Al Queda franchise, BOOM! Legal problems with invading a foreign country? Gone. What about sovereignty? Someone said the word terrorism, so that no longer matters. Who will pay for all this? No problem! Predators are free! Questions about targeting accuracy? Meh, the CIA will do fine; they know all about East Africa. Collateral damage? Dude, have you ever been to Somalia? The people there have really really dark skin. So, killing them is OK.

I remember back in the day when it was explained to me by very serious foreign policy people that, treaty obligations aside, the US government really could not just intervene militarily to stop ethnic cleansing and genocide because of a huge host of legal, ethical and military reasons. Some of them even made sense to me at the time. But all that just gets swept aside like morning dew beneath a hellfire missile strike because some guy somewhere mentioned the word Al Queda, and Americans, cowards that we are, now must rush in to blow up people somewhere.

It is breathtaking. I think I will go throw up now.

I don't know how many times we have to fail spectacularly at radically transforming alien societies by blowing shit up with death machines in the sky before we learn that we don't know how to do it right. This isn't even arrogance or hubris anymore; we've regressed into some bizarre infantile state where GI-Joe will solve all the problems in the world because Joe is a badass. Even as a little kid playing toy soldier, I was never this naive about the efficacy of blowing people up as a way to change societies.

sapient, you're a lucky dude. Your neighbors will never, ever, ever be Shabab or a band of Yemeni militants.

Turbulence, not sure what that rant was about, or how it has to do with really, really dark skin.

russell, I sure hope you're right that my neighbors will never be those people, or anyone like them. Not sure what your point is with that. But my point, in case you didn't get it, is that your emotional appeal that it would be terrible, just terrible, for neighbors to be blown up doesn't really apply if you live in a neighborhood like that.

But my point, in case you didn't get it, is that your emotional appeal that it would be terrible, just terrible, for neighbors to be blown up doesn't really apply if you live in a neighborhood like that.
Is it your assertion that the population in general in Yemen favors U.S. air strikes in Yemen?

If so, do you have some evidence to that effect?

If not, your analogy seems to completely fail.

Am I missing something?

I think I am not getting your point, unless your point is that, in fact, al-Awlaki's "neighbors," which I'd take to be the folks/tribes living within, say, a fifty mile range of where he lived, agree with you that incoming Hellfire missiles in their "neighborhood" are desirable, or at least unobjectionable.

If that is your point: evidence of some sort?

If that's not your point, I'm being a little slow in grasping it, other than that you have seem to assert the AUMF covers every possible possible military attack on anyone in the world, anywhere, that the president of the U.S. designates is a desirable target.

If that's not your point, could you perhaps explain any limitations of geography or circumstances to the above?

I'd appreciate any specificity you could include in your response.

Can the president legally, in your view, order a Hellfire strike in a U.S. city? A J-DAM? A bunker-buster bomb? A nuke?

And speech is sufficient to warrant execution, yes? No?

If my neighbors were the Shabab Islamic insurgent group who was blocking starving people from getting food, or Yemeni militants who had just driven out 100,000 civilians, I would be quite happy to have them blown up.

Just out of idle curiousity, how many drone attacks or other bombing events have you lived through personally, that you feel so glibly confident saying this?

(j/k you don't really have to answer since we both know the answer is "zero" and you're being full of it, here.)

Gary, the term "execution" isn't used for lawful killing in war. I think we've been over this, already though. And, although I don't have a read on the general population of Yemen, neither do you.

Phil, as for whether I've lived through bombing events, no. I do have close friends who are Bosnian, who live here now. Although they didn't much like the bombing experience of their neighborhood (their very street), they were quite happy to see it coming and to see it happen. They weren't fond of their fascist neighbors either.

And my WWII veteran friends, some of whom are now deceased? They were quite well-received when they returned to France for a visit, where people (who probably didn't much enjoy the bombing experience itself) were quite happy to see them, because of the fact that bombing was done there. (And, Gary, we didn't do a poll there either.)

Sometimes neighbors are actually happy with bombing, even grateful for it.

Sapient, you claimed that the "constitutionality" of the AUMF had never been challenged. However, I pointed out that some applications of the AUMF were, in fact, successfully challenged in Hamdi. That is because a law can be unconstitutionally executed without being unconstitutional on its face. You then said that Hamdi said that citizens had no special rights.

So what? The question is why you think the AUMF authorizes the president to order due-process-free assassinations of U.S. citizens. Your claim that Hamdi says citizens and non citizens are "the same" when treated as enemy combatants does not address this question. Maybe the President cannot order due-process-free killings of EITHER citizens OR non citizens.

I then asked again what legal authority makes you believe that the president has the power to order due-process-free assassinations of U.S. citizens. You say it hasn't been addressed.

What makes you think that when it is addressed, it will be found constitutional? So far your argument seems to be that since drone assassination hasn't been considered by the court before ... it has a shot? I don't really understand.

The United States, through DoD spokespeople (I think), announced ages ago that An-al was on a kill list. I think this expresses the idea that he was going to get killed regardless of whether he was on a battlefield. Any application of the AUMF which allows the President to determine the size, scope, and duration of "the battlefield" without review means the President has unlimited power.

McTx: Here's what distinguishes An-a-Al in Yemen from Seamus in Boston: Yemen is a country in name only with no internal law enforcement apparatus, no treaty with the US and the terrain and people are so hostile that there simply is no US law enforcement agency configured and trained to make a forced entry and arrest An-a-Al. If A-a-A were in western Europe or many other places in the world, this *would* be an intelligence/law enforcement issue. He isn't and therefore it isn't.

So, whether or not we can assassinate someone under the Constitution and other law, depends on the location of the target? Really?

Suppose he's in England and the English refuse to extradite him, then what?

It was meant to prompt you to consider how you would respond to some other country blowing up people in your neighborhood.

If the US was harboring known terrorists who were operating against a third country or its citizens and not assisting in the capture/suppression of those terrorists, then we would be legitimately exposing ourselves to that third country's counter measures.

But, that isn't happening and hasn't happened.

Russell, I take it that your bottom line is that, if we can't execute an arrest warrant, we stand idly by and just take it?

Holmes, or someone, said the Constitution isn't a suicide pact. It doesn't cover every contingency. You would compel the US to accommodate a world that doesn't always lend itself to the domestic criminal paradigm. That's fine. It's also why a liberal presidential candidate, if he/she agreed with you on the campaign trail, would go the way of George McGovern.

A country, if you can call Yemen that, that harbors one or more groups attacking or attempting to attack US citizens is also outside the law. Invasion/military strikes are legal when that happens. If that were not the case, then the Afghanistan operation was illegal. There are probably those here who believe that to be the case. Good luck making that point to the vast majority of Americans.

How do you suggest that be done outside a courtroom?

You don't. You act in self defense, as the law allows.

Turbulence, not sure what that rant was about, or how it has to do with really, really dark skin.

Two things:

(1) As russell pointed out, you seem delighted at the prospect of massive violence coming to neighborhoods where you'll never live. Americans have a long history of deciding that massive violence is OK as long as only dark skinned folks are on the receiving end (special exemption offered to Asians during Vietnam).

(2) There are actually lots of reasons that the US didn't go blowing up everyone who said mean things about us pre-2001. Little things like sovereignty, the laws of war, concerns about killing civilians, the efficacy of military action when it comes to changing societies. You've just decided that all those concerns no longer matter because Americans are scared and have an AUMF. Even if the AUMF conflicts with other American laws.


But, that isn't happening and hasn't happened.

Incorrect. When Irish folk in American were sending cash and guns to the IRA, the British government complained mightily and the US government did absolutely nothing for many years.

A country, if you can call Yemen that, that harbors one or more groups attacking or attempting to attack US citizens is also outside the law.

This fantasy seems to have nothing to do with international law as I understand it.

McTx: Holmes, or someone, said the Constitution isn't a suicide pact. It doesn't cover every contingency. You would compel the US to accommodate a world that doesn't always lend itself to the domestic criminal paradigm.

Well, this is ridiculous. If Russia, China, India, the U.K., Germany, France, Canada, Japan, and Mexico all coordinated an invasion of the U.S., I might concede that perhaps we could set some Constitutional provisions aside (and look! I see Article 1 Section 9!). But, Jesus fncking Christ, one dude in Yemen, which is not a real country anyway as you note, and you're citing Justice Jackson as if there's some threat to the nation that we're allowed to counter by any means necessary. Could we just nuke the whole faux-country and be done with it, in "self-defense"?

Well, this is ridiculous.

Sure, nukes are entirely proportional to the question at hand, and not ridiculous at all.

The "one dude" argument fails, since OBL was "one dude". You don't know what An-a-Al was or was not up to. I conceded at the beginning of this that if he isn't guilty of really bad stuff, then the president's decision was really bad. You are making the "he isn't enough of a threat" argument. My counter is: imagine a threat big enough, and tell me where the line is drawn.

And while I'm thinking of this notion of "suicide pacts." How many nuclear weapons does Al Qaeda have? How many chemical weapons? How many biological weapons? How many ballistic missile submarines, aircraft carrier groups, M1 tanks, MRAPs, spy satellites, B-1s, B-2s, B-52s, F-15s, F-16s, F-18s, F-22s, AWACS, Apaches, AC-130s, etc. etc. etc.?

But hey, An-a-Al says "booga booga," so all bets are off.

Why are all you liberals questioning the government? You think government is the solution to every problem, so get it straight.

/stupid parody

So far no one has really established with any degree of certainty what the nature was of the threat that Anwar al-Awlaki represented for the United States. I guess he was a pretty superhuman kind of dude.

Russell, I take it that your bottom line is that, if we can't execute an arrest warrant, we stand idly by and just take it?

Let's not over-generalize. The question is, take what, exactly? See above.

If that were not the case, then the Afghanistan operation was illegal. There are probably those here who believe that to be the case. Good luck making that point to the vast majority of Americans.

The vast majority of Americans can be wrong sometimes, but leaving that aside, supposedly superhuman Anwar al-Awlaki was not involved in 9/11 and was not an entire, well-known, well-documented terrorist network unto himself. In short, going after Al Qaeda in Afghanistan has squat to do with the specific case we're discussing.

I mean, Anwar al-Awlaki, in all likelihood, was a real a-hole and probably someone I wouldn't shed any tears over. But it's not him, per se, that I'm worried about.

Americans have a long history of deciding that massive violence is OK as long as only dark skinned folks are on the receiving end (special exemption offered to Asians during Vietnam)

Ok, so one exemption.

When Irish folk in American were sending cash and guns to the IRA, the British government complained mightily and the US government did absolutely nothing for many years.

Make that two?

And then there are recent events in Egypt; Egyptians don't have particularly dark skins.

We didn't do all that much (some, arguably) to discourage widespread visitation of death and suffering in Bosnia, either. So maybe that whole skin-tone conversation is just a red herring that you might want to consider letting go of.

Or not, as you will. Because inhabitants of SE Asia and Egypt aren't quite as Nordic in complexion as Bill Clinton, George W. Bush, and assorted NATO member heads of state.

My counter is: imagine a threat big enough, and tell me where the line is drawn.

Well, okay: If the treat is big enough to make all the lines irrelevant, then it doesn't really matter, I guess. For instance, I'd advocate doing whatever was in our power as a nation to kill someone whose very existence was an immediate threat to the lives of all Americans.

But, so what? Why imagine? We're talking about a real person.

It sounds like you agree that this was a problematic killing, McKinney, short of evidence otherwise.

It sounds like you agree that this was a problematic killing, McKinney, short of evidence otherwise.

No, I don't because I do not believe that this administration would target a US citizen overseas without especially compelling reasons. Assuming, as I do, especially compelling reasons, I am ok with this kind of thing as a very, very rare exception to the more general rule that US citizens, here or overseas, are due all of the relevant constitutional protections. To me, especially compelling reasons are in the nature of the ticking bomb scenario common to the torture debate. I would expect, at a minimum, the following: (1) substantial evidence that X is actively planning and is capable of carrying out his/her plans, to kill American citizens, (2) that X cannot be apprehended by any other reasonable means and (3) that the planned attack is operational, that is, concrete steps to carry out the plan are in progress. If X is merrily planning to nuke NYC but has only a bag of firecrackers and no organization, then he/she is simply a sick loon. If X is the US version of OBL, and the other criteria apply, then an exception is warranted.

If the US was harboring known terrorists who were operating against a third country or its citizens and not assisting in the capture/suppression of those terrorists, then we would be legitimately exposing ourselves to that third country's counter measures.

But, that isn't happening and hasn't happened.

As Turb points out, exactly that did happen wrt England and the Provos.

Also, Posada Carilles. Also, the Hermanos Rescate folks.

Mexico could make a case for 'taking out', by whatever means, gun sellers in AZ who are known to have sold weapons to Mexican drug traffickers.

Especially if it lies with the executive of the offended country to decide who is and who is not worthy of military reprisal.

If we say it's OK for us, we have no basis for saying it's not OK for anyone else. As you yourself note.

It's a Pandora's box.

I have no problem stipulating that Al Awlaki was a bad actor, from our point of view. I have a big problem with the assumption that anything and everything that may flow from handling terrorism in this way is worth removing him from the picture.

Russell, I take it that your bottom line is that, if we can't execute an arrest warrant, we stand idly by and just take it?

My bottom line is that what we do needs to be lawful and proportionate to the threat.

The reason for that is because we live in a big world and there are lots of consequences, of all different kinds, that flow from acting without concern for the opinion of the rest of the world.

And above and beyond that, there are by intent and design limits to when, where, and how the President, or any agent of government, can apply deadly force. Those limits are there for damned good reason, and should not be relaxed for reasons of expedience.

My counter is: imagine a threat big enough, and tell me where the line is drawn.

I'm not playing.

We're not talking about hypothetical "threats big enough", whatever they may be. We're talking about a guy - one guy - who was involved in propaganda and recruitment. He may have been involved in operational planning for some past events.

The rest is conjecture.

If you, or anyone, wants to claim that Al Awlaki presented a threat large enough, imminent enough, and credible enough that we were compelled, in good faith, to send military force into another country to address it, then the burden is on you to demonstrate that that is so.

Folks seem to want to dismiss the concept of other countries coming here to assassinate folks living here who they think are their enemies. That has actually happened in the past, and we've generally viewed it pretty freaking negatively.

It's not common here because we are astoundingly wealthy and powerful, and most other countries would rather just live with the fact of a Provo cell, or a Posada Carilles, living here, as opposed to pissing us the hell off.

So, lucky us.

But I'd say that assuming that we, as the biggest gorilla in the room, can pretty much do whatever the hell we want is not in our national best interest.

It really does piss people off to have military drones flying over their heads looking for people to blow up. It really does compromise our ability to claim good faith when dealing with other nations. It really does build a reservoir of ill will, and really does undermine our credibility with other people.

These are not trivial things.

The glue that holds things together are the kinds of basic, common agreements that nations and people have with each other to not f*** each other over.

Sometimes it's highly inconvenient to keep that in place. But when it goes away, things are even worse.

Some bad guys get away. It sucks, but it's the reality. The world is full of Al Awlakis, and we're not going to get them all. The best we're going to achieve is preventing them from killing us, to the greatest degree we can.

If we make 100 enemies to kill one, we're not winning. If we give up the fundamental basis of what we're about to kill one, likewise.

Assuming, as I do, especially compelling reasons...

Therein lies the rub. Why should we have to assume? Why is there no burden of proof? That's kind of the whole freakin' point, isn't it?

I'm sorry that I can't restrain myself from writing this but it's like this:

Raise marginal tax rates?!?! Are you crazy?!?!

Kill American citizens in foreign countries without due process? Um, okay...

Therein lies the rub. Why should we have to assume? Why is there no burden of proof? That's kind of the whole freakin' point, isn't it?

Because this is a freakin' war, and when there's an enemy target, nobody needs to prove anything unless, after the fact, someone wants to dispute that the matter fell under the President's authority. Even then, it's usually considered a "political question," which means, "You don't like it? Elect somebody else." That's why we have to be careful who we elect as President. That person has a lot of power. That person makes military decisions based on classified information. It's scary powerful. But it's Constitutional.

If you read the case that Al-Alwaki's father brought to enjoin this action, you can find out something about the legal issues here. (Did you read it? It's cited above.) Once Congress declares war (and the AUMF is a war authorization), the courts pretty much stay out of it.

And, by the way, once Americans start acting as enemies (and proclaiming themselves such) in a situation where a war authorization has been declared by Congress, I don't really get what the problem is. Al-Alwaki certainly knew what the score was. He was okay with it. He was proud of it. He continued propagandizing and recruiting. He didn't make himself available for arrest. I really don't think that the Constitution was meant to be a cat and mouse game. Al-Alwaki had some control here.

Sapient:

Once Congress declares war (and the AUMF is a war authorization), the courts pretty much stay out of it.

Me:

What does "pretty much stay out of it" mean? It looks wrong on its face, since in Hamdi, the Supreme Court compelled the administration to create tribunals. In Hamdan, the Supreme court ruled that the tribunals set up by the Bush administration violated the UCMJ and article 3 of the Geneva Conventions. The Supreme Court did not "stay out of it." The Supreme Court ruled against the administration in both cases. Can you cite some facts which would support your position that the courts "stay out of it?"

Sapient:

He continued propagandizing and recruiting. He didn't make himself available for arrest.

Me (and others upthread):

Arrest for what? The U.S. did not indict An-Al for anything. An-Al had no charge against which he could present a defense. Furthermore, the U.S. refused to allow the ACLU to represent An-Al. An-Al was barred from attempting to present a defense or from having counsel present one for him. You use the term "arrest" but the U.S. made it clear they did not want to arrest An-Al. Putting him on a kill list and announcing that fact meant the U.S. was no longer interested in arrest. I think the term which would be most appropriate is execution. An-Al definitely did not present himself for execution.

Sapient:
Because this is a freakin' war, and when there's an enemy target, nobody needs to prove anything unless, after the fact, someone wants to dispute that the matter fell under the President's authority ... It's scary powerful. But it's Constitutional.

What is your basis for asserting that "it" is Constitutional? What is "it?" It's hard to rebut you when you do not specify.

The due process objection to "war" as a justification for dispensing with due process is that "war" is now defined as indefinite and unlimited.

Sapient, the implication of your argued-for version of the president's authority is that if Obama ordered all Arabs in the U.S. rounded up and put into camps tomorrow, there would be no constitutional challenge available, and we could not even ask Obama why he wanted to do so. Do you see why? Under your proposed model, the determination is his to make, and no review is or should be available.

If I have misstated your position, please tell me what recourse there would be if Obama made the above determination w/r/t arabs in camps.

If you read the case that Al-Alwaki's father brought to enjoin this action, you can find out something about the legal issues here.

What was relevant to this discussion was nothing all that new. AFAICT, the parts that mattered to the larger issue, we've already covered on this thread.

Much of the discussion of the case revolves around the basis upon which Anwar al-Awlaki's father brought the case to court, not about the broad issue at hand. What does revolve around the specifics of targeting Anwar al-Awlaki basically ends up as "we as a court can't tell what's going on, so we can't decide, and it's up to the other branch(es)." I think it's pretty much horseshit.

Even then, it's usually considered a "political question," which means, "You don't like it? Elect somebody else."

That might be the practical result, but it doesn't mean I have to agree with it or like it. A complicit court ruling just means it's going to be harder to check executive power, not that doing so isn't the right thing to do in a supposedly free society.

I think it's pretty much horseshit.

If you go back and read all of the cases that have been brought in the United States about issues involving Presidential war powers, you get about the same answer from the courts. Why? Because that's how the Constitution works in war. You don't really have to like it because it's not up to you. You can invent your own Constitution, but under the Constitution we have, the President has a lot of power when Congress declares war. And the Authorization is tantamount to such a declaration.

Again, talk to your Congressman about it, or work on amending the Constitution. And good luck with that.

Sapient, the implication of your argued-for version of the president's authority is that if Obama ordered all Arabs in the U.S. rounded up and put into camps tomorrow, there would be no constitutional challenge available, and we could not even ask Obama why he wanted to do so. Do you see why? Under your proposed model, the determination is his to make, and no review is or should be available.

That's actually not true, as a matter of fact, for probably a million reasons. For a couple, there are domestic laws that would prevail (including the Posse Comitatus Act). Arabs in the United States would have the right to habeas corpus. In addition, Obama needs money to do things like that and he likely couldn't get it from Congress. And a whole host of other reasons.

Oh, and those poor rights-deprived al-Qaeda folks. They're almost harmless, those "bad actors," that we should just ignore until we can get a proper arrest warrant.

Give me a break.

I argued that your proposed interpretation of the President's power would allow for the internment of Arabs. I specifically did not argue that it would happen. I said that, according to your argument, it could happen and there would be no constitutional remedy. I notice that you chose not dispute that it could happen. You merely argued the practicalities. I assume this means you concede that I am correct in my interpretation of your position on Presidential power to put U.S. citizens into internment camps without review from any other branches of government.

Regarding the practicalities ...

The internment of the Japanese (WP says about 62% of them were U.S. citizens) during World War 2 happened despite the existence of the Posse Comitatus Act. Japanese-Americans were denied their habeas rights. FDR did somehow get the money to do it.

I don't understand why you say that Arabs "would have the right to habeas corpus." You said that the President has the authority under the AUMF to determine without review who is a target. If the President can determine without review that he can have An-Al killed, why can't he determine without review to intern arab-americans?

And the Authorization is tantamount to such a declaration.

That's nice. But I don't think it applies, and the Authorization itself could come under judicial review at some point, if we ever stop wetting our collective selves.

Yeah, I can't really do much about it, though I'm entitled to my opinion (so what?). Your argument seems to boil down to the fact that the government, broadly speaking, gets to interpret the constitution how it likes and act according to that intrepretation, and that finding something wrong with that is a foolish exercise, since you can't go out and start your own government. Goodie!

If you go back and read all of the cases that have been brought in the United States about issues involving Presidential war powers, you get about the same answer from the courts.

Again, that's nice, since we've never gone to war against a tactic before. (Everything really did change on 9/11....)

Because this is a freakin' war

As we know, as soon as someone says "we are at war" we no longer need to use our minds.

This is why I loathe the "War on Terror" framing. It helps shut people's brains off.

...

As has been repeatedly pointed out, we failed to help the UK with the problem of Irish Americans funding the IRA. I'm sure one could dig up other examples. The UK didn't bomb us for two simple reasons: 1) We were more powerful; and 2) we were, despite our differences on that score, allies they felt they needed, so they let it slide with just some complaining.

By the logic you've laid out, Sapient, the UK would have been perfectly justified in launching airstrikes against Boston (and, apparently, you would have applauded this).

That's at least a consistent position. It's NOT the US Government's position, however. Do as we say, not as we do.

Julian: The internment of the Japanese (WP says about 62% of them were U.S. citizens) during World War 2 happened despite the existence of the Posse Comitatus Act. Japanese-Americans were denied their habeas rights. FDR did somehow get the money to do it.

Are you proving my point, that the President has a huge amount of power, so be careful who you vote for? What's your solution?

hairshirthedonist: Your argument seems to boil down to the fact that the government, broadly speaking, gets to interpret the constitution how it likes

And your argument is that hairshirthedonist gets to interpret the constitution as hairshirhedonist likes, and that hairshirt's opinon should be binding on the country?

hairshirthedonist: Again, that's nice, since we've never gone to war against a tactic before.

The AUMF doesn't say anything about a tactic. Read it. Words have meaning.

Russell: My bottom line is that what we do needs to be lawful and proportionate to the threat.

What's lawful is a matter of form; what's proportionate is a question either way.

I mean, the killing of Troy Davis was lawful as all get-out because all the legal formalities were observed, not because it was just or wise.

Was the killing of Osama bin Laden lawful? Viewed as an extra-judicial death penalty for previous crimes, I'd say not. We rightly insist on allowing only the courts, not the elected branches of government, to pass death sentences, and only after a trial. To color it lawful, we'd have to say it was something like the targeted killing of Admiral Yamamoto during WW2: not lawful punishment for masterminding the Pearl Harbor attack, but a legitimate strike against a "high-value target" in a formally declared war. Maybe the AUMF was an adequate formalism to make killing Osama "lawful", or maybe it wasn't. Either way, we're talking about lawfulness in the US; it was still murder under Pakistani law, I imagine. And also either way, it may or may not have been wise, or "proportionate" in the grand scheme of things.

Now, Awlaki. Apparently he was not sentenced to death, not even extra-judicially, for past crimes. He was targeted strictly as an "enemy leader", like Osama was, and Yamamoto was. I mean, that seems to be the entire "legal" justification for killing him.

Again, I imagine that no American legal formalism can possibly make a deliberate homicide in Yemen "lawful" under Yemeni law. Even if we Americans had formally amended our Constitution to explicitly allow our military to kill anybody our president designates as a "member of al-Qaida", thus making the killing of Awlaki as "lawful" as the killing of Troy Davis, it's doubtful that Yemenis would say, "Oh! Alrighty then! Carry on, chaps!"

Lawful AND proportionate is what we would like our government's actions to be. Maybe killing Osama was "proportionate" and killing Awlaki wasn't; maybe both were; maybe neither was. I don't think the parallel statement can be made for "lawful". That is, I cannot see how it could have been lawful to kill Osama but not lawful to kill Awlaki. Either both were killed as lawfully as Troy Davis, or neither was.

--TP

"The Yemeni government began trying [al-Alwaki] in absentia in November 2010, for plotting to kill foreigners and being a member of al-Qaeda, and a Yemenite judge ordered that he be captured "dead or alive".

The link is a cite to UPI, Wikipedia's source.

And your argument is that hairshirthedonist gets to interpret the constitution as hairshirhedonist likes, and that hairshirt's opinon should be binding on the country?

On the first part, of course I can. I can interpret anything as I like, as can you. Whether or not our respective interpretations make any sense or are compelling to anyone else is another question.

On the second, obviously not. Like I wrote before: Yeah, I can't really do much about it, though I'm entitled to my opinion (so what?).

The AUMF doesn't say anything about a tactic. Read it. Words have meaning.

Whether or not it formally is a declaration of war on terrorism really isn't the point. I was being a little cute there. In any case, what previous war would you compare the war against al Qaeda to, particularly given the broad scope of deference to the POTUS (on Battlefield Earth)?

What you can't seem to grasp is that people might actually object to the AUMF itself, or at least aspects of it, so any justification for an act in question that rests on the AUMF is subject to criticism, even if the act was "legal" according ot the AUMF (as interpreted). The Patriot Act allowed for lots of things, too. Were you all-in for that? And do you ever disagree with a court decision, despite that fact that no one has to listen to you as far as the law is concerned?

"Are you proving my point, that the President has a huge amount of power, so be careful who you vote for? What's your solution?"

In this sentence, you efface the difference between power the President "has" in terms of de facto power, versus what s/he should have based on what the power the Constitution will not extend to him or her, the limits to power the President has when working in conjunction with Congress, etc.

Which one did you mean? Did you know that they are different things?

As for internment camps, I brought up the hypo of arabs being interned by the president as a possible consequence of your theory of executive power.

You responded by scoffing that it would not happen because other things would intervene to stop it.

I pointed out that U.S. citizen internment actually has happened before, that none of your cited stopgaps prevented it, and you respond by saying ...

I'm proving your point?

If your point is a descriptive or positive one, i.e. "the president has the de facto power to order the assassination of U.S. citizens without due process of law," among other things, you have been wasting our time. We saw it happen. However, I don't believe that is your point.

If your point is a normative one, i.e. that the president should, if the Constitution is interpreted correctly, have the power to yadda yadda, then the example of Japanese-American internment does absolutely nothing to support you. It merely shows that it has happened, not that it should happen again.

If you think that the internment of U.S. citizens without due process of law should not happen again, how would you plan to stop it, if you assume that the President has the power to do it and that no other branch of government may review his determination? Keep in mind that under your interpretation of executive power, the President can declare any part of the U.S. "battlefield" and any U.S. citizen an "enemy combatant," and then order that person executed without needing to show evidence, probable cause, or any other justification.

Can you tell me why you think the Constitution should be read as granting the President the power to order the assassination of U.S. citizens without due process of law? Keep in mind that Congress and the President acting together does not necessarily guarantee that their actions will be constitutional.

Okay, new post on the al-Awaki/Khan/etc. killings! Said The Red Queen.

Yes, I know it's tl;dr. But notice all the links I didn't quote from! :-)

Argue with me over there now!

Raise marginal tax rates?!?! Are you crazy?!?!

Kill American citizens in foreign countries without due process? Um, okay...

HSH, do you think you might be mis-characterizing my positions a bit? Did I not specify my position on An-a-Al clearly as a very, very limited exception to the general rule? Have you looked at my position on tax increases in our last several discussions, some months ago?

Maybe the AUMF was an adequate formalism to make killing Osama "lawful", or maybe it wasn't.

The AUMF, rightly or wrongly, very clearly authorizes the following:

That 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

Bin Laden very clearly is one of the persons involved.

IMVHO the case is far less clear for Al Awlaki. Association with the folks involved, energetic agreement with their agenda, possible evidence of operational involvement in subsequent efforts, yes yes and yes. But meeting the AUMF bar, very much not clear. Not unless we want to insert some kind of "six degrees of separation" clause.

And the lack of clarity is not helped by the lack of information. I could be wrong, but I can't imagine it would be that hard for the President or one of his spokespersons to make a simple presentation of the case.

And I don't think "proportionality" and "assassination of individuals via via air-to-ground missiles in contexts other than active battlefields" can be made to fit in the same sentence.

That's pretty much where I'm coming from.

Al Awlaki lived by the sword, even if only rhetorically, and that's how he died. I don't take any pleasure in his death, nor do I shed any tears. Karma's a bitch.

I'm just not interested in the US furthering its descent into rogue nationhood.

Because this is a freakin' war, and when there's an enemy target, nobody needs to prove anything unless, after the fact, someone wants to dispute that the matter fell under the President's authority.
This is completely factually wrong.

See here for details.

If you read the case that Al-Alwaki's father brought to enjoin this action, you can find out something about the legal issues here. (Did you read it? It's cited above.)
Yes, and it dismissed the case solely on the grounds that the plaintiffs lacked standing. I quoted the part where the judge wrote on the troubling aspects.
Once Congress declares war (and the AUMF is a war authorization), the courts pretty much stay out of it.
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?
Oh, and those poor rights-deprived al-Qaeda folks.
Cite to people having absolutely nothing whatever to do with al-Awaki.

But let me quote an authority on al Qaeda:

"[It is] easy for us to provoke and bait this administration. All that we have to do is to send two mujahidin to the furthest point east to raise a piece of cloth on which is written al-Qaeda, in order to make the generals race there and cause America to suffer human, economic, and political losses ... This is in addition to our having experience in using guerrilla warfare and the war of attrition to fight tyrannical superpowers, as we, alongside the mujahidin, bled Russia for 10 years, until it went bankrupt and was forced to withdraw in defeat."
-- Osama bin Laden.

Full transcript and context.

And the lack of clarity is not helped by the lack of information. I could be wrong, but I can't imagine it would be that hard for the President or one of his spokespersons to make a simple presentation of the case.

On this, we could hardly agree more. Secrecy is overused, and will destroy us before it destroys our enemies.

And I'm not saying you're wrong about Awlaki being a distinguishable case from Osama. But neither am I totally comfortable with the idea that anybody who became a "member of al-Qaida" after 9/11 is de facto (or do I mean, de jure?) outside the scope of that AUMF. The team's roster may turn over, but it's still the same team. True for baseball teams like "the Red Sox", nations like "the US", or groups like "al-Qaida", IMHO.

The factual question (was Awlaki really a "member of al-Qaida"?) and the policy question (was he a high-enough-value target to be worth the possible blow-back?) are each important, and Obama may have got both answers wrong. It may well be that we will regret ever having given "the President" the power to answer such questions unilaterally.

But "the President", like "the leader of al-Qaida", is a position, not an individual. We still have the possibility, at least in theory, to rescind or modify the authority we granted to "the President" to kill leaders of al-Qaida. In practice, the best we can hope for is that "the President" will continue to be Barack Obama, for he is far likelier than any successor I can think of to declare some day that al-Qaida, the organization behind 9/11, is dead enough that we don't need to keep killing its leaders.

--TP

But "the President", like "the leader of al-Qaida", is a position, not an individual. We still have the possibility, at least in theory, to rescind or modify the authority we granted to "the President" to kill leaders of al-Qaida. In practice, the best we can hope for is that "the President" will continue to be Barack Obama, for he is far likelier than any successor I can think of to declare some day that al-Qaida, the organization behind 9/11, is dead enough that we don't need to keep killing its leaders.

Thank you, TonyP. I can't second, third, infinity that enough.

"In practice, the best we can hope for is that "the President" will continue to be Barack Obama, for he is far likelier than any successor I can think of to declare some day that al-Qaida, the organization behind 9/11, is dead enough that we don't need to keep killing its leaders."


If that's the best we can hope for then why don't we just make him King?

I'm also not sure where this "far likelier" comes from. It's sort of convenient for a President to have the power to order people killed. Why would he want to give it up?

Donald, I suspect you recognize that "the best we can hope for" is a cliche. We can all "hope" for a much better president than Barack Obama the way we can all "hope" for a life after death. Hoping for the next election to turn out one way rather than the other is a different matter.

And the "far likelier" comes from the assumption that Ron Paul will not be Obama's successor. I mean, seriously: can you name anybody other than that old coot who is 1)remotely liable to get elected president in 2012, and 2)more likely than Obama to stop taking pot shots at "high-value targets"?

--TP

")more likely than Obama to stop taking pot shots at "high-value targets"?

I think we're arguing about the relative sizes of infinitesimal quantities.

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