Dissent on Targeted Killings

From the email bin:

Hi John Cole,

I’m a regular reader and I’m writing to say that I think your cut-and-dried posts on international law and the Constitution are really irresponsible.

On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him? How about your argument to rebut the government’s position that, under the Constitution, he has no basis to make a habeas-type argument because he is not being denied access to process, he’s refusing to submit himself to the judicial process in the US? On the state secrets doctrine, why do you neglect to mention the portion of the doctrine that requires an in camera review of evidence by a judge to determine whether what the government says is state secret information really is? What’s your response to the argument that Al-Awlaki’s father doesn’t have standing to bring a case on his son’s behalf because his son is perfectly capable of bringing such a case on his own and has shown no interest in it? Last, do you have a rebuttal to the argument that the case itself presents non-justiciable political questions that are outside of the purview of the courts? Do you believe that the Article III courts should be able to override the authority given to the other two branches in Article I and II for pursuit of foreign policy and military actions? How would you, as a judge, craft an injunction such as the one Al-Awlaki’s father is requesting? How would you enforce it?

I know, you’re not a lawyer, so you don’t care about these “legal technicalities” because you care only about broad moral arguments. Well, you know what? These things that you consider to be “technical” legal arguments are actually important parts of our system and all of them have larger, yes, moral components behind them. There are legions of judges and lawyers, both on the prosecutorial and defense side, that work day in and day out at this stuff and in good faith. These people don’t have the luxury that Greenwald does of arguing to the choir and simply disregarding any arguments that he deems not up to civil liberties snuff. (Has Greenwald ever seen a prosecutor’s argument that he thinks is not evil? You should compare one of his posts on the government’s case in Al-Awlaki to the government briefs. You’ll find he just skips over whole parts of their argument, probably because he has no counter.) They also don’t deserve to have their positions painted as “evil” by you, if you’re not going to make any attempt to understand what is actually going on.

On this stuff, you seem to be firmly in the, “Obama and Holder are war criminals and murderers — because Glenn said so, that’s why!” camp. It’s a shame that so many of your readers seem happy to go along on the “don’t bother me with the facts” train. That’s the irresponsible part of it.

My response is that the government targeting someone for death and refusing to explain why is so broadly offensive to me that I don’t give a shit about the legal arguments. I may be pigheaded and wrong, but that is where I stand.

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343 replies
  1. 1
    BTD says:

    I like this post actually. Yours is akin to a policy dispute.

    I think Awlaki is not the best case for your argument, but as a general point, I think it is a strong argument for changing the policy and attempting to set up a type of review process for such orders.

  2. 2
    jo6pac says:

    I may be pigheaded and wrong, but that is where I stand.

    I standing right next to you on this.

  3. 3
    El Cid says:

    Is there a judicial process re. Al-Awlaki yet? I had read that criminal charges were being considered, but that nothing had been done at the time the assassination plan was announced.

  4. 4
    Just Some Fuckhead says:

    What is amazing is the amount of bullshit that can be brought to bear on what would appear to be a case of simple morality.

  5. 5
    Dave Fud says:

    If he can’t build a moral case for extrajudicial murder, then I don’t see the difference between us and them.

  6. 6
    Church Lady says:

    In other words, you have your fingers in your ears while shouting “I can’t hear you”. Great rebuttal. Not.

  7. 7
    srv says:

    There are legions of judges and lawyers, both on the prosecutorial and defense side, that work day in and day out at this stuff and in good faith.

    That’s what they said about Addington, Bybee and Yoo.

    There is no evidence, whatsoever, that the judicial system or OLC is working on this in good faith. It is a lie.

  8. 8
    My Truth Hurts says:

    I’m standing right there with you John.

  9. 9
    Klaus says:

    What’s your response to the argument that Al-Awlaki’s father doesn’t have standing to bring a case on his son’s behalf because his son is perfectly capable of bringing such a case on his own and has shown no interest in it?

    Eh, maybe al-Awlaki is not too keen to show up in person before a government that wants to kill him. I know I wouldn’t be.

  10. 10

    It is probably unwise to take a position where you don’t give a shit about legal arguments. It is the rule of law that protects us from tyranny.

    On the other hand, it would be good if the government would offer some explanation of whether it intends to apprehend or outright terminate this man. If they were to assure the American people that this person is going to be arrested and subjected to due process, I would feel better.

    Now, I totally agree with you that hiding things under “national secrets” really doesn’t look good and really doesn’t feel good, either.

    Take another pain pill and look at the situation again.

  11. 11
    BTD says:

    @Church Lady:

    That’s pretty unfair. Cole is saying he is not making a legal argument but rather a moral and policy argument.

    That seems to me to be a reasonable position to take.

  12. 12
    JPL says:

    @srv: There is no evidence, whatsoever, that the judicial system or OLC is working on this in good faith. It is a lie.
    I don’t know if it’s a lie because I don’t know what the evidence is.

  13. 13
    gex says:

    So somehow, there is no room in the rule of law for the government to have to prove their case or be held accountable for their decision to classify someone to be targeted to kill. I’m sympathetic to this point, but isn’t the general rule that special cases make bad case law? This one just may be so cut and dried that it bolsters the arguments being made. And when the government turns this on left-leaning groups in this country, as they always tend to do, what then? Well, we decided how to handle this based on a very extreme case.

  14. 14
    BTD says:

    @Linda Featheringill:

    I’m in the strange position of defending an argument I do not agree with.

    There are more facets to policy than whether it is legal or not.

    The Iraq War was legal (maybe not under international law,but under US law), but it was the stupidest policy of the last 50 years at least. It was also immoral imo.

    I think this Awlaki issue is not an easy one – even though I think the policy is legal and not immoral. It is not obviously wise policy,but I am not sure that there is a more prudent policy available.

  15. 15
    Allison W. says:

    Well, at least you were mature enough to publish the e-mail.

  16. 16
    Alice says:

    This is obviously an example of my unrealistic hippie idealism, but are there seriously people who identify as liberal/progressive that think it’s a-OK for us to target American citizens for death without any kind of due process or accountability?

  17. 17
    Mnemosyne says:

    @El Cid:

    As I said in one of the myriad threads below, I’m assuming that part of the problem is the insane chaos that Bush left everything in when he left office, so they’re still scrambling to assemble the evidence into something that would convince a judge to hand down an indictment.

    Not that it’s an excuse. If they want the guy, they should have indicted him before announcing that they were planning to “capture or kill” him.

  18. 18
    fasteddie9318 says:

    @BTD:

    That’s pretty unfair.

    Wingnut Church Lady unfair? That’s unpossible!

  19. 19
    Mnemosyne says:

    @Alice:

    As far as I can tell from the other threads, the argument is that it would be legal to assassinate al-Alawaki under the AUMF, and that we could/should do it because he’s working for our enemy. I disagree, but I am not a lawyer.

  20. 20
    Germane Jackson says:

    Newsflash: things can be simultaneously legal and immoral. Or moral and illegal.

  21. 21
    Tsulagi says:

    the government targeting someone for death and refusing to explain why is so broadly offensive to me that I don’t give a shit about the legal arguments.

    You must hate America. I’d say you must also be Jane Hamsher’s battle buddy, but apparently she disowned you earlier.

  22. 22
    JC says:

    It is the ‘refusing to explain why’ that’s the kicker. Call it review, call it oversight, call it what you want – but if if you don’t have a way to review/dissect, even after the fact, that the Executive has made a call to exterminate a citizen – that is uncceptable.

    At any rate, before this gets bogged down in screeds on both sides, there were some good suggestions on the prior thread –

    a. Change AUMF
    b. Give court oversight of these type of actions, to some federal court.
    c. the executive has to ASSEMBLE a case, in some manner, that isn’t laughable.

    Any other suggestions on ways to proclaiming that a U.S. citizen has committed treason, other than talking crap about his country, as the only proof?

  23. 23
    KCinDC says:

    @Alice, you seem to be saying that all people who identify as liberal/progressive must be pacifists.

  24. 24
    Jim, Foolish Literalist says:

    So what’s the alternative? And that’s a question, not a taunt.
    Can the Supreme Court meet in special, closed session to review the evidence, then issue a warrant? Can the President as CiC issue a military arrest warrant? is there such a thing? would it be legal? I think it would be putting legalistic lipstick on the pig of assassination, “wanted dead or alive”.
    I’m with JC, this just sticks in my moral craw.

  25. 25
    Omnes Omnibus says:

    @BTD: I feel your pain on this one. I would even go so far as to say that targeting al-Awlaki is probably legal but that I have real reservations about the morality. Otherwise, you have largely summed up where I stand.

  26. 26
    fasteddie9318 says:

    @KCinDC:

    you seem to be saying that all people who identify as liberal/progressive must be pacifists.

    Uh, that doesn’t seem at all like what she’s saying, unless pacifists are the only people left who care about “due process or accountability.” There was no absolute rejection of violence there.

  27. 27
    Alice says:

    @Mnemosyne:

    I think that people who are arguing that it’s all good because it’s legal under AUMF are missing the forest for the trees in a pretty significant way.

    I could go on a rant now, but you seem like a nice person and there’s no need to preach to the choir at this hour.

  28. 28
    KCinDC says:

    because he is not being denied access to process, he’s refusing to submit himself to the judicial process in the US

    Shocking that he wouldn’t want to submit himself to a “judicial process” in which people are held without charge for years and subjected to torture.

  29. 29
    Irony Abounds says:

    Where is the morality in either just throwing up your hands and saying “what are we to do” or perhaps expending the lives of many men and women in attempts to “arrest” this guy. Initially this case was presented as the US government simply deciding someone might be dangerous and having them killed without any judicial intervention and against international law. Now, when presented with a rather cogent argument that shows those concerns were unmerited or at the minimum not clear cut at all, you just say you don’t like targeted killings without explanations. Well, as shown in the email, there are explanations, just not ones that you are privy to. I have grave concerns about civil liberties in this country, but in this case I am not ready to declare that we are acting immorally or illegally.

  30. 30
    Belafon (formerly anonevent) says:

    We all know exactly how we would act if we were president. I know what I would do: Go gray headed in 4 years from having to make decisions like this.

  31. 31
    Anton Sirius says:

    …the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him?

    Because there’s absolutely no difference between those two options, and they should be treated identically.

    Straw man fail.

  32. 32
    Nick says:

    @Linda Featheringill:

    On the other hand, it would be good if the government would offer some explanation of whether it intends to apprehend or outright terminate this man.

    Sure, but does it need to? I mean are people really going to be up in arms about a Muslim man who is accused of working with terrorists in a far away land with a name that sounds like it’s a terrorist country?

  33. 33
    JC says:

    and, may I say, that days like today, while engulfed in bitter screeds and frack you’s, I must say, also always seems to contain some of the funniest comments in the thread. Something about frustration, also brings out the humor.

    Not sure why cursing people out, and bringing the funny, are so closely related, but there it is.

    so, I’m entertained. And since it’s all about me, I’ll all good. :)

  34. 34
    kindness says:

    The person writing you is evil.

    Yea, that’s republicans answer and liberals shouldn’t use it. Well, he/she is evil. Doesn’t mean I think it would justify Obama calling out a hit squad on the person. I don’t think it would.

  35. 35
    General Stuck says:

    I may be pigheaded and wrong, but that is where I stand.

    That’s cool, at least it’s without the spittled hyperbole and based on personal conviction, not law or imposed morality on the rest of us.

    This smacks of the Stalin or the Ton Ton Macoute

    Or Obama worse than Bush on this, since Bush already killed an American in Yemen, and likely others buried beneath layers of secrecy. Obama came right out and put it in writing for the world to see. And hopefully, we can put to rest, at least, the alleged illegality of the finding itself, and it looks like the presnit is moving toward filing charges, which is a good thing imo, though not required since Alwaki has publicly declared himself aligned with the enemy and is in their presence on foreign soil.

    WASHINGTON — The Obama administration is considering filing criminal charges against Anwar al-Awlaki, the radical cleric thought to have been involved with the plot to blow up a Detroit-bound airliner last Christmas.

    Shortly after that failed attack, the White House authorized the CIA to kill or capture al-Awlaki. He is living in a mountainous region of Yemen, sheltered by his family and religious leaders.

    The White House is preparing for the possibility that al-Awlaki is captured alive. Officials, speaking on condition of anonymity to discuss the deliberations, say a decision on criminal charges is expected in the next several weeks.
    The cleric has become al-Qaida’s leading English-speaking voice for recruiting and motivating terrorists.

  36. 36
    Bobby Thomson says:

    Oooh. Some low-level DOJ lawyer just got his fee fees hurt. Tough titties.

    He uses an awful lot of words to defend the policy without ever actually defending the policy.

    My rule of thumb: If something can’t be explained in a paragraph that is reasonably comprehensible to a reasonably attentive eighth grader, it’s generally a crock of shit. There are rare exceptions, but by and large it’s served me well.

  37. 37
    Belafon (formerly anonevent) says:

    @KCinDC: Do you really think he is sitting over there sweating “I would turn myself in, but they might torture me?”

  38. 38
    SteveinSC says:

    Slightly off topic but Huffpo has the story of the Stryker Schutz Staffel Team. The story echos in so many directions: The guy telling all is named Morlock, the AP (aka, Bodyguard of Lies) is shitting on him from the git-go “he’s on meds…”, and his hometown, Lady Sarah’s Wasilla. It’s impossible for that many cosmic paths to cross at the same time!

  39. 39
    TooManyJens says:

    @Irony Abounds:

    Well, as shown in the email, there are explanations, just not ones that you are privy to.

    That’s not really all that comforting. Sometimes we’re not privy to explanations because they’re total bullshit.

  40. 40
    Anton Sirius says:

    @Irony Abounds:

    Where is the morality in either just throwing up your hands and saying “what are we to do” or perhaps expending the lives of many men and women in attempts to “arrest” this guy.

    Exactly! Why arrest anybody, ever? Why risk the lives of the brave men and women on our police forces in an effort to “apprehend” criminals, when we could just shoot them instead?

  41. 41
    Alwhite says:

    “Obama and Holder are war criminals and murderers—because Glenn said so, that’s why!” camp.

    No, they are war criminals because they are violating the internationally accepted rules of modern warfare & I believe John, and many others, ave documented how quite clearly. Now you may believe that it is OK in this case because the target is a “bad guy” but that means you accept it whenever someone gets labeled as a “bad guy”. Many people would prefer to err on the side of civil and moral rights & not just accept the label put on people by others who may have another motive.

    Many “bad guys” are sentenced to death not because they are guilty of the crime that gets them the sentence but because they do not get a good hearing because they have not always always been “good guys”.

  42. 42
    JC says:

    I mean are people really going to be up in arms about a Muslim man who is accused of working with terrorists in a far away land with a name that sounds like it’s a terrorist country?

    People in Florida seem to think that burning the U.S. flag should get you executed, while burning the Koran is an act of patriotism.

    So your answer is no.

  43. 43
    Belafon (formerly anonevent) says:

    @Anton Sirius: Actually, in this case “either capturing or killing” is one condition, not two. But if you want to split them apart, the government has argued that their priority is capture.

  44. 44
    KCinDC says:

    @fasteddie9318, what “due process and accountability” is there when people are being killed in war? The argument is that al-Awlaki is an enemy military leader. If that’s what he is, then such people are killed without due process in wars all the time.

  45. 45
    Joe Beese says:

    are there seriously people who identify as liberal/progressive that think it’s a-OK for us to target American citizens for death without any kind of due process or accountability?

    Yes. They’re called “Obama supporters”.

    Fortunately, there are a lot less of them than there used to be.

  46. 46
    me says:

    @KCinDC: No, but I, at least, would like to think that most of them would be against summary execution.

  47. 47
    BTD says:

    @Belafon (formerly anonevent):

    It is a killer job if you have a brain or a conscience.

    It’s no surprise that the only person who did not age 25 years in 8 was W.

  48. 48
    Nick says:

    @Alwhite:

    No, they are war criminals because they are violating the internationally accepted rules of modern warfare

    Actually, in this case, they’re technically not, depending on how you look at it.

  49. 49
    paradox says:

    All I would say at this point is that it’s just another bullet point of something that’s gone seriously wrong. I’m so tired of due process just being abandoned, and things were supposed to change here.

    We were supposed to be having fun. We were supposed to have a bright future to look forward to. Oy, this is not what I expected at all.

  50. 50
    El Tiburon says:

    What our government is doing is disgusting, I also find it somewhat laughable that there is such moral outrage over this issue while the mass slaughter of civilians via drones and otherwise Is met with somewhat of a muted response.

    We kill innocents every single day without cause or a warrant or due process. But that it is an American our ordinance is aimed at is somehow a game-changer.

    Those of you who have not already exceeded your moral outrage capacity, then I fear it will never happen.

    We are a blood-thirsty, war-loving nation that gets off to seeing bombs explodes and foreign people die. Otherwise we would not be letting those President get a pass simply because he is not a Republican. If George W. Bush was a war criminal, then so is Obama. And we are all complicit.

  51. 51
    JR says:

    Quite simply, if a detailed and technical analysis of the Constitution leads someone to conclude that the President may be granted a general warrant to serve as judge, jury and executioner of an American citizen, either the analyst is very wrong or we need to seriously reconsider how we allocate war powers in this country.

    Perhaps what makes America truly exceptional is our historical willingness to blithely empower men with guns to do as they wish, pretending all along that there’s nothing remotely objectionable about it.

  52. 52
    Anton Sirius says:

    @Belafon (formerly anonevent):

    That completely misses the point. Capture shouldn’t be the “priority”, it should be the sole objective.

  53. 53
    Belafon (formerly anonevent) says:

    @Joe Beese: I’m sorry, I missed the part where John Cole was supporting this as an Obama supporter.

    On a larger note, I personally have trouble with cops having the right to kill. No one should ever kill anyone else. Yet I grant cops this power to preserve order so that hopefully it will not happen. If we’re going to sit here and argue the rights to having to make shit choices then it will never go anywhere anyway.

  54. 54
    scav says:

    @KCinDC: well, there’s on the battlefield conditions and there’s the whole, well, let’s just shoot all the prisoners of war whenever we damn well feel like it conditions. Exact context matters. Or are you really suggesting we just hold enemy leaders until, whoops!, we need the ratings or morale boost during sweeps week? I don’t think you really mean that.

  55. 55
    Mike M says:

    You can make a legal argument for almost anything – just as John Yoo. Anybody who thinks this doesn’t violate the letter and spirit of the Constitution, the whole reason this sorry mess of a country even exists, is willfully blind. Obfuscate and rationalize all you want, this is WRONG.

    I’ll say it again – FUCK the mewling pathetic whiny authoritarian apologists. You’re weak and this country would be much better off without you.

  56. 56
    wengler says:

    There is no provision of the Constitution that gives power to the executive to execute US citizens without due process of law.

    However on the legal points, we are at war with an indeterminate number of people in some sort of shadowy organization for an indeterminate amount of time, so blast away!

    On the count that everything is legal under US law, the US government has signed and ratified any number of international agreements regarding both the conduct of war and the Nuremberg Principles which is a fundamental pillar of the United Nations. I fail to see which part of any of these laws addresses the power of the President of the United States of America to designate any individual for assassination.

  57. 57
    Irony Abounds says:

    @Anton Sirius:

    Bullshit answer. This isn’t some petty criminal hiding out somewhere. Exactly how do you suggest the US undertake this guy’s arrest? Just how many innocent lives would that take? And of course if it were attempted and there were innocent lives lost you’d probably be shouting about how terrible it was that those innocent lives were lost. Apparently admitted terrorists who are able to pluck themselves down in some hellhole are untouchable.

    Again, this isn’t just Obama or some other person simply deciding on a hit. There are legal procedures that have to be followed.

  58. 58
    Belafon (formerly anonevent) says:

    @Anton Sirius: And a cop should never have to shoot someone, but sometimes it is required.

    ETA: I will see this situation as gray because I do think in this case he has been acting against the US.

  59. 59
    srv says:

    @General Stuck:

    thought to have been involved

    Oh, that’s good enough for me. Don’t understand why that isn’t enough for everyone else.

    At some point, after all the lies we’ve been told for generations, perhaps a policy of extraordinary claims require extraordinary evidence should be considered unradical.

  60. 60
    Alice says:

    @KCinDC:

    I definitely was not saying that. A healthy respect for due process and accountability is hardly exclusive to pacifists.

  61. 61
    Omnes Omnibus says:

    @Anton Sirius: Like with law enforcement?

  62. 62
    patrick II says:

    You are pig-headed, you are not wrong.

    How exactly do you define “imminent” in imminent threat? And who decides and who reviews that decision?

    Legalists can always use language to justify amoral positions. I know for most of us imminent is pretty close to immediate, as in someone has a gun pointed at you and you must act now or die. Has Al-Alawki hi-jacked a plane and pointing it to a skyscraper? By all means, shoot it down. Other than that, how soon is immediate? A week? A month? A year? What if he is not a threat at all himself, but stirs emotions in others — where does he cross the line? Who decides based on what evidence?

    I would prefer some acts remain illegal, even if occasionally necessary. A jury could make judgement about exigent circumstances. Obama’s attempt to put every executive act under a legal umbrella is more dangerous than being the occasional outlaw.

  63. 63
    General Stuck says:

    @wengler: While there are conditions set in the international laws of war, the bottom line does not excuse a citizen of this country or that for when someone chooses to join one side of the other in a violent conflict. Mr. Alwlaki has made his choice, and it is on the other side from his country’s. He bought that ticket all by himself, and simple truth of what war is, is one group of people trying to kill another group, there are some rules of conduct, but you cannot get past that basic truth.

  64. 64
    FlipYrWhig says:

    My response is that the government targeting someone for death and refusing to explain why is so broadly offensive to me that I don’t give a shit about the legal arguments.

    I guess my question is, “refusing to explain why” to whom? I haven’t followed this whole thing very closely, but I thought that someone in the executive branch was “explaining why” to somebody, but it wasn’t at all public. So is it really “refusing to explain why” or “refusing to explain why in some sort of public or semi-public, reviewable proceeding”? In other words, the fight was (in part) over how public and procedural the explanation needed to be.

    Or is the allegation here that the “targeting someone for death” part is analogous to the “warrantless wiretapping” issue, in that what’s being cut out is ANY review, even a rubber-stamp-ish one? Is the “targeting” based on secret evidence secretly shared, or no evidence never shared?

  65. 65
    JPL says:

    When I first read the news article, I was outraged. Thanks for posting the rebuttal because it does add another element.

  66. 66
    Nick says:

    @El Tiburon:

    If George W. Bush was a war criminal, then so is Obama. And we are all complicit.

    Which goes back to my 2007 argument on why impeachment was a bad idea…is there a President who ISN’T technically a war criminal?

  67. 67
    KCinDC says:

    @Belafon (formerly anonevent), I don’t know. If I were afraid that the US government might kill me at any moment, I might think about turning myself in to avoid, if I were going to be treated like a normal prisoner. If I thought I’d be held for years without charge and tortured, then I certainly wouldn’t.

  68. 68
    burnspbesq says:

    @Church Lady:

    In other words, you have your fingers in your ears while shouting “I can’t hear you”. Great rebuttal. Not.

    Wrong-o, dearie. I fully understand where John is coming from. What John is in effect saying is that if the law permits this sort of moral atrocity, then the law is an ass. I don’t fully agree with him, but I find his argument to be coherent and consistent with his position on a variety of similar issues.

    If you don’t get it, try harder next time.

  69. 69
    srv says:

    Did anyone else see the CBS show Blue Bloods? Tom Selleck as police captain, daughter as bleeding heart civil-rights DA, and son as Wounded-Iraq-vet-cum-torture-Detective?

    Tom referred to torture as “enhanced interrogation” and rattled off the ticking-time-bomb scenario.

    I guess they’re trying to take over that 24 slot.

  70. 70
    Bloix says:

    “The Christmas bombing?” How did I miss that? Oh- you mean the Christmas non-bombing, the guy who tried to set fire to his underpants. Scary stuff. It must have required a real mastermind to plan that one.

  71. 71
    mcmillan says:

    On the state secrets doctrine, why do you neglect to mention the portion of the doctrine that requires an in camera review of evidence by a judge to determine whether what the government says is state secret information really is?

    I’m not sure if it’s true of the Al-Awlaki case, but in other cases involving state secrets the Obama administration has argued that they don’t even need to do that, just saying it’s a state secret is enough to dismiss the entire case. There’s some references to it in this case.

    That’s what’s really bothering me about this stuff, that the position being taken seems to be “trust us, we’ll only do this to the bad guys” and they don’t have to show why they decided these are the people it applies to.

  72. 72
    paradox says:

    I have written repeatedly on the dangers of drones and the disastrous state of war we engage in both Afghanistan and Pakistan. I’m simply exhausted at the heinously wrong shit we do for no good reason, just in these 2 areas alone.

    I’ve given Obama and his goons the fingers for months, and I am politically disconsolate. I would not call that complicity.

    I blog as an essayist with an rss feed, I’m not talking comments.

  73. 73
    Martin says:

    @Alice: Wait, a lot of us are saying that it’s LEGAL under AUMF. Legal is a FAR cry from good.

    The original assertion was that Obama was breaking the law here. I don’t think he is. I don’t think he’s doing good, however.

    Personally, in cases like this where there are legitimate state secrets involved in the evidence, I don’t see a problem with taking the case before one of the other two branches – either to a court like FISA or to Congress directly. It’s not such a regular occasion that bugging Congress over it should be a problem.

  74. 74
    Paula says:

    I’m agreeing with the sentiment that you should either shit or get off the pot. If this is the last straw for [hypothetical] You, then don’t vote for Democrats this year, or in 2012. But if you really care about this issue, then you shouldn’t give political parties that endorse this behavior the right of expecting your vote. It’s pretty simple, if you want to look at it in pure moral terms.

    I really don’t see why this has to turn into a 400-comment flame war about GG. (That being said, one of the biggest failures of GG as an institution is that he has the power to make it all about him rather than the issue.)

  75. 75
    Joe Beese says:

    @Nick:

    is there a President who ISN’T technically a war criminal?

    William Henry Harrison.

  76. 76
    Omnes Omnibus says:

    @mcmillan: What a party argues in court and what the court accepts as an argument are not necessarily the same thing.

  77. 77
    burnspbesq says:

    @Bobby Thomson:

    My rule of thumb: If something can’t be explained in a paragraph that is reasonably comprehensible to a reasonably attentive eighth grader, it’s generally a crock of shit. There are rare exceptions, but by and large it’s served me well.

    Ahh, the PowerPoint approach to life. ‘Scuse me while I vomit.

    Sorry, your rule of thumb has served you quite badly. Nuance, ambiguity, and gray areas are completely lost on you.

    Some things can’t be reduced to four bullet points. The issues in this case are among those things.

  78. 78
    Joel says:

    @General Stuck: I’m around here on this issue. This case with Al-Awaki is pretty murky and that disturbs me, but there is something to be said for US citizens who declare war against their own country. This was, essentially, what the confederates did, and that caused them to justifiably lose the rights and protections that US citizens enjoyed. That said, the codes and mores of international law still apply.

  79. 79
    Antonius says:

    I, for one, welcome our pigheaded wrong overlords.

  80. 80
    KCinDC says:

    @me, there are a hell of lot of people in Afghanistan and Iraq who’ve been “summarily executed”. And no one even knew their names to target them, or tried to capture them before killing them. Yet somehow that’s fine and the al-Awlaki situation is a blasphemous new outrage.

  81. 81
    Bloix says:

    The government’s position is this:
    We can kill anyone we want if that person poses an imminent threat.
    And we don’t have to tell you how we know that person is an imminent threat, because our evidence is a state secret.
    Just trust us.

    I have no problem with the government killing someone who is within seconds of pressing a lever that will blow up an airplane. I am very troubled about the idea of the government killing someone who does nothing but make empassioned speeches.

    I don’t doubt that Awlaki falls somewhere in between. Where in between? We don’t know because we’re not allowed to see any evidence. We’re just treated to leaked statements from anonymous sources.

    And one thing we know for sure is that when the government is made exempt from disclosure, the government is not trustworthy. It always lies. Even if the facts are favorable, the government tweaks them to make them even better.

    That’s my problem with this. The goverment wants the right to kill anyone, any time, without any explanation. “Trust us” is no way to run a democracy.

  82. 82
    burnspbesq says:

    @El Tiburon:

    We are a blood-thirsty, war-loving nation that gets off to seeing bombs explodes and foreign people die.

    Speak for yourself. You don’t speak for me.

  83. 83
    FlipYrWhig says:

    @Paula:

    It’s pretty simple, if you want to look at it in pure moral terms.

    It is? Even if a party does very many other decent things that immediately impact your life and the lives of those around you, in “pure moral terms” you have to withhold your vote over this one very bad thing? I don’t think most people view morality, or politics, that way. Or, wait, maybe that was your point. I’m confused.

  84. 84
    El Cid says:

    @Mnemosyne:

    If they want the guy, they should have indicted him before announcing that they were planning to “capture or kill” him.

    I was just wondering what was meant by “judicial process” when it was mentioned in the dissenting note.

    And isn’t it often the case that prosecutors can often bring indictments upon smaller issues in order to compel a suspect to turn himself in or be captured, in order to not spoil the preparation of indictments on more serious charges?

  85. 85
    slag says:

    @wengler:

    However on the legal points, we are at war with an indeterminate number of people in some sort of shadowy organization for an indeterminate amount of time, so blast away!

    This is my biggest gripe about these escalating power grabs on the part of the Executive Branch. I’m a big believer in checks and balances/bureaucracy/inefficiency/whatever you want to call it. Especially in matters of import to real people, matters such as whether they live or die. I’m such a believer in these things that if I were to write an essay about What Liberalism Means to Me, it would probably be all about this topic.

    We have three branches of government. I really wish they all worked.

  86. 86
    General Stuck says:

    @Omnes Omnibus:

    You’re the lawyer guy, but the SS privilege is an evidentiary rule, I think. That simply involves allowance of the government to with hold certain evidence completely, and then the court determines if there is sufficient evidence to support a plaintiffs complaint on what evidence is left.

    I don’t believe “in camera” review by a judge has ever, or very often been the procedure. Of course, I guess judges can do what they want. But it is up to them, if they choose to require that review on the merits of the government’s with held evidence.

    So part of the problem is the court’s are the ones letting this be an all or nothing affair. And like I said the other day, this all or nothing element of the SS priv. sucks big time, and I suspect Obama is in part pushing these cases to the supremes to set some standards, or have leg pending get passed.

  87. 87
    Omnes Omnibus says:

    @Joe Beese: I bet his troops did something bad near Tippecanoe either before or after the battle that would qualify.

  88. 88
    Omnes Omnibus says:

    @Joe Beese: I bet his troops did something bad near Tippecanoe either before or after the battle that would qualify.

  89. 89
    Martin says:

    @Bloix: So what you’re saying is that if someone snuck a nuke into the US but it failed to go off, no biggie?

    I think intention counts for rather a lot here.

  90. 90
    jl says:

    This is my favorite part:

    ‘ These things that you consider to be “technical” legal arguments are actually important parts of our system and all of them have larger, yes, moral components behind them. ‘

    So, we are the lawless ones, ignoring the import of these secret unknown moral components (so therefore I guess we are also apparently the immoral ones) that along with the legal arguments, cannot be revealed otherwise we will all (supposedly, for the reasons for this are secret too) die die die!

    My understanding is that the US has not charged the guy with anything.

    If that is the case, I may be pigheaded, but this is just a case of the government authorizing the assassination of a US citizen it doesn’t like.

    The US can file charges and make a case, then there might be a basis for discussions of what to do. Until then, this is just a policy of lawless government assassination, and very evil.

    Edit: and I do not care a whit how many secret undisclosed people they get to review this in secret undisclosed locations with secret information.

  91. 91
    FlipYrWhig says:

    @Bloix:

    The government’s position is this:
    We can kill anyone we want if that person poses an imminent threat.
    And we don’t have to tell you how we know that person is an imminent threat, because our evidence is a state secret.
    Just trust us.

    Um, isn’t this kind of like saying that the alternative is “We can’t kill a deadly terrorist because his rights are too important to violate, and no matter how many people die in the process of trying to bring him to account, that’s just the price of justice”? Because that’s similarly cut-and-dried and polemical… and kind of useless except as a cudgel. I don’t see that it helps to act like there aren’t some difficult aspects to figuring out how to handle a case like this.

  92. 92
    El Cid says:

    I think that this subject should be more often discussed as it would be if the particular suspect were not known than phrasing it in exact terms of what Al-Awlaki has done, where he is, and such details.

    Because that’s what is involved unless it’s the judicial parallel of a bill of attainder, right? Wouldn’t this either establish or represent a general rule on what types of people may be targeted for assassination under what circumstances or simply under the general authority of a President who says so?

  93. 93
    Jay B. says:

    These things that you consider to be “technical” legal arguments are actually important parts of our system and all of them have larger, yes, moral components behind them.

    All technical legal arguments have moral components behind them? That’s hilarious.

    There are legions of judges and lawyers, both on the prosecutorial and defense side, that work day in and day out at this stuff and in good faith.

    And there are an equal number, if not more, who don’t. But then again, the letter writer has obviously been in a coma since 1968.

  94. 94
    Paula says:

    @Omnes Omnibus:

    I think his leadership in the so-called Indian Wars pretty much means that he’s going to be guilty of some heinous shit.

  95. 95
    jl says:

    @FlipYrWhig: What case? We have to take it on faith there even is a case, because it is all secret.

  96. 96
    Omnes Omnibus says:

    @General Stuck: Courts can and, in my opinion, should require more than a simple assertion that State Secrets applies. An in camera review of the evidence or source of the evidence is one method.

  97. 97
    Nick says:

    @Joe Beese: Maybe not while he was President, but he was a general in a war.

  98. 98
    Just Some Fuckhead says:

    Can we have assassinations confirmed in the Senate with a 60 vote majority? That should put this one to bed.

  99. 99
    Nick says:

    @burnspbesq:

    Speak for yourself. You don’t speak for me.

    Or most of us, but we’re not the mainstream of America on this.

  100. 100
    El Cid says:

    @jl: If you’re talking a legal case i.e. a criminal case, I don’t think anyone has really claimed that anyone had any particular case before the assassination commitment was announced.

  101. 101
    Redshift says:

    @Martin: Intention counts, but it cannot stand on its own if not accompanied by actual capability. Otherwise it quickly leads to wingnut territory of insisting the threat we must contort ourselves to respond to is what terrorist groups say they want to do to us, rather than what they are actually capable of.

  102. 102
    burnspbesq says:

    @Bloix:

    Scary stuff. It must have required a real mastermind to plan that one

    Your comment displays a fair amount of ignorance of fundamental principles of criminal law, even though you did use the key word, “plan.”

    A conspiracy doesn’t have to achieve its goals to be a crime.

    The publicly available evidence suggests that this guy can be convicted of conspiracy to commit murder, either in connection with the Christmas Day bombing attempt or the Fort Bliss shootings or both. My preference would be to present evidence to grand juries, and if they indict him for either or both, then go arrest him and bring him back for trial. If he resists arrest and is killed in the course of resisting arrest, well, shit happens.

    I am every bit as queasy as John about targeting people for assassination with no meaningful oversight, even if I think that the ACLU’s lawsuit is a piece of crap that won’t survive a motion to dismiss. There is something about the complete lack of accountability that is fundamentally at odds with our notions of who we are as a people and a country.

  103. 103
    General Stuck says:

    @Omnes Omnibus:

    agreed

  104. 104
    Paula says:

    @FlipYrWhig:

    Well, it’s a choice that one makes, hopefully as informed as possible, right?

    At the end of the day, you can’t tell anyone how they should vote. It can be debated, but about 4 years and five million flame wars later you can’t keep repeating the same arguments.

    And it’s not a “circular firing squad” if you let people go @ this point. There has to be acceptance that there might just be a fundamental difference of ideals and that yours (and theirs) might be better served if people dropped the illusion that we all have the same goals.

  105. 105
  106. 106
    Brighton says:

    1. On Al-Awlaki, the WH stated on 9-24-10 categorically that
    “There is no doubt AQAP is a serious threat to Yemen, the United States, and our allies,” citing the christmas underwear bomber, as well as AQAP attacks in Yemen and Saudi Arabia. “The United States has also designated AQAP and its leaders as terrorists domestically and through the United Nations in order to prevent their travel and restrict their access to the international financial system.”
    I think John’s reticence to accept such conclusory statements is justifiable in light of past misinformation about “terrorist” organizations. My reading of the PATRIOT Act led me to the conclusion that participation in the planning and/or commission of just about any crime makes one a terrorist. Where in the US Code is that term defined precisely? Maybe you can tell me.
    2. I think John’s larger concern, perhaps inartfully presented, is that any mechanism that allows the US and UN to label a group as terrorists is frightening, in a Dachau-kinda way. Criminal charges can only be brought on probable cause. Is it unfair to ask which crime the individual did or threatened to do? Targeting a citizen based on his status as the member of a named group seems antithetical to due process.
    3. I don’t think that John, or any of us, will have any problem with the capture of this guy if he indeed plotted to kill Americans. To say that one man is planning to “attack” the US strains credulity and smacks of hyperbole. The Christmas bombing would have been a tragedy, but hardly an attack on the nation.
    3.5 BTW, is this the guy we already caught once and released as a political favor to the Saudis?
    4. I think what John and others fear is the creation of a vague clandestine system of quasi-criminal detentions and executions in the name of fighting an undefined threat – terrorism. The prior administration did an incredibly lousy job of building trust in this area.
    5. IMHO the habeas action is just an attempt to test the constitutionality of the “targeted killing of citizens” apparatus – you certainly know a lot more about this than me, but it seemed to be a legal artifice to get the issue before a federal judge. Certainly there is no ‘body’ to deliver out of ‘custody’ as in a traditional habeas action. This guy and his dad are grasping at straws on the standing issue.
    6. You are right about in camera inspections, nobody in the media ever mentions that. What John is concerned about, I think, is the past abuse of state secrets and attempted expansion of executive power. The whole FISA flip flop thing was pretty disappointing.
    7. As a citizen, I would prefer a system wherein there was some manner of judicial check on non-wartime violence against citizens. I am not convinced that “terrorism” is military or foreign policy territory. The target here is not acting on behalf of Yemen or any other country, and we are not at war with Yemen. A sane argument can be made that we are talking about crimes, not acts of war. Congress has not declared war, and neither has the President really. I’d rather have a disinterested court decide where the line is drawn between political/military action and law enforcement. If it is ruled criminal and not military, then each citizen is entitled to the full panoply of civil rights you and I enjoy. Full stop. It appears that several detainees in Guantanamo labeled ‘enemy combatants’ were wrongfully targeted, so I wouldn’t put it past the politicians and generals to screw it up again. They tend to be overzealous in this area.
    8. As far as enforcement of an injunction against the executive branch, who knows how or whether it would be enforceable. Again I think the point was to try and define who’s watching the watchmen, if you will. I think the Supreme Court should address the interplay of criminal procedure and national security initiatives that permit members of certain groups to be targeted, surveilled and attacked. If the nature of war has changed, so be it, but lets create safeguards against abuse of these new “war powers” by ambitious executives.

  107. 107
    me says:

    @KCinDC: We should, but you aren’t dumb enough to believe that there isn’t a difference between someone killed in battle and someone executed, right?

  108. 108
    FlipYrWhig says:

    @jl: Well, now you’re getting to the heart of the whole topic of how to pursue “sensitive” national-security matters, and I have no idea about that, because it’s fucking hard to figure out how to balance the rights of the accused to due process with the need for secrecy, and I’m sure lawyers and law students twist themselves in knots trying to figure it all out. Mostly my point is that acting like it’s obvious and simple and no right-thinking person could ever see it otherwise tends to fall apart under the pressure of actual examples rather than from ranting about first principles that must never be betrayed.

  109. 109
    Dr. Squid says:

    Shorter email guy: Only lawyers should have opinions.

  110. 110
    Redshift says:

    @patrick II:

    I would prefer some acts remain illegal, even if occasionally necessary. A jury could make judgment about exigent circumstances. Obama’s attempt to put every executive act under a legal umbrella is more dangerous than being the occasional outlaw.

    This.

    Just as with the “ticking time bomb” scenario, there are responses which, even if they are deemed necessary in specific circumstances, can cause great damage if they are established as policy, because actions that are made policy nearly always expand beyond those exceptional circumstances.

  111. 111
    Anonymous At Work says:

    On the state secrets doctrine, why do you neglect to mention the portion of the doctrine that requires an in camera review of evidence by a judge to determine whether what the government says is state secret information really is?

    Under the State Secrets doctrine, judges are not permitted “in camera” review of the evidence to be withheld; no one is allowed to review the evidence because it is considered “too sensitive”. That’s the biggest argument against the legal theory.
    The case history is even more questionable because the government in the case basically used the doctrine to avoid admitting fault in a lawsuit that claimed that the government was at fault for a fatal air crash. The States Secrets doctrine was used to prevent legal liability and embarassment rather than legitimate super-secret classified information (note: for regular everday classified information, in camera reviews and/or other measures are used).

  112. 112
    libarbarian says:

    A conspiracy doesn’t have to achieve its goals to be a crime.

    What? You mean I can’t plan to murder someone, buy the gun, give it to the gunman, help him get into a position to shoot and then get away scott-free if he misses the shot?

  113. 113
    soonergrunt says:

    @Germane Jackson: Such is often the dilemma faced by military personnel on the battlefield.

  114. 114
    j low says:

    It’s so hard for me to understand people who aren’t terrified by the thought that our government thinks itself capable of carrying out death sentences without judicial review and public scrutiny, because “we are good people, and we only kill bad guys”. It’s fucking sick. This whole fucking country is mentally ill.

  115. 115
    libarbarian says:

    The Christmas bombing would have been a tragedy, but hardly an attack on the nation.

    How do you define an “attack on a nation”?

  116. 116
    Martin says:

    @slag:

    This is my biggest gripe about these escalating power grabs on the part of the Executive Branch…
    We have three branches of government. I really wish they all worked.

    They do. Congress granted the power to the executive in 2001 and 2002. Congress can revoke that power. Is there any movement on the left trying to get the AUMF repealed or amended? I don’t see it.

    There’s no power grab here. This is working exactly as intended. Unfortunate as that may be, and nobody seems to be worked up enough about it to put pressure on Congress to change things.

  117. 117
    jl says:

    @FlipYrWhig: I guess we disagree. I think it is obvious that some kind of due process under the US Constitution is required. A public case, a grand jury, something. Senate passes a declaration of war on the individual. Something. Presidents say so based on a secret case based on secret evidence is not enough for me.

    If that makes me simple minded, then so be it.

  118. 118
    libarbarian says:

    Just as with the “ticking time bomb” scenario, there are responses which, even if they are deemed necessary in specific circumstances, can cause great damage if they are established as policy, because actions that are made policy nearly always expand beyond those exceptional circumstances.

    BINGO!!!

    I don’t want a policy of torture or assassination … but there definitely are circumstances under which I would torture and assassinate.

  119. 119
    Xboxershorts says:

    @Dr. Squid:

    Shorter email guy: Only lawyers emailer approves of should have opinions.

    fixed for accuracy

    If emailer douchebag wants a harsh opinion of the current administration, he should read some Arthur Silber of Chris Floyd.

    Asshole needs to understand, his shit stinks as bad or worse as anyone else who supports the death of American freedoms and liberties.

    Irresponsible? Blow me asshole.

  120. 120
    J.W. Hamner says:

    I think it’s a pretty terrible idea to go through with an assasination policy, but to my non-lawyer brain the arguments that it is illegal have not seemed very convincing.

    I feel like the real enemy here… that is really underrepresented in Greenwald’s rantings on the subject… is the AUMF. It seems like liberals/progressives should really be trying to organize a campaign to change or end it, but all I ever get is crickets when I bring it up.

  121. 121
    AlanDean says:

    Stand right with you, John. This sort of stuff only comes from a “Unitary Executive” who can only go through life getting everything his way. Not from a real President. I am deeply saddened to hear that current Prez. is defending the same path. Revolting. It takes someone like John Yoo, may his soul never sleep, to say there are legal reasons this is even remotely OK or even something to discuss.

  122. 122
    Martin says:

    @Redshift: Well, I’m going to dispute the capacity here. They had capacity enough to get someone on a flight with explosives who was willing to suicide himself in the act of setting them off. That a hell of a lot of capacity, even if the bomb was a shitty design.

    IMO, the easiest part of the whole operation is the only part they fucked up.

  123. 123
    futzinfarb says:

    but that is where I stand.

    And I stand with you! Ummm, OK, maybe a little to one side.

  124. 124
    burnspbesq says:

    @Anonymous At Work:

    Under the State Secrets doctrine, judges are not permitted “in camera” review of the evidence to be withheld; no one is allowed to review the evidence because it is considered “too sensitive”. That’s the biggest argument against the legal theory.

    All due respect, I think you need to go back and re-read the Ninth Circuit opinion in Mohamed. I don’t have a copy handy, but I clearly remember it saying that in camera review is an option in an appropriate case. There were at least two classified submissions, and the court said over and over again that it had carefully reviewed the classified submissions and found them persuasive.

  125. 125
    Paula says:

    @J.W. Hamner: It seems like they think it’s a separate issue. Why, I really don’t know.

  126. 126
    Martin says:

    I would also point out that while I would normally think an assassination policy as a bad idea, circumstances seem to be forcing it. Call it an unintended consequence of our military capacity, but enemies have always adapted to circumstances. Our advantage is standing armies and traditional warfare. They’re skipping right past that. There’s no military response to Al Qaeda whatsoever.

    Taking a law enforcement response is a reasonable alternative, but law enforcement efforts assume that rational deterrence is an effective strategy. Not so much with suicide bombers. If you don’t need to plan an exit strategy, a lot of law enforcement tactics are rendered completely ineffective.

    I’m not saying that an assassination policy should be eagerly sought, but it seems like we’ve got some problems that lack good solutions. When there are no good solutions, that only leaves bad ones.

  127. 127
    Elie says:

    @BTD:

    There are more facets to policy than whether it is legal or not.

    The Iraq War was legal (maybe not under international law,but under US law), but it was the stupidest policy of the last 50 years at least. It was also immoral imo.

    I think this Awlaki issue is not an easy one – even though I think the policy is legal and not immoral. It is not obviously wise policy,but I am not sure that there is a more prudent policy available.

    This. With humility and awareness of our limits

  128. 128
    John O says:

    I suppose the part of me that figures none of it matters anyway in the end wants the guy dead, just for (as best I can tell) being a dick, but that doesn’t seem right, so I say he only gets a death warrant with PUBLIC and highly credible review.

    A man should have a right to publicly refute evidence against him, period, full stop, also. And especially too.

    At my age, there really isn’t any rational thing left to do but batten down the hatches.

  129. 129
    burnspbesq says:

    @libarbarian:

    What? You mean I can’t plan to murder someone, buy the gun, give it to the gunman, help him get into a position to shoot and then get away scott-free if he misses the shot?

    I assume you’re snarking, but maybe not. I am not your lawyer, and I am not giving you legal advice, but …

    If you really want to get away scot-free, you’d better kill your incompetent hired gun, because if he testifies that you and he entered into an agreement, you’re going down. When the crime is conspiracy, the agreement is the bad act.

    I assume you’re snarking, but maybe not.

  130. 130
    FlipYrWhig says:

    @jl: Like I said, IANAL, but it seems to me that if it was as easy as that there wouldn’t be a “state secrets privilege” at all.

  131. 131
    kay says:

    @Dr. Squid:

    Shorter email guy: Only lawyers should have opinions.

    Well, no. Cole or you or anyone else may discuss the policy, or the morality, or the politics.
    But you can’t really go on and on about reverence for the rule of law without knowing what the law is, or looking at the arguments on both sides.
    You may disagree with it, but there it is. The Rule of Law.
    I think that was the emailer’s point.
    I think he/she made an excellent point on separation of powers that eviscerates the “rogue executive” nonsense.

  132. 132
    Xboxershorts says:

    @Xboxershorts:

    Consider this, The executive branch can designate ANYONE a terrorist or (and this is key) a terrorist enabler and supporter, and not be held to any standard of proof for that charge.

    And throw in the recent FBI raids on anti-war protesters and the governments rhetoric about that? Damn, they’re ALMOST like terrorists in Pittsburgh.

    How you feel about assassinations now?

    It could never happen right? People thought Kent State could never happen either.

  133. 133
    John O says:

    @Xboxershorts:

    This. Is how Power behaves.

  134. 134
    El Tiburon says:

    @burnspbesq: @Nick:

    Or most of us, but we’re not the mainstream of America on this.

    Exactly. As a nation (excluding most everyone here) we love a good war. It is a primetime event “shock and awe y’all”.

    We love war movies and war history. We love tanks and aircraft carriers and missiles and jets. Our biggest industry is defense.

    So yeah, we love war. We love the smell of napalm in the morning, afternoon and night. Maybe not at dusk, but the rest of the time.

  135. 135
    FlipYrWhig says:

    @Martin: The basic thing for me is that it sounds like the “assassination” “order,” whatever the specifics, sounds horrendous and is very easy to characterize as an atrocity. But coming up with the ethically acceptable way to handle this sort of thing — suspected terrorist who is an American citizen and who is holed up in a foreign country — is a bitch. Because the first thing you think of is, well, why not just knock down his fucking door and bring him in? And the second thing you think of is, um, what if that meant a lot of good people would end up dead in the attempt? I don’t know how to balance all of those elements. Sounds like a hell of a thing. It’s easier to play the “better a thousand guilty men go free” card when you don’t really have to live with the consequences.

  136. 136
    Omnes Omnibus says:

    @kay: In addition, when discussing the legality of an action, lawyers might have more to add than members of other professions. [Note: I am speaking about issues of legality, not morality or advisability.] By the same token, if we were discussing open heart surgery, a medical doctor would probably have more to add to the conversation than a lawyer or member of any other profession. Repeat with plumber, welder, programmer, farmer, etc..

  137. 137
    Omnes Omnibus says:

    @kay: In addition, when discussing the legality of an action, lawyers might have more to add than members of other professions. [Note: I am speaking about issues of legality, not morality or advisability.] By the same token, if we were discussing open heart surgery, a medical doctor would probably have more to add to the conversation than a lawyer or member of any other profession. Repeat with plumber, welder, programmer, farmer, etc..

  138. 138
    BH says:

    The emailer’s argument falls apart in his first sentence when he states “because he’s been designated by the US and the UN as an ‘active operational member of AQAP’”. The whole point of this entire exercise is that the government needs to prove to a court that he has violated the law. Step one would be to actually charge him with something.

    If your entire argument assumes the conclusion, that means you’ve got nothing. This happens in every discussion of Guantanamo in which virtually everyone calls the detainees “terrorists” and the “worst of the worst.” We have a court system to judge the validity of the government’s evidence. If you bypass that system, then you are no different than a kidnapper who claims that what he is doing is justified because he says so.

  139. 139
    burnspbesq says:

    @El Tiburon:

    Exactly. As a nation (excluding most everyone here) we love a good war. It is a primetime event “shock and awe y’all”.

    Wait – I thought the NFL and NASCAR were supposed to slake the bloodlust of the great unwashed. Guess I was misinformed.

  140. 140
    Mnemosyne says:

    @Joe Beese:

    Shoulda clicked on the link to read about the Battle of Tippecanoe. Scalping the bodies of your dead opponents and burning down their village probably counts as a war crime these days.

  141. 141
    joe from Lowell says:

    @BH:

    The whole point of this entire exercise is that the government needs to prove to a court that he has violated the law.

    He isn’t being charged with a crime.

    No more than Admiral Yamamoto was charged with a crime.

    We’re at war with the organization he belongs to.

  142. 142
    FlipYrWhig says:

    @Xboxershorts: Come on. You can play the same games on the other side: “Oh, so you’re such a purist you’d rather not use everything in your power to stop the terrorist; what if he helped a henchman blow up a plane and your mom was on it, huh?” It’s cheap.

  143. 143
    joe from Lowell says:

    My response is that the government targeting someone for death and refusing to explain why is so broadly offensive to me that I don’t give a shit about the legal arguments. I may be pigheaded and wrong, but that is where I stand.

    Let me get this straight: you’re ok with us bombing an entire al-Qaeda training camp, but if we pick them off one at a time, that’s wrong?

    That’s nonsense.

  144. 144
    FlipYrWhig says:

    @BH:

    The emailer’s argument falls apart in his first sentence when he states “because he’s been designated by the US and the UN as an ‘active operational member of AQAP’”. The whole point of this entire exercise is that the government needs to prove to a court that he has violated the law. Step one would be to actually charge him with something.

    You’re right, I don’t know what’s involved in such “designating.” What does it take? I’m assuming it requires some kind of proof at some point, but that it’s not proof that has to be publicly presented or made available to be contested. Is that wrong?

  145. 145
    joe from Lowell says:

    I wonder: did the individual case files the government submitted for each al Qaeda member killed at Tora Bora meet your standards of evidence?

    Oh, wait. That didn’t happen. In fact, that’s completely nonsensical.

    So, what’s up with the “one at a time” standard?

  146. 146
    FlipYrWhig says:

    @joe from Lowell: I think it’s a “battlefield” standard rather than a “one at a time” standard. But I’m still not sure that if, say, Lindh had been shot and killed in Afghanistan, it would have prompted a lot of soul-searching about a lack of due process for an American citizen.

  147. 147
    kay says:

    @Omnes Omnibus:

    I have nothing to add. I haven’t read the briefs or the law, so I don’t weigh in. I wouldn’t. I don’t know one thing about this area of law. It would take me weeks. You know how you start with one issue and the next thing you know you’re deep in the weeds.
    So (some) lawyers are in that sense more constricted than non-lawyers. I’m not comfortable arguing state secrets or law of war without a shit load of reading, reading I’m not wiling to do, I admit.
    I did enjoy reading the emailer’s legal points, though.
    Good rebuttal!
    I was a little disappointed in Cole’s response, if I may say so. I feel as if he’s not putting the effort in. Maybe it’s his dental problems :)

  148. 148
    newhavenguy says:

    I can’t even say I am “disappointed” by the Obama Admin’s record on this stuff, as appalling as I find this (and other positions in re: GWOT, detention, surveillance, etc.)

    Perhaps I’m missing something, but it seems that the power of the Executive branch has been steadily evolving in one direction for a long time, aside from a brief post-Watergate hiccup.

    Did any of us really expect this Admin to be the first ever to renounce and roll back powers assumed by its predecessor? Shit, do you think President Nader or Hamsher would? Hell no, they’d waterboard Rahm at Gitmo… or whack him with a Predator.

    That said, I don’t like it one bit. Not much to do about it, though, given that the Courts have been stacked from top to bottom with little Scalitos for the last 30 years.

    The only way I see to change that in the foreseeable future is to elect (1) more and (2) better Democrats. Sorry to bring it to that, but its ON now. Maybe the likes of Rand Paul and Sharron Angle have a more principled approach to these issues…Christ, sorry, I can’t even type that one with a straight face.

  149. 149
    Patrick Meighan says:

    “We’re at war with the organization he belongs to.”

    In what specific court of law did the U.S. government prove that this particular U.S. citizen (who, apparently, resides far from any battlefield) belongs to the organization with whom we are “at war”?

    Patrick Meighan
    Culver City, CA

  150. 150
    Omnes Omnibus says:

    @kay: Your position makes sense.

  151. 151
    Omnes Omnibus says:

    @kay: Your position makes sense.

  152. 152
    joe from Lowell says:

    @FlipYrWhig:

    I think it’s a “battlefield” standard rather than a “one at a time” standard.

    We bombed targets hundreds of miles behind enemy lines during World War 2. Barracks, oil depots, ball-bearing factories…lots of people died in those raids, but they were unquestionably legal.

    The British even organized an assassination mission against Hitler, only calling it off when they realized that his sheer incompetence and delusion was a huge military asset for the Allies, and killing him would mean the German military would become much more effectively commanded. It would have been perfectly legal to shoot him in the head at the Eagle’s Nest.

    Perhaps not “sporting,” but I don’t recall that being a constitutional mandate.

    The only questions here are whether our military, through its highest-ranking officer, can identify an enemy commander as a target. Of course they can – and once you accept that enemy commanders are, as a class, a legitimate military target, then they don’t have to prove anything to you or anyone else about this particular target’s value. It’s their call.

  153. 153
    joe from Lowell says:

    @newhavenguy:

    Did any of us really expect this Admin to be the first ever to renounce and roll back powers assumed by its predecessor?

    I did, and they have.

    George Bush asserted that he could order military action against targets, all on his own, based on the inherent power of the president as commander in chief of the armed forces.

    Upon ascending to office, Barack Obama renounced that doctrine, arguing that the president could only order military actions against targets if Congress invoked its power to declare war, and then, only against those that Congress had declared war on. That’s why the brief contains all of that language about AQAP being a part of al Qaeda – because he only has this power if al-Alawki is a member of the organization Congress declared war on in the September 2001 AUMF.

  154. 154
    BH says:

    @joe from Lowell:

    Can you cite the section of the Constitution or any international laws that provide this power? How about a declaration of war against Afghanistan, Pakistan, or Yemen? Links please.

    Also, are you OK if Canada starts firing missiles at someone located in the United States who belongs to a group that Canada has ambiguously designated in some equivalent of the AUMF? How about China or Russia?

  155. 155
    wengler says:

    @GeneralStuck

    How many divisions does Mr. Awlaki have? Is our country so weak that we can’t capture anybody anymore? And then try them?

    Has everyone gone insane?

  156. 156
    KCinDC says:

    @Xboxershorts, the phrase “War on Terrorism” is a figure of speech. There’s no AUMF that applies to anyone designated a terrorist. They have to be (claimed to be) connected to a group that is our enemy. So if the government starts saying environmental groups are part of Al Qaeda (and if those groups are in countries outside the reach of US law), then the situation would be more parallel.

  157. 157
    Karmakin says:

    Joe’s right. There’s really no moral or legal difference between bombing a “terrorist training camp” and what’s going on here. Now, maybe you want to make the argument that outside of direct battlefield engagement, the military shouldn’t be involved in “combating” terrorism. I think that’s an important argument, although I think it’s also a political loser. (Which isn’t an attack on the people making the argument, it’s an attack on a culture/society)

    But until a year and a half ago NOBODY was making that argument, at least not anybody of any real importance (and I’m including bloggers as having real importance..because I think we do). In fact it was the opposite. People on the left were advocating for less big army action and more small army intelligence type action in terms of fighting terrorism.

    This is what small army intelligence type action looks like. Like it or not, this is what most of us asked for.

  158. 158
    joe from Lowell says:

    @BH: I sure can.
    Happy to oblige.

    And yes, and AUMF has the legal and constitutional force of a declaration of war. This was litigated decades ago, when the War Powers Act’s authorization of AUMF’s was challenged in the federal courts, and lost.

    Also, are you OK if Canada starts firing missiles at someone located in the United States who belongs to a group that Canada has ambiguously designated in some equivalent of the AUMF?

    I would have a big problem. We would have the right to make war against them – but there is nothing ambiguous about the AUMF’s designation.

  159. 159
    mattt says:

    Sorry, I don’t get this one.

    Hypothetical:

    A US citizen becomes infatuated with National Socialism and makes his way to Germany, c.1942. He fights in Russia and Italy with the German army and is killed in 1944 when US bombers deliberately target the German headquarters where he is serving as a Captain in the Wermacht.

    Does anybody lose any sleep because he is still formally a US citizen? Was judicial review necessary?

    If there are differences between this case and Awlaki’s……is Awlaki’s case more like my hypothetical, or more like the typical domestic criminal for which constitutional protections were designed?

  160. 160

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

    Seems pretty straightforward enough to me.

    If the guy is an active combatant in a war zone, he’s fair game.

    Even if he happens to be collateral damage because he’s hanging out with the wrong crowd, that’s even slightly more justifiable.

    Otherwise, unless he’s been convicted of treason or a capital offense, this seems an awful lot like an extra-judicial killing and assassination. The type we used to condemn when other countries did it.

  161. 161
    joe from Lowell says:

    @wengler:

    How many divisions does Mr. Awlaki have? Is our country so weak that we can’t capture anybody anymore?

    He’s behind enemy lines, well out of our reach. If we could capture him, we absolutely should, and would.

    There are several hundred people in an American infantry battalion. How many would you consider worth losing to capture an al Qaeda commander instead of killing him?

  162. 162
    maus says:

    @Church Lady:

    In other words, you have your fingers in your ears while shouting “I can’t hear you”. Great rebuttal. Not.

    The masturbatory obsession with Rule of law is but one of many reasons why I’m not a conservative.

    If you don’t understand what the problem is here, you missed the fucking point again.

  163. 163
    joe from Lowell says:

    @Comrade Dread:

    No person shall be held to answer for a capital, or otherwise infamous crime

    He isn’t being charged with a crime, any more than a private in the Kaiser’s army was charged with a crime. Or a mechanic on a Luftwaffe base outside of Munich.

    If the guy is an active combatant in a war zone, he’s fair game.

    Or if he’s a combatant or commander of a military force with whom we’re at war, regardless of how safely behind the lines he’s located.

  164. 164
    joe from Lowell says:

    Tell you what, somebody finish this sentence:

    An al Qaeda commander is not like an SS commander because…

    we already know the answer is not “because we’re not at war with al Qaeda.” Yes, we are.

    So, why are we not allowed to target enemy commanders in this war?

    Or, alternately, where do the courts or various bloggers get the authority to sign off on the military’s determination of who is a commander in this enemy’s army?

  165. 165
    Ruckus says:

    Questions I don’t see asked very often.
    Should there be state secrets?
    I don’t see how a state could exist in a somewhat hostile world, even if some of that hostility is reasonable without some secrets.
    How many people need to know and understand something before it can be considered something that needs to be secret?
    How many people need to see those secrets before it is no longer can remain secret? Are there any review processes for things becoming and remaining secret? How secret are these processes?
    All that said this is a situation that just feels wrong. I don’t believe in the death penalty but even past that I don’t think the state should have the right to kill someone outside of due process. Due process can not take place in secret. That’s why the Gitmo trials were/are a farce. That’s why indefinite confinement is wrong. I’m not talking about legal. Anything can be made legal. The Iraq war was legal. And 100% wrong.
    In a country with it’s basic premise to be life, liberty and pursuit of happiness, how can someone’s life be at the whim of unknown government forces?

  166. 166
    Ruckus says:

    @joe from Lowell:
    That SS commander wore a uniform. He was in a war zone. The 2 countries had declared war against each other. And we tried to capture the enemy if at all possible because they are more useful alive than dead.
    And we are not at war with Al Qaeda. If you think so show me the declarations of war. We declared war on a country, Iraq. With no know ties to Al Qaeda.

  167. 167
    El Cid says:

    This discussion could also include other nations’ right to target declared enemies in any other nation.

    Clearly Cuba had full right to assassinate Southern Florida-based terrorists who had repeatedly attacked their territories, but since the US supported those terrorist efforts [i.e., harboring such terrorist groups as Alpha 66], but doing so would have had catastrophic results on Cuba itself.

    Likewise, the Sandinistas clearly should have targeted people like Elliot Abrams for assassination, because they were directing terrorists to attack a legitimate and recognized government.

    And clearly, Palestinian militants would have the authority if possible to assassinate Israeli leaders carrying out such actions as the slaughter of Gazans and destruction of their infrastructure.

    It just doesn’t seem like a generalized standard which many would respect other nations to have, because it’s more comfortable to discuss with regard to the US pursuing Al Qa’ida or WWII enemies.

  168. 168
    ChrisNYC says:

    @mcmillan: In the opinion you link to, the court specifically said it reviewed the information that was allegedly state secrets.

    We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets, “which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10. The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests. In fact, every judge who has reviewed the government’s formal, classified claim of privilege in this case agrees that in this sense the claim of privilege is proper, although we have different views as to the scope of the privilege and its impact on plaintiffs’ case.

  169. 169
    Patrick Meighan says:

    I’m not John Cole, but if he won’t provide direct responses to the questions, I will.

    “On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him?”

    My response is that neither the UN nor the executive branch of the US has the right to unilaterally designate an American citizen to be a member of an organization such that his/her Constitutionally-granted rights are legally forfeit, particularly when that American citizen is far from any battlefield.

    “How about your argument to rebut the government’s position that, under the Constitution, he has no basis to make a habeas-type argument because he is not being denied access to process, he’s refusing to submit himself to the judicial process in the US?”

    My argument is that this US citizen is not (as of now) “refusing” to submit himself to the judicial process in the US, because in fact no judicial charges have been brought against him, and as such there *is* no judicial process to which he can submit himself.

    “On the state secrets doctrine, why do you neglect to mention the portion of the doctrine that requires an in camera review of evidence by a judge to determine whether what the government says is state secret information really is?”

    Consider it now mentioned. How does that, in any way, impact the Constitutional legality of the executive’s claim to the right to unilaterally declare a U.S. citizen to be a member of a proscribed organization (on the basis of “secret” evidence it refuses to share with the accused, or with the judiciary) and to then execute that U.S. citizen without charge or trial, far from any battlefield?

    “What’s your response to the argument that Al-Awlaki’s father doesn’t have standing to bring a case on his son’s behalf because his son is perfectly capable of bringing such a case on his own and has shown no interest in it?”

    My response is that the U.S. citizen in question, in effect, lacks the functional capability to bring a case on his own behalf, given the government’s declared intent to murder that U.S. citizen on sight, without trial. I’d also respond by noting that some anonymous internet commentator’s independent assessment of the level of interest a US citizen’s has in exercising his own Constitutional rights is completely irrelevant to whether or not those rights are retained by that US citizen.

    “Last, do you have a rebuttal to the argument that the case itself presents non-justiciable political questions that are outside of the purview of the courts?”

    In order to rebut the claim that some unspecified “non-justiciable political questions” override a US citizen’s constitutional right to life and liberty in the absence of charges, a trial and a conviction, I’d need to see those questions particularly specified.

    “Do you believe that the Article III courts should be able to override the authority given to the other two branches in Article I and II for pursuit of foreign policy and military actions?”

    When it comes to the constitutional guarantees of life and liberty for a U.S. citizen residing far from any battlefield, then yes, without question. Otherwise *any* US citizen *anywhere* in the world (no matter how far from any battlefield) may be unilaterally declared (by the executive) to be a member of a proscribed group with-whom-we-are-at-war and executed without trial or charge, rendering every civilian constitutional protection utterly meaningless.

    “How would you, as a judge, craft an injunction such as the one Al-Awlaki’s father is requesting?”

    I would enjoin the US government from murdering (without charge or trial) any US citizen not residing on a battlefield.

    “How would you enforce it?”

    If my injunction were violated, I would hold the government in contempt, in addition to the specific official(s)/individual(s) who violated the injunction, and I would issue a warrant for his/her/their arrest(s).

    “There are legions of judges and lawyers, both on the prosecutorial and defense side, that work day in and day out at this stuff and in good faith.”

    As was said above, the same was said about James Bybee and John Yoo. Truthfully, I don’t give a fig about your good faith, or lack therof. Just don’t violate the fundamental constitutional rights of US citizens. Don’t do it out of good faith. Don’t do it out of bad faith. Just don’t do it.

    Patrick Meighan
    Culver City, CA

  170. 170
    Patrick Meighan says:

    “Tell you what, somebody finish this sentence:
    An al Qaeda commander is not like an SS commander because…”

    Tell you what, Joe, you finish *this* sentence:

    The US citizen in question was proven to be an al Qaeda commander in the following court of law…

    Patrick Meighan
    Culver City, CA

  171. 171
    joe from Lowell says:

    @Ruckus:

    That SS commander wore a uniform.

    So?

    He was in a war zone.

    Not always. I’ve provided example after example of legally-targeted German military who were hundreds of miles from the war zone.

    The 2 countries had declared war against each other. And we are not at war with Al Qaeda. If you think so show me the declarations of war.

    We are certainly at war with al Qaeda. And, al Qaeda is certainly at war with us.

    And we tried to capture the enemy if at all possible because they are more useful alive than dead.

    And the order Obama gave was a capture-or-kill order. Of course we’d capture this guy if we got the chance, just like we captured Khalid Sheik Mohammed, and just like we captured German pilots every chance we got. However, he’s hundreds of miles behind enemy lines, in a remote part of Yemen, protected by al Qaeda forces, Yemeni rebels, and tribesmen.

  172. 172
    srv says:

    @Patrick Meighan:

    far from any battlefield?

    The battlefield is Earth. The whole thing. Except maybe Antartica and the red states.

    Otherwise, kudos.

  173. 173
    slag says:

    @Martin: That’s a good point. My point was and always is that Congress is far too content with ceding power to Executive. I got unduly excited at one point recently when there was some chatter about the House (ie, Nancy Pelosi) trying to re-exert some restraint on the Executive. Of course, it was all talk, but I so wanted it to happen.

  174. 174
    Ruckus says:

    The government is not asking/telling about this one case, they are arguing about being able to kill anyone, anywhere without due process. They are trying to make the process for determining who to kill a state secret. That means at some point anyone, anywhere could be a target. If the people in charge were assholes like darth chaney and they don’t like you, there would be nothing to stop them. Nothing. No fancy rule of law. No declarations of war necessary. You think good people wouldn’t do this? BS. Good people can rationalize their actions just like assholes can. How do you think people become assholes?

  175. 175
    JWL says:

    A person can also be pigheaded and right.

    For decades I invariably voted democratic, but finally turned my back on the party when Obama announced his support for the FISA legislation of June 2008. It was the final straw.

    At this point, about the only hope I entertain about that party is that an insurrection occurs within its ranks.

  176. 176
    joe from Lowell says:

    @El Cid:

    El Cid,

    I don’t know if any of the countries you mentioned have actually declared war. Certainly Cuba never declared war on us or on any right-wing Cuban groups, and the Sandinistas never declared war on us.

    Perhaps the Palestinians have. Anyway, they can all commit acts of war upon their enemies, and any nation aggrieved by their actions can make war right back at them.

  177. 177
    Egypt Steve says:

    The answer to the objections is right there in the following weasle-words:

    he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him

    1. So what if he’s been “designated” a terrorist? I demand that, before guilt is found, then proof be submitted in open court, with the accused having full opportunity to defend himself.

    2. Where is this “if and only if” coming from? I’ve never heard it stated as such in any other discussion of this issue and I’ll bet a month’s pay that that the circumstances under which the execution can be carried out are all considered “state secrets.”

    3. Imminent threat: as in, the smoking mushroom cloud of Iraq? Sucker.

    4. Evidence he was involved in something? Again, what evidence? If you want to execute him, submit it openly and permit full rebuttal.

    5. In-camera review: Courts have historically been extremely deferential, if not entirely subservient, to the Executive on this issue, and at best, the “review” is made without any opportunity for the targeted individual to mount a defense. Close to meaningless, if not entirely so.

    Here is the bottom line question. If the Executive can “designate” Al-Alawki a terrorist and order his termination, and refuse to disclose to anyone their reasons for doing so, and if the courts agree that this Executive decision is un-reviewable, then what legal principle prevents a president from “designating” anyone at all, at his whim, a “terrorist” and marking him for death? “Good faith” is not an answer. What law prevents it? And if there is such a law, who will enforce it if the courts buy Obama’s “State Secrets” argument?

  178. 178
    El Cid says:

    @srv: Battlefield Earth?

  179. 179
    joe from Lowell says:

    @Patrick Meighan:

    The US citizen in question was proven to be an al Qaeda commander in the following court of law…

    The military does not have to prove anything in any court of law to target the enemy in war.

    If you wish to show me any indictments brought against privates in the Kaiser’s army, I’ll be happy to review them.

  180. 180
    FlipYrWhig says:

    @Patrick Meighan:

    I would enjoin the US government from murdering (without charge or trial) any US citizen not residing on a battlefield.

    Right, but what do you do to bring the guy in, and how do you feel if a whole bunch of soldiers and/or spies get killed in the process? Because the “Just don’t do it” credo feels very satisfying, right up until the point where you try to figure out what you _do_ do instead.

  181. 181
    joe from Lowell says:

    @Ruckus:

    they are arguing about being able to kill anyone, anywhere without due process….No declarations of war necessary.

    False, and false.

  182. 182

    1. Politicians are professional liars (they even lie us into war), but we should trust them.

    2. Politicians don’t want court surveillance of themselves, but they want unfettered surveillance of citizens.

    3. Politicians want the right to kill citizens without a court conviction.

    What’s the problem?

    Oh, and Obama is a good guy, and you should be afraid of the GOP, and you should be enthusiastic about voting for the Dems.

  183. 183
    General Stuck says:

    I am all for vigorous debate on this matter, but so long as basic facts are recognized by both sides. Such as the false claim we are not at war with AQ and they with us. The Aumf was congress invoking it’s war powers, period. OBL issued a Fatwa as early as 1998 or 96 declaring AQ at war with the us. The Un has confirmed our right to fight AQ and defend ourselves, wherever they are found. and they are found in Yemen with Mr. Alwlaki and he with them, by his own choice.

  184. 184
    srv says:

    @El Cid: Now if they said a sequel was being filmed in Yemen, I would not have any problem suspending the Constitution for that.

  185. 185
    joe from Lowell says:

    @Egypt Steve:

    1. So what if he’s been “designated” a terrorist? I demand that, before guilt is found, then proof be submitted in open court, with the accused having full opportunity to defend himself…4. Evidence he was involved in something? Again, what evidence? If you want to execute him, submit it openly and permit full rebuttal.

    Since when has the military every had to prove anything whatsoever to anyone’s satisfaction whatsoever about a target it designated during wartime, beyond the military chain of command itself?

  186. 186
    Xboxershorts says:

    blah, I can’t believe this passes as change

  187. 187
    Patrick Meighan says:

    The two questions Joe from Lowell refuses to answer, no matter how many times he’s asked, in no matter how many public fora:

    1) What can legally stop President Obama from declaring *any* overseas American citizen to be a member of al Qaeda (on the basis of “secret” evidence that he refuses to produce) and then killing that American citizen far from any battlefield (including in bed, as he or she sleeps, in the dead of night)?

    2) If the answer is “nothing”, are you comfortable with future Republican presidents retaining the power to summarily execute any overseas American citizen without trial, on the basis of that Republican president’s unreviewable declaration that said US citizen is a member of al Qaeda?

    And an equally relevant third question for Joe from Lowell…

    3) If the only thing legally protecting any domestically-located US citizen from extra-judicial execution as an al Qaeda operative (on the basis of the executive’s own unreviewable assertion) is the fact that President Obama’s current order (apparently) happens to apply only beyond US borders, then what legally prevents President Obama from amending his order tomorrow and including any domestically-located US citizen as fair game for summary execution as an al Qaeda operative, as per the AUMF?

    Patrick Meighan
    Culver City, CA

  188. 188
    Douglas says:

    The amount of people here who seem to be indifferent about due process is… surprising. And rather disappointing.

    Yes, arresting him and affording him due process will endanger the forces used to arrest him as well as civilians (as it might take longer, and he might recruit more terrorists during that time). And yes, it still unequivocally the right choice.

    The right to due process – that the president or whoever can’t simply decide that you’re to be killed or thrown in jail indefinitely, on his say-so and secret info noone has a right to see; but instead have to be charged in a court of law, with an hopefully impartial judiciary judging whether those charges are justified – is an essential part of democracy and the the constitution of the united states of america.
    If *that* part of the constitution isn’t worth defending, what is?

    Also, to the jokers who’ll go “oh no, we can’t do anything else we might hurt the terr’ists rights!”, the following scenarios aren’t what’re talking about:
    -He’s involved in direct combat (not targetted at him) with US forces and is killed as result: That’s war.
    -He’s a *direct* and *immediate* (as in, he’s holding a gun to someone’s head and is going to shoot, or trying to blow up an airplane… not as in “he’s smacktalking the US and talking people into committing terrorism at a later date”): Just like the police has a right to do.
    -He’s resisting arrest with lethal force and is inadvertendly killed: Again, police do it all the time. When they’re not tasering 80yearolds…

    This is what we’re talking about:
    -He’s killed in a targetted strike, ordered by the President based on secret information, without a court of law having heard and judged the case.

    Time for another drink…

  189. 189
    Xboxershorts says:

    @FlipYrWhig:

    This is how rights are eroded.

    I absolutely abhor your flip dismissal of my right to life, liberty and pursuit of happiness.

    Yes, the president can designate anyone he wishes a terrorist or terrorist enabler.

    And yes, he can then have you arrested or assassinated or exported for torture.

    Your entire thought process is indefensible. There IS no other side, fool.

  190. 190
    FlipYrWhig says:

    @Egypt Steve:

    Here is the bottom line question. If the Executive can “designate” Al-Alawki a terrorist and order his termination, and refuse to disclose to anyone their reasons for doing so, and if the courts agree that this Executive decision is un-reviewable, then what legal principle prevents a president from “designating” anyone at all, at his whim, a “terrorist” and marking him for death? “Good faith” is not an answer. What law prevents it? And if there is such a law, who will enforce it if the courts buy Obama’s “State Secrets” argument?

    But that’s not the only “bottom line question.” The other bottom line question is that if the executive cannot do these things, what else would you have them do? Because it seems like many of your grievances are actually about the whole existence of “state secrets privilege,” and if you don’t believe in that, you’re going to have a steep uphill climb trying to figure out how to prosecute cases that have bearing on sensitive national security matters. Which is why _this is difficult_, not easy. That’s not to say that declaring a “state secret” should be done willy-nilly, but that trying to find the lines between legitimate and illegitimate interests takes a lot of serious debate, which is why there’s a legal mess to disentangle and discuss, and playing with hypotheticals is going to go around and around in circles. Blogs are good for that, but they’re not good for settling the underlying issues. And they may not be easy to settle.

  191. 191
    srv says:

    @mattt:

    Does anybody lose any sleep because he is still formally a US citizen? Was judicial review necessary?

    If your dude was the sole reason for the targeting, was not wearing an SS uniform, and was not in a battlezone, then yes.

  192. 192
    El Cid says:

    @joe from Lowell: They don’t have to “declare war” as such. If the Cuban parliament had voted to declare certain terrorist groups enemies of their state, would you or anyone else in the US expressed the slightest interest in such a thing? (After all, it’s a dictatorship, so presumably their declarations don’t count.)

    The point you bring is also irrelevant — whether or not Cuba’s government had declared Alpha 66 or Omega 7 enemies of their state, the general question I asked would still apply.

    How would it change the question I asked whether such a declaration had or had not been, in reality, made?

    The Sandinistas, on the other hand, clearly and repeatedly declared war against the Contra terrorists, and US officials were both harboring, advising, and arming them.

    If such a question cannot be answered as a general rule of international state assassination policies, why even discuss it as though it had to do with anything other than a particular program by one particular government?

  193. 193
    FlipYrWhig says:

    @Xboxershorts: Yeah, that was helpful. It’s always easier to be an absolutist. None of those “gray areas” to get in the way of imaginary, self-congratulatory righteousness.

  194. 194
    Egypt Steve says:

    @joe from Lowell: The Military doesn’t have to prove anything to kill someone on a battlefield. If they catch Al-Alawki in Afghanistan with an AK-47, bombs away. But the President can’t just declare the “entire world” a battlefield and use the Military as a death squad. Or do you disagree?

  195. 195
    El Cid says:

    Forgive my lack of knowledge, but what would restrict this targeted assassination policy to groups to whom there was legislation declaring a war or war footing policy against?

    Would this include not only Al Qa’ida and the Taliban and their various copycat organizations around the Middle East and South Asia, but any of the organizations declared by the State Department to be among terrorist organizations?

    If so, what would restrict the policy to be carried out solely against members of those organizations?

  196. 196
    eemom says:

    Late to the thread here, so apologies if it has been covered already, but my question is this:

    If we’re defining the issue as a moral and not a legal one, why is the targeting of this person without due process of law any different from — or more outrageous than — a similar targeting of, say, a Taliban kingpin in Afghanistan?

    Because if the answer is that Al Alwaki is an American citizen, the argument is, by definition, purely legal and not moral.

  197. 197
    joe from Lowell says:

    Here is the bottom line question. If the Executive can “designate” Al-Alawki a terrorist

    No, not “a terrorist.” A member of al Qaeda, the organization against whom we are fighting a war. The president has designated all sorts of people not affiliated with al Qaeda to be terrorists – for instance, Iranian Revolution Guards, Tamil Tigers, and Hezbollah – and he cannot order them captured or killed under war powers, because we are not at war with any of those groups.

    …and order his termination, and refuse to disclose to anyone their reasons for doing so, and if the courts agree that this Executive decision is un-reviewable, then what legal principle prevents a president from “designating” anyone at all, at his whim, a “terrorist” and marking him for death?

    Well, for one thing, he can’t do this within the United States, where our civilian government is in power.

    But, yes, presidents during wartime have immense power. Scary-immense power. If you wish to make the case that we should not be at war with the people who attacked us on 9/11, on the grounds that the cure is worse than the disease, go ahead. There’s a case to be made. Nations choose not to go to war in the face of plausible reasons to do so, specifically because they don’t want to be at war and living in wartime conditions, all the time. This is not, however, an argument delineating the president/military’s powers when we are in a declared war, like the one we’re in now against al Qaeda.

    As a side note, I made the point “We shouldn’t have attacked Iraq because Iraq had nothing to do with 9/11,” many, many times over the past 7 years. I actually meant it; it wasn’t just something useful to say in a debate with an Iraq hawk. Similarly, I made the point “We can’t fight a War on Terror, because terror is just a tactic; we’re fighting a war against al Qaeda,” many, many times over the past 9 years. I actually meant that, too. Again, it wasn’t just something useful to say in a debate.

    There were a lot of other people who made those arguments, but a number of them appear to have been arguing dishonestly, and that disappoints me.

  198. 198
    FlipYrWhig says:

    @Douglas:

    Yes, arresting him and affording him due process will endanger the forces used to arrest him as well as civilians (as it might take longer, and he might recruit more terrorists during that time). And yes, it still unequivocally the right choice.

    I’m down with that. But if you’re part of the government, that’s going to be a bitter fucking pill to swallow. Think of the shitstorm that Ruby Ridge or the Branch Davidians provoked. That’s what you have to be able to stand tall and defend.

    We know by now that if you’re the president, or a military leader, you might have to make a decision to, say, shoot down a plane with innocent people aboard in order to spare the lives of people on the ground. We know that that has to be The Right Thing To Do. And I don’t think any one of us would be 100% comfortable bounding up to the podium to announce the results.

    I’m not saying it’s not _right_ to handle this situation in the way Douglas and others have described. I think it’s right. I also think it’s got to be unbelievably fucking painful to make that call. And we should at least consider that for a moment or two before ranting about how the right thing to do is so obvious.

  199. 199
    El Cid says:

    @joe from Lowell:

    The president has designated all sorts of people not affiliated with al Qaeda to be terrorists – for instance, Iranian Revolution Guards, Tamil Tigers, and Hezbollah – and he cannot order them captured or killed under war powers, because we are not at war with any of those groups.

    If he chose to, what would prevent a President from doing so anyway?

  200. 200
    joe from Lowell says:

    @El Cid:

    If the Cuban parliament had voted to declare certain terrorist groups enemies of their state, would you or anyone else in the US expressed the slightest interest in such a thing?

    I’d express a great deal of interest. As I said, the United States would be well within its right to go to war against Cuba if they did that.

    Just as al Qaeda would be well within their rights to go to war with us. But, then, that horse has left the barn, and well before we’d ever hit them.

    The point you bring is also irrelevant—whether or not Cuba’s government had declared Alpha 66 or Omega 7 enemies of their state, the general question I asked would still apply.

    Well, we have domestic laws and a domestic constitution in the United States that our actions needs to conform to. I was making the point that they do.

    The Sandinistas, on the other hand, clearly and repeatedly declared war against the Contra terrorists, and US officials were both harboring, advising, and arming them.

    Indeed. Did you not notice that I answered your question in the affirmative already? The Sandinistas would have been well within their rights to declare war on us, as bad an idea as that would have been for them. The reason it was a Cold War was because countries made the decision to keep things cold, even though conditions for war existed.

  201. 201
    Patrick Meighan says:

    “The military does not have to prove anything in any court of law to target the enemy in war.”

    And the US military has proven that this particular US citizen happens to be “the enemy” how, exactly? Or is it your assertion that, in wartime, under the auspices of the AUMF, the US military retains the unreviewable, unappealable legal right to declare *any* US citizen to be “the enemy” (a member of al Qaeda, presumably) and to then kill that US citizen on sight if that US citizen happens to be outside of US borders (under Obama’s current orders), or even inside of US borders (if Obama’s orders should so include)?

    If you wish to show me any indictments brought against privates in the Kaiser’s army, I’ll be happy to review them.

    If you wish to show me any US citizens who were unilaterally declared (by the US executive) to be privates in Kaiser’s army and who were then killed far from any battlefield, I’ll be happy to maintain that those particular US citizens had their constitutional rights violated.

    Patrick Meighan
    Culver City, CA

  202. 202
    Egypt Steve says:

    @FlipYrWhig: I think these things are easy to settle, if politicians did not shit their pants about being demagogued by Glenn Beck. But, in answer to your question, what would I have the government do:

    1) Lean on Yemen, hard, to give him up. There is such a thing as diplomacy. It can work.

    2) I continue to believe that the Constitution gives every accused the right to mount a full defense, including compulsory production of all evidence and witnesses against him. I do not see in the text of the Constitution any right of the Government to withhold evidence for national security reasons. The “States Secrets” privilege is an invention of activist judges. Therefore, I say to the Government: put up or shut up.

  203. 203
    General Stuck says:

    @Egypt Steve:

    But the President can’t just declare the “entire world” a battlefield and use the Military as a death squad

    Well of course he hasn’t. Al Alwlaki is in a largely lawless region on Yemen, and the Yemeni government and military have asked or invited us to assist in capturing or killing the guy, who is traveling with and protected by others armed with military weaponry and aligned with AQ./

    Further that Mr. Alwlaki has a while ago said he will never surrender to America and they will have to come get him.

    The disagreement is over whether he is on something like a battlefield making him unarrestable without a military operation that will more resemble a military battle. I say he is, and is just another soldier armed or protected by armed members or soldiers of AQ, The one we declared war on, and they us.

  204. 204
    Corner Stone says:

    @Patrick Meighan: Get ready to hear more about the Kaiser and/or some false WWII analogy.

  205. 205
    soonergrunt says:

    @General Stuck: Aw, come ON, Stuck! Who the fuck do you think you are pointing out things like facts, and the law and such? Don’t you know that people have to feel what they feel and that the world has to comport with their emotional state or otherwise it’s illegal?

    Where’d that reality-based community go? I need to find that.

  206. 206
    joe from Lowell says:

    @Egypt Steve:

    The Military doesn’t have to prove anything to kill someone on a battlefield. If they catch Al-Alawki in Afghanistan with an AK-47, bombs away. But the President can’t just declare the “entire world” a battlefield and use the Military as a death squad. Or do you disagree?

    I don’t think hysterical language like this advances the argument. I think it’s meant to obscure logic behind emotion.

    First, how many different ways would you like me to repeat myself? We may target our wartime enemies when they’re off the battlefield. Luftwaffe bases. Ball bearing plants. Rail yards. Oil depots. Submarine bases. Not a single one of these was a battlefield, until our bombs fell on them. All perfectly legal. If it belongs to the enemy, or is the enemy, and it’s of military value, bombs away.

    Second, death squads kill civilians, innocents. Snipers targeting enemy officers are not death squads, and they are not murderers. They are soldiers at war.

  207. 207
    smeh says:

    It’s fascinating watching americans from afar.

    On one side the idea that Alwaki is special because he is a “american” citizen confers on him special rights and protections, most notably being free from being killed by the american government.

    Then there is the birthers, they claim that if Obama is somehow not an “american” then he is some kind of manchurian thingy.

    Do you people even understand that “american” is not actually a species? That any government killing any civilian human without due process or in the context of a real war is evil?

    That some moronic 16th century prohibition about “natural born citizen” is well, moronic 16th century nonsense.

    Grow up will ya, please?

  208. 208
    Corner Stone says:

    The document, AUMF, joe from LoL keeps citing doesn’t even mention AQ, or any of its offshoots. At least the one I’ve found through his links to Wiki.
    What if we determined that since 16 of 19 9/11 hijackers were Saudi, that really Saudi Arabia was responsible for 9/11 and then went after them?
    What if the IRA had financial ties to a charity that funded or filtered the funding that paid for the airplane training? Would we then start exing out people in Ireland?
    The AUMF is a huge empty sheet, where the executive can fill in any blanks he or she feels like.

  209. 209
    joe from Lowell says:

    @El Cid:

    Forgive my lack of knowledge, but what would restrict this targeted assassination policy to groups to whom there was legislation declaring a war or war footing policy against?
    Would this include not only Al Qa’ida and the Taliban and their various copycat organizations around the Middle East and South Asia, but any of the organizations declared by the State Department to be among terrorist organizations?

    Congress didn’t declare war (or pass an AUMF) against terror groups in general, but against al Qaeda. Just as Congress didn’t declare war against fascist governments in general in the 40s. Indeed, some of our allies in South America were pretty brown.

    The ability of the president to use war powers against those we are not at war with is restricted by the Constitution’s provision that Congress, not the executive, has the power to declare war. Indeed, Obama’s reversal of Bush’s doctrine that the president gets to make this decision on his own, and his return to the “war powers come from Congress” doctrine, was a major step in the right direction.

  210. 210
    El Cid says:

    @joe from Lowell:

    I’d express a great deal of interest. As I said, the United States would be well within its right to go to war against Cuba if they did that.

    Okay, so a terrorist group harbored from within the United States attacks Cuban facilities and murders Cuban civilians, and the US would be ‘well within its rights’ going to war with Cuba if Cuba got tired of the US blowing off its requests for extradition or the shutting down of this group?

    We get to go anywhere in the world and blow up terrorist groups who have attacked us, but terrorists we harbor and/or support are to be immune from attack by sovereigns elsewhere?

    I hardly believe that if Germany were harboring an actual Al Qa’ida group which had attacked the US and killed US citizens, the US would refrain from targeting Al Qa’ida within Germany.

    I would have been in complete support of Cuban agents assassinating terrorist murderers operating from US territories. If no one else were capturing them and either extraditing them or trying them or simply isolating them from terrorist attacks on other nations, of course I would endorse other governments having the same right to assassinate civilians on US territory that the US would declare it could do regarding others.

    Who could possibly pose some insane nationalist bullshit where the US could harbor actual terrorists who had repeatedly attacked the legitimate, internationally recognized Cuban government and killed civilians without the nation so attacked ending those terrorists’ ability to attack them?

  211. 211
    FlipYrWhig says:

    @Egypt Steve:

    I think these things are easy to settle, if politicians did not shit their pants about being demagogued by Glenn Beck.

    Maybe. But I’m thinking about what would happen if to prosecute Awlaki the US had to reveal that it collected evidence against him through some kind of, I don’t know, nanobot they released into the Red Sea or something, and then that would never be usable again. I totally agree that a “state secrets privilege” is the kind of thing that could be wildly misused, so it makes sense to put a brake or a review on it, but then you’re back into ruling it in some times, ruling it out other times, rather than eliminating it entirely. Like I said, this is not my area at all, but it seems like it’s not that hard to come up with weird hypotheticals that make “secret evidence” and apparently arbitrary government action more justifiable… meaning that it’s both hard and necessary to patrol the boundaries between what’s potentially justifiable and what’s just cooked-up “because we said so” bullshit.

  212. 212
    mattt says:

    @ Pa@Patrick Meighan: I am not Joe but:

    1) Nothing stops the President legally. Only public outcry, fueled by the media, and elections, threaten the President in such an event

    2) Sure it’s worrisome….but I think the above deterrents are meaningful. And the alternative is to potentially hobble the president in taking decisive action against active plots vs. the US that happen to be orchestrated by citizens abroad.

    3) If a US citizen located on US soil is actively involved in a mass-casualty action to take place on US soil, I think a capture-or-kill order would be both appropriate and constitutional.

    If the Clinton administration had been credibly informed that Timothy McVeigh was headed to OKC with a truckload of fertilizer, and wouldn’t be taken alive…..would they have been wrong or operating outside their authority to order forceful interdiction?

  213. 213
    joe from Lowell says:

    @El Cid:

    If he chose to, what would prevent a President from doing so anyway?

    I thought we were discussing legality. On purely practical terms, political push-back, I guess.

    Fat chance of that happening, but then, that goes back a lot further than Obama, or ever Bush.

  214. 214
    El Cid says:

    @joe from Lowell: I wasn’t asking you to simply repeat with whom the US declared war.

    I asked you, or anybody, the question of why the President could not act similarly against a group against whom AUMF or war had not been approved?

    What would prevent him from doing so, other than a President’s own philosophy or sense of restraint?

    Please don’t repeat that war had been declared against Al Qa’ida, because that isn’t the question.

  215. 215
    srv says:

    @General Stuck:

    OBL issued a Fatwa as early as 1998 or 96 declaring AQ at war with the us.

    “A declaration of war (aka DOW, DoW) is a formal performative speech act or signing of a document by an authorized party of a government in order to initiate a state of war between two or more nations.”

    All these legal experts keep throwing stuff like this out. What is the technical legal basis for a non-state actor “declaring war”? Particularly since there was no Congressional war declaration response from the US at the time.

    I imagine it’s up there with the legal basis for being a member ofAQ. There’s no membership roster, no dues, no ID card, no secret handshake. But if you allegedly write an email to someone at Ft. Hood that says happy things about the wrong guy, then good enough for the Star Chamber.

  216. 216
    Ruckus says:

    When the term freedom is not free is used do you think that means you can kill someone you think is trying to take away your freedom? Or do you understand that it means that sometimes you die for freedom?

    I ask because it seems like many here are arguing that it is OK to kill anyone they perceive to be an enemy. At any time. Any where. At no possible cost to their future freedom.

    Do you think it’s OK for the police to taze someone? Even when someone might die as many have. These people have not been tried in court, have not been convicted, and from many accounts that I have seen and heard of most likely would be convicted of a minor misdemeanor at best. Except the police used “non-lethal” force and now they are dead. Is this OK? Because if it is then the discussion we have been having is useless to continue. Try to connect the dots here, that what the government is trying to achieve is to be able to kill anyone, anytime, anywhere they chose, with no oversight.
    Oversight is the cornerstone of our type of government. It is what is supposed to keep the government from being too powerful. And killing anyone, anytime, anywhere without oversight is a government that is way too powerful.
    Otherwise as stated above, you have battlefield earth. All war, all the time, everyone is a combatant, all the time. Do you want to live like that? I bet you don’t

  217. 217
    El Cid says:

    @srv: Outside the particulars of whether or not this particular program regarding Al Qa’ida or Al-Awlaki has similar defined charges, you don’t have to have some sort of uniform or card ID in order to be captured or charged as a member of an organized crime syndicate.

  218. 218
    Mnemosyne says:

    @smeh:

    On one side the idea that Alwaki is special because he is a “american” citizen confers on him special rights and protections, most notably being free from being killed by the american government.

    Well, yeah, because we have this thing called the Constitution that guarantees certain rights to American citizens and people living within the borders of the United States. This isn’t some weird abstract conversation — we’re discussing an actual document that set up the structure for our legal system and what the government is and is not allowed to do. If you don’t want to listen to obscure conversations about the Constitution because you find our legal system boring, then skip the thread.

  219. 219
    Sly says:

    My post got torn apart by WordPress. /sadface.

  220. 220
    joe from Lowell says:

    @Patrick Meighan:

    And the US military has proven that this particular US citizen happens to be “the enemy” how, exactly?

    Exactly the same way they proved that a ball-bearing factory in Germany was part of the German war effort: by gathering sufficient intelligence to prove it to the satisfaction of the chain of command. That’s the war power. Nobody gets to review target selection.

    Or is it your assertion that, in wartime, under the auspices of the AUMF, the US military retains the unreviewable, unappealable legal right to declare any US citizen to be “the enemy” (a member of al Qaeda, presumably) and to then kill that US citizen on sight if that US citizen happens to be outside of US borders (under Obama’s current orders)

    Yep. The war power is an awesome power. We shouldn’t take it lightly. The review of the executive’s decisions is internal to the executive, unless Congress was to pass laws under its power to regulate military forces.

    or even inside of US borders (if Obama’s orders should so include)?

    You mean like the Civil War? I don’t think that would be legal unless a portion of the United States was, itself, an active battlefield, or taken over by a foreign power.

    If you wish to show me any US citizens who were unilaterally declared (by the US executive) to be privates in Kaiser’s army and who were then killed far from any battlefield, I’ll be happy to maintain that those particular US citizens had their constitutional rights violated.

    First, you need to either drop this fallacious “far from any battlefield” argument, or come up with a rebuttal to the answers I have given over and over and over and over on this point, if you want a response from me on this point. I’ve said my peace, and seen nothing to indicate that a further response is necessary.

    Secondly, American citizens were fired upon, and even killed, while fighting in the German army in World War 2. I don’t know about World War 1.

    So, all that leaves is the “designated” part, and I’ve answered that many, many times as well. The military gets to designated its targets.

  221. 221
    Patrick Meighan says:

    “Well, we have domestic laws and a domestic constitution in the United States that our actions needs to conform to.”

    Joe from Lowell,

    Please cite the case(s) or statute(s) which declare(s) that a US citizen’s rights/protections from US executive power when that US citizen resides in domestic territory is in any way distinct from a US citizen’s rights/protections from US executive power when that US citizen resides in foreign territory.

    ‘Cause in the absence of said cites, it sure appears to me that each thing you’re saying that President Obama can legally do to a foreign-located US citizen whom Obama claims to be an al Qaeda member is a thing that President Obama can do to a domestically-located US citizen whom Obama claims to be an al Qaeda member. All he’s gotta do is issue a new order. Badda-bang, badda-boom, extra-judicial assassinations on US soil, with absolutely no legal recourse to stop it.

    Maybe if you could just direct me to those cites please, that’d go a long way toward assuaging my fears.

    Patrick Meighan
    Culver City, CA

  222. 222
    Corner Stone says:

    @joe from LoL:

    Congress didn’t declare war (or pass an AUMF) against terror groups in general, but against al Qaeda

    WTF are you talking about?

    (a) IN GENERAL- 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    Authorization for Use of Military Force (Enrolled Bill)

  223. 223
    joe from Lowell says:

    @El Cid:

    We get to go anywhere in the world and blow up terrorist groups who have attacked us, but terrorists we harbor and/or support are to be immune from attack by sovereigns elsewhere?

    Is this a joke? I have answered the opposite, what, three, four times now?

    NO, they are NOT immune, and those sovereigns MAY attack them. They are entirely within their rights if they decide that’s a good idea.

    I hope I have made myself clear at last. If not, there’s nothing more I can do for you.

  224. 224
    Patrick Meighan says:

    “Nothing stops the President legally. Only public outcry, fueled by the media, and elections, threaten the President in such an event. Sure it’s worrisome….but I think the above deterrents are meaningful.”

    The constitution guarantees the right of each citizen to petition the court for redress of grievances. I don’t care if you think that the other deterrents are sufficiently meaningful, I have no desire to participate in sacrificing that constitutional right for myself, nor for my fellow citizens.

    Patrick Meighan
    Culver City, CA

  225. 225
    General Stuck says:

    @srv:

    What is the technical legal basis for a non-state actor “declaring war”?

    The short answer, any way they want, and that goes for state actors as well, in their particular way that carries the weight of law for them. As Fatwas often do to certain Muslims.

    The courts have long ago stated that congress has plenary power on declaring war via it’s war powers granted by the constitution. Which means again, however they wish to do it. Either through formal process or with binding resolutions.

    There is no international format for actors declaring war on each other, at least as binding law, and they don’t even have to make it formal. War is primal behaviour and in essence only requires one group of people with similar complaints to start shooting at another who may or may not have complaints, other than being shot at. There are international rules of conduct, and law on how the shooting is carried out, and treatment of prisoners and civilians and the like.

  226. 226
    Ruckus says:

    I also don’t see where this is limited to a military process. The government is arguing that they can use any means, anytime, anywhere to kill anyone they deem.

    Despite these tensions between the US and Yemen, as well as increasing worries about terrorism in Yemen, President Obama has stated that he has no plans to introduce US military forces into the country, a sentiment that was echoed by US General David Petraeus. Instead of military intervention, the US government intends to increase military aid to $140 million in 2010.[38]

    So if this is not a military operation or theater of war, then this is assassination. With no due process it is no different than the mob calling out a hit.

  227. 227
    joe from Lowell says:

    @srv:

    What is the technical legal basis for a non-state actor “declaring war”?

    There is none; but then, our right to declare war doesn’t depend upon others, state or non-state, declaring war on us. Nonethelss, the al Qaeda declaration leaves little doubt that they are de facto at war with us, even if they have no de jure standing to be at war or at peace. In addition to the bombings and airplanes and stuff.

    But if you allegedly write an email to someone at Ft. Hood that says happy things about the wrong guy, then good enough for the Star Chamber.

    Oh, look, you learned a big word. Pay no attention to the 9/11 attacks and this.

  228. 228
    General Stuck says:

    @srv: The anti terrorism laws on the books currently in the US are quite draconian and with no wiggle room. Maybe too draconian, but that is another debate, and material support can involve all sorts of seeming minor interactions with groups designated as terrorists and can get you 20 years in a heartbeat.

  229. 229
    joe from Lowell says:

    @Corner Stone:

    WTF are you talking about?

    The document you linked to, dumbass.

  230. 230
    mattt says:

    @ joe: sorry I can’t type (or think) faster; you beat me to all the arguments. But you’re making sense, man.

  231. 231
    El Cid says:

    @joe from Lowell: I don’t understand then — what was the case under which the US was ‘well within its rights’ to go to war with Cuba, given the situation I described?

    Unless maybe I wasn’t being clear, which is certainly a good possibility. Maybe it sounded like I was suggesting that Cuba could attack the United States, when instead I was suggesting a targeted assassination of murderous terrorist groups such as Alpha 66 or Omega 7.

    Surely in the later case, when there is no wider attack on the US property or infrastructure or civilians that Cuba’s government would be within its rights to assassinate such terrorists on US soil.

  232. 232
    joe from Lowell says:

    @Patrick Meighan: Why do you think that Only public outcry, fueled by the media, and elections, threaten the President in such an event. and
    The constitution guarantees the right of each citizen to petition the court for redress of grievances. are contradictory? The public outcry IS the petition for a redress of grievances. You’re both saying the same thing – public pushback, political costs, are the restraint.

    And where on Earth did you get the idea that anything he wrote means you don’t get to petition for redress of grievances?

  233. 233
    El Cid says:

    @joe from Lowell:

    If not, there’s nothing more I can do for you.

    Fuck you, you fucking dick. Please don’t ever mistake me asking a general question or for a response as a request for you to ‘do’ something ‘for’ me.

  234. 234
    Patrick Meighan says:

    “You mean like the Civil War? I don’t think that would be legal unless a portion of the United States was, itself, an active battlefield, or taken over by a foreign power.”

    Having now concretely established that you believe that President Obama has the legal, unilateraly, unreviewable right to declare any and every US citizen located outside of our borders to be an al Qaeda member and to kill him or her on sight, I’d point out that Obama’s predecessor declared the entire planet to be “a battlefield,” and that President Obama has not revoked that formulation. Similarly, the AUMF has set no geographic limitation on what is and is not a battlefield in this war. So if President Obama is within his legal rights to consider Yemen a battlefield and kill a US citizen there by virtue of Obama’s own declaration that said citizen is a member of al Qaeda, then what, legally, prevents President Obama from considering Baltimore a battlefield and killing a US citizen there, after first declaring said Baltimorean to be a member of al Qaeda?

    Please be specific, ’cause this seems like kind of a big deal.

    Patrick Meighan
    Culver City, CA

  235. 235
    joe from Lowell says:

    @Ruckus:

    Two different concepts of the word “military.” It’s been used throughout this thread to mean “force carried out under the war powers,” which can include things like infantry attacks and cruise missiles, but can also include quieter actions from the CIA. No, that does not make it “not a military action,” in the legal sense of using war powers. The war power isn’t limited to noisy, public actions. To the extent you’re making a point, it’s a purely aesthetic one. There is no legal difference between ordering a missile strike and ordering a sniper team.

  236. 236
    socraticsilence says:

    @BTD:

    I actually agree with you here pretty vehemently- there should be a standardized open review process, but this case is a very hard one to make it on- it appears clear from open source documents that the man in question has the sam@joe from Lowell:

    exactly- I hate to do this but according to International norms other than the means used attack on the Pentagon- wasn’t an act of terror it was a behind the lines wartime attack, something like the USS Cole bombing- again not terrorism- war, and when you start viewing things through this perspective it becomes far less clear whether something like killing Al-Awaki is either illegal or immoral.

  237. 237
    Sly says:

    So anyway, before my post got ripped all apart by WordPress, I came to the conclusion that actually reading the DOJ brief might be a bit illustrative in sorting out what, exactly, the argument entails rather than have someone else do the heavy lifting for me and assume their interpretation is accurate. So I did.

    Incidentally, its worth noting that the state secrets portion of the brief is merely one of a number of arguments that the DOJ is using. There are issues of jursidiction and justiciability that no one seems to be interested in, likely because they entail a lot of legal mumbo-jumbo that is less fun to toss around than words and phrases like “Assassination,” “North Korea,” and “Just Trust the Military to Kill the Right People”. But at any rate, what the DOJ is arguing in the state secrets section is, essentially, two things.

    The first is that the state will neither confirm nor deny any details relating to methods of investigation of any future operations against Al-Awlaki, as such revelations may compromise other sensitive operations. The second is that the necessity of keeping intelligence gathering methods secret outweighs an injunction against a hypothetical course of action the state may pursue.

    In short, this is not an argument, as Greenwald and others characterize it, that states “not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are ‘state secrets,’ and thus no court may adjudicate their legality.”

    One could argue as to whether the DOJ has a credible case in disallowing such evidence, but explicitly saying that they’re covering up for an assassination plot is hyperbole. Actually its kind of worse than hyperbole, its a fairly blatant strawman once you actually parse the brief. The biggest reason for this is that the DOJ would be making this argument regardless as to whether the plans the military “may or may not” have in relation to Al-Awlaki entail assassination, capture, or even indictment in absentia. All the “Obama = Stalin” and “He’s a Terrorist, So Kill Him” arguments, in this context, are irrelevant.

    The larger issue, I think, is that this is a case where there is a credible argument that no discernable standard exists in the conventional sense. We’re not talking about someone who is being pursued for having committed treason, we’re talking about a possible investigation into whether someone is in the process of committing treason, and an injunction against a hypothetical course of action to address that crime.

    The analogy is flawed, but its akin to someone who believes they are the subject of an ongoing FBI investigation, and so they file a motion to reveal any and all details relating to a hypothetical indictment in open court, and demanding an official injunction against any future hypothetical indictment until such material is revealed. Its flawed because, in such cases, their are precedents for handling such occurrences. There aren’t really any here (at least not any that are more than a few years old and somewhat tangentially related). Like all lawyers, the DOJ is pointing to whatever recent precedent they can to find a standard.

    Whether they succeed or not will be up to the presiding judge, but in the end, I think, its the job of Congress or SCOTUS to create a standard that addresses these issues. Congress won’t do it because they’re wetting their pants over the possibility of being painted as terrorist-coddlers (as they have over issues of detention and interrogation), and SCOTUS has yet to do it because they have to hear a relevant case. I wouldn’t be surprised then, if SCOTUS actually settles the argument, that they do so by taking this case on appeal. So we’re basically consigned to see a turf war between the executive and the judiciary play out in real time.

    I am not living in any fantasy world where these issues will actually be discussed. Please continue talking passed each other.

  238. 238
    socraticsilence says:

    Another point- I really don’t get how people are grouping this and the use of torture together- in terms of international law their worlds apart, and frankly morally the difference between the two actions is pretty distinct.

  239. 239
    Karmakin says:

    Re: The Cuba analogy, the way I see it, it’s more like this. Say if far-right wing ex-Cuban folks were plotting, training and funding active terrorism, like a bombing campaign within Cuba. Say if the US Government refused to do anything about it. IMO, the Cuban government would be perfectly within its rights to try and take military action to try and stop this.

    Now, said military action, in this case would be futile and stupid. And in such a case, the proper action would be for the US Government to investigate the case, arrest the responsible individuals and either try them ourselves, or extradite them to Cuba.

    Personally, I think using Cuba as an example is bad, namely because Cuba is pretty dirty when it comes to human rights violations (although I think that the people who backed them into a corner deserve blame as well) Change Cuba with Canada if it helps.

    The point that needs to be made clear here, is that this sort of thing is nothing new. It goes back decades, centuries even. It’s the nature of war and conflict. Is it something I celebrate? No. But it simply is what it is.

  240. 240
    Corner Stone says:

    @joe from LoL: Hey. Trucknutz.
    Please show us all where AQ is specifically mentioned in that AUMF.

  241. 241
    joe from Lowell says:

    @El Cid: I think I see the confusion.

    Both are legal. Cuba is well within its rights to attack members of those groups, and we’re well within our rights to hit Cuba in response. The fact that we would choose to hit Cuba in response doesn’t make Cuba’s actions illegal, just stupid.

    That’s the thing about war: both sides can be well within their rights, and neither party’s decision to make war makes the other’s actions illegal.

    Also, calm yourself. I went out of my way to answer you, and did so over and over, and being repeatedly badgered is annoying.

  242. 242
    smeh says:

    @Mnemosyne: Actually I rather respect and admire your constitution and the bill of rights.

    They wrote “all men are created equal” or something deliberatly I think subsequently fixed by the 14th and 19th amendments, (kill me if I got the numbers wrong to include blacks and women).

    And they demanded due process and equal protection.

  243. 243
    joe from Lowell says:

    @Patrick Meighan:

    I’d point out that Obama’s predecessor declared the entire planet to be “a battlefield,” and that President Obama has not revoked that formulation

    I don’t think that’s true, not in any legal sense. He said all sorts of rhetorical things, but I don’t think Bush ever declared that his war powers extended into US territory in any official manner. For instance, he set up Gitmo outside of US territory for the specific reason that he would have to cede his war powers to the civilian government and the other branches if he’d set up a camp inside the US.

    And even then, SCOTUS ruled that the base at Gitmo was US territory, and our civilian laws like habeas applied there.

    This is, indeed, a big deal. The bright line between the United States and Overseas is a very big deal.

  244. 244
    General Stuck says:

    @Sly:

    Whether they succeed or not will be up to the presiding judge, but in the end, I think, its the job of Congress or SCOTUS to create a standard that addresses these issues. Congress won’t do it because they’re wetting their pants over the possibility of being painted as terrorist-coddlers (as they have over issues of detention and interrogation), and SCOTUS has yet to do it because they have to hear a relevant case. I wouldn’t be surprised then, if SCOTUS actually settles the argument, that they do so by taking this case on appeal. So we’re basically consigned to see a turf war between the executive and the judiciary play out in real time.

    precisely. and in the end Obama is not really blocking anything because every party knows the time is now for the SCOTUS to make it’s ruling and set conditions and tests and the like, and even this right wing court, I do believe will can the odious no “in camera” examination on merits of the gov’s claims for exempting evidence, that is clearly un legal and un American.

  245. 245
    joe from Lowell says:

    @socraticsilence:

    exactly- I hate to do this but according to International norms other than the means used attack on the Pentagon- wasn’t an act of terror it was a behind the lines wartime attack, something like the USS Cole bombing- again not terrorism- war, and when you start viewing things through this perspective it becomes far less clear whether something like killing Al-Awaki is either illegal or immoral.

    I agree, except that the means used to hit the Pentagon involved the murder of innocent civilians – not as “collateral damage,” but as the means of the attack itself.

  246. 246
    Karmakin says:

    @Corner Stone: “To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.”

    That means AQ. It doesn’t say it by name, but it does imply it by definition. Now that’s something that might be able to be challenged in court, I guess. But it’s the type of ruleslawyering that in the end doesn’t really help things, at least IMO.

    IICR the AUMF from September 18th, 2001 was supported at the time by pretty much everybody from one end of the political spectrum to the other.

  247. 247
    joe from Lowell says:

    @Corner Stone:

    Really? Is this what you’ve sunk to?

    Pretending not to know who attacked the WTC?

    Corner Stone, was 9/11 an inside job?

  248. 248
    srv says:

    @El Cid: We aren’t at “war” with organized crime syndicates.

  249. 249
    Karmakin says:

    @socraticsilence: I actually agree with the definitions…the attack on the USS Cole and if the plane were empty, the attack on the Pentagon were not “terrorist” acts. They were acts of war. (The attack on the WTC on the other hand…)

    That doesn’t change anything in regards to what we’re talking about however.

  250. 250
    Patrick Meighan says:

    “The public outcry IS the petition for a redress of grievances.”

    No, it isn’t. “(R)edress of grievances” is, I’m sure you realize, a reference to the First Amendment, in which every US citizen is guaranteed the right “to petition the Government for a redress of grievances.” Each US citizen’s fundamental right to petition the US government to halt/undo wrongs done upon him or her (wrongs such as, for example, a summary-execution order) may not be temporarily paused during war-time, nor is it exchangeable for “public pushback, political costs”.

    “You’re both saying the same thing – public pushback, political costs, are the restraint.”

    The Bill of Rights are intended to safeguard the liberties of unpopular minorities (say, for example, US muslims with foreign-sounding names who are fierce critics of their government’s foreign policy). Those enumerated rights (including the right to petition the judiciary) are “the restraint” that protect the life and liberty of said unpopular minorities. If “public pushback, political costs” were sufficient restraint to protect unpopular minorities from abusive acts at the hands of the executive, the Bill of Rights would never have been necessary in the first place.

    Patrick Meighan
    Culver City, CA

  251. 251
    TimmyB says:

    @Corner Stone:

    And where is the evidence that the American Obama wants to kill assisted the terrorists responsible for the 9/11 attacks, which is the only basis under the law you linked to whereby Obama can target a suspected terrorist?

    Oh, that’s right, none exists.

    Furthermore, the Obama administration does not even have the scant evidence needed to file criminal charges against this guy, yet we are supposed to believe they have enough evidence to have him killed?

    How fucked up do you have to be to fall for that bullshit?

    On a final note, remember the outrage when the communists dictatorships would assassinate people who fled from them?

    As a country, we are becoming everything we used to despise.

  252. 252
    srv says:

    @joe from Lowell:

    Oh, look, you learned a big word. Pay no attention to the 9/11 attacks and this.

    What does that have to do with Al-Alwaki? Wait, you’re now saying he was involved with 9/11? Evidence please. Talk about Loose Changers…

  253. 253
    Sly says:

    @General Stuck:
    It’s a bit more than that. The executive branch is dealing with a situation where the only thing even closely related to a congressional consensus on how to deal with issues like this is “Just let the executive branch handle it, unless the executive branch asks us to do something that might make us look bad. Then we’ll say no.”

    I don’t even want to try counting the number of times they’ve abrogated their responsibilities in this fashion. It goes back decades.

  254. 254
    joe from Lowell says:

    @Patrick Meighan:

    You’re right, the right to petition for redress of grievances isn’t just about the public being able to organize. It protects the right to go to court. Brain fart on my part; I’m in, like, a 6:1 argument here. My bad.

    However, the right to go to court, itself, doesn’t provide a line of argument for why something the government did violated rights (unless we’re talking about the right to file in civil court). It means that, if the government violated your free speech rights, or your right to counsel, or doesn’t pay you just compensation when it takes your land, or whatnot, you can appeal to the courts.

    I’m not exactly sure what you’re arguing here. If the government violated al-Alwaki’s rights, he’d have the right to go to court. And you know what? He does! He can show up at the federal court house tomorrow and file papers. In fact, if you’re reading this “Imam” al-Alwaki, I totally urge you to do that.

    Perhaps I’m missing your point, though.

  255. 255
    Corner Stone says:

    @joe from LoL: You’re an amusing fellow.
    Well, you would be funny if you weren’t so damned sad.
    You’ve been trumpeting all up and down this blog how the AUMF was not ambiguous in any way, and specifically called out AQ.
    But it does not do that. No matter what interpretation you want to apply to that document, it simply does not do what you keep claiming. Lying about, really.
    It says any person or organization the President signs off on.
    And that is quite simply at the heart of what this is really all about.
    I don’t expect you to see that, because you are a disingenuous motherfucker who will probably tell me the Kaiser did something naughty, and battlefields exist miles from the WWII front lines.
    Or something else equally irrelevant.

  256. 256
    joe from Lowell says:

    @TimmyB:

    And where is the evidence that the American Obama wants to kill assisted the terrorists responsible for the 9/11 attacks, which is the only basis under the law you linked to whereby Obama can target a suspected terrorist?
    Oh, that’s right, none exists.
    Furthermore, the Obama administration does not even have the scant evidence needed to file criminal charges against this guy

    Uh, yeah, and your security clearance is, what, exactly?

    You’re talking out of the dorsal face of your lower abdomen.

  257. 257
    Patrick Meighan says:

    “(Bush) said all sorts of rhetorical things, but I don’t think Bush ever declared that his war powers extended into US territory in any official manner. For instance, he set up Gitmo outside of US territory for the specific reason that he would have to cede his war powers to the civilian government and the other branches if he’d set up a camp inside the US.”

    He also arrested a US citizen on US soil and unilaterally declared that US citizen to be an “enemy combatant,” ineligible for the constitutional rights afforded to US citizens.

    If President Bush had the legal right (under the AUMF) to go to Chicago and declare a US citizen to be an “enemy combatant” and arrest him without charge, doesn’t President Obama have the same legal right (under the AUMF) to go to Wyoming and declare a US citizen to be an al Qaeda member and summarily execute him, without charge? If not, please explain why not, and please use cites.

    “This is, indeed, a big deal. The bright line between the United States and Overseas is a very big deal.”

    The next piece of evidence you present which establishes a firm legal distinction between what President Obama can do to a US citizen on foreign soil whom he purports to be an al Qaeda member and what President Obama can do to a US citizen on domestic soil whom he purports to be an al Qaeda member will be the first such piece of evidence.

    Patrick Meighan
    Culver City, CA

  258. 258
    joe from Lowell says:

    @srv:

    What does that have to do with Al-Alwaki? Wait, you’re now saying he was involved with 9/11?

    Nope. Involved with the people – that is, al Qaeda – who carried out 9/11. You know, were weren’t only at war with one particular Japanese carrier group.

    This argument is beyond idiotic. The AUMF targeted al Qaeda. Not even al-Alwaki’s dad’s lawyers pretend otherwise.

    Evidence please.

    Nobody has to provide you evidence of a damn thing.

  259. 259
    joe from Lowell says:

    Anyway, here’s some information on al-Alwaki.

    You can pretend the government’s case against him is all a big conspiracy against an innocent ice-cream salesman, but nobody’s going to take you seriously.

  260. 260
    joe from LoL says:

    Someone needs to clue Joe in that American imperialism (especially slaughter of Muslims) is what caused the 9/11 attacks in the first place.

  261. 261
    joe from Lowell says:

    @Corner Stone: Such language. You kiss your mother with that mouth?

    Seriously, you’re going to keep this up? Pretending the AUMF doesn’t authorize us to make war on the organization behind the 9/11 attacks?

    I’m going to ask you again, since you’re clearly uncomfortable, and I want to make you squirm: who attacked us on 9/11? Was it an inside job?

    Please, don’t throw a hissy fit to avoid answering again. That would be really embarrassing. If you don’t want to, just slip away quietly.

  262. 262
    b-psycho says:

    Joe, one question: When does this all-encompassing authorization of military force END?

  263. 263
    joe from LoL says:

    Sounds like Al-Alwaki was pissed that the government is complicit in the mass slaughter of Muslims.

    How dare he retaliate, right? Americans are God’s Chosen People! USA! USA!

  264. 264
    joe from Lowell says:

    @Patrick Meighan:

    He also arrested a US citizen on US soil and unilaterally declared that US citizen to be an “enemy combatant,” ineligible for the constitutional rights afforded to US citizens.
    If President Bush had the legal right…

    He doesn’t. He was slapped down by the courts.

    The next piece of evidence you present which establishes a firm legal distinction between what President Obama can do to a US citizen on foreign soil whom he purports to be an al Qaeda member and what President Obama can do to a US citizen on domestic soil whom he purports to be an al Qaeda member will be the first such piece of evidence.

    Well, actually, the second, after the Gitmo habeas cases I mentioned. Here’s the NYT editorial after the Padilla decision.

    The Bush-era cases limiting the executive power claims – in Gitmo, and the Padilla case – are pretty important to understand. People who want to understand questions of executive power in wartime really need to familiarize themselves with the state of the law.

  265. 265
    joe from Lowell says:

    @joe from LoL:

    Corner Stone, who attacked us on 9/11?

    Was it an inside job?

    Grandpa, will you tell us about the Sixtiesman?

  266. 266
    Corner Stone says:

    @joe from LoL: What the AUMF does, as is clear to anyone who reads it, is give the Executive a blank slate to conduct warfare against any damn person or group he or she chooses.
    Talk about being overly broad.
    Yet you have repeatedly stated the AUMF is a specific document without any ambiguity. Which is clearly a lie.
    It never once states or names who we are declaring war against. It’s an amorphous and extremely ambiguous document to anyone concerned about executive overreach.
    Which clearly does not include simple motherfuckers like yourself. You are more than fine with the whole concept.
    As you have desperately worked to display all day here.

  267. 267
    joe from LoL says:

    3,000 dead Americans–God’s Chosen People–requires a huge global war, but one million dead Iraqis from American sanctions? *yawn*

  268. 268
    joe from LoL says:

    Here’s a crazy idea:

    Instead of funneling billions into the Military-Industrial Complex, shredding our civil liberties, and killing yet MORE foreigners, why don’t we–I don’t know–READ WHAT BIN LADEN FUCKING SAID and stop doing what he complained about?

  269. 269
    joe from Lowell says:

    @b-psycho:

    When does this all-encompassing authorization of military force END?

    We didn’t know when FDR’s wartime powers would end, either, when we were in the midst of it.

    I understand this concern, and raised it myself any number of times when the Bushies were talking about a “War on Terror,” and GSAVE. I think it’s a very good, very important thing that Obama has dropped that concept, and recognizes that we are in a war with a specific, defined enemy.

    I can’t give you a definitive answer.

  270. 270
    Anne Laurie says:

    @fasteddie9318:
    __

    Wingnut Church Lady unfair? That’s unpossible!

    I repeat: If Balloon Juice were important enough to have our own NSA “minder”, that minder would be the individual posting as ‘Church Lady’.

  271. 271
    joe from Lowell says:

    Corner Stone,

    Who attacked us on 9/11?

    Was it an inside job?

  272. 272
    Karmakin says:

    @joe from LoL: FWIW I happen to think you’re right.

    But this isn’t something to get pissed at Obama about, or even Congress. It’s probably something you need to talk to your neighbor and your co-workers about.

  273. 273
    joe from Lowell says:

    I see that question gets you spitting mad.

    Good. Expect to see it a lot, nutjob.

  274. 274
    joe from LoL says:

    @joe from Lowell:

    What question?

    I said that maybe–just maybe–we should read the reasons bin Laden is attacking us. Namely, that we kill a lot of Muslims and support horrible regimes in the Middle East and give blank checks to Israel.

    Stop doing that, no more 9/11s.

  275. 275
    Patrick Meighan says:

    “I’m not exactly sure what you’re arguing here. If the government violated al-Alwaki’s rights, he’d have the right to go to court. And you know what? He does! He can show up at the federal court house tomorrow and file papers. In fact, if you’re reading this “Imam” al-Alwaki, I totally urge you to do that. Perhaps I’m missing your point, though.”

    Of course, al-Alwaki’s parents are attempting to exercise that exact right, on his behalf. They have, in fact, as you’ve urged, shown up at the federal court house and filed papers. al-Alwaki, himself, has not done so for the completely understandable reason that the US government is currently attempting to murder him without charge or trial, and that the federal government has a well-documented history of torturing and imprisoning muslims without trial or charge… even muslims who happen to be US citizens (as does al-Alwaki).

    Of course, the Obama Administration is fervently and persistently attempting to prevent a court adjudication of the constitutional rights that this US citizen is attempting (through his parents) to assert, and also attempting to stave off the obvious potential redress of this US citizen’s grievances (that redress, of course, being a court injunction against the executive’s kill order). Nonetheless, his (and our) legal Fourteenth Amendment right to life and liberty, in conjunction with his/our First Amendment right to petition the government to halt its abuse of said rights is what serves to protect unpopular minorities against executive abuse. Compared to them, the potential public outcry which may or may not result should executive abuse against unpopular minorities reach the public eye is a dinky and ineffective shield indeed.

    Patrick Meighan
    Culver City, CA

  276. 276
    Tim I says:

    Glen, is that you?

  277. 277
    joe from Lowell says:

    Corner Stone,

    Who attacked us on 9/11?

    Was it an inside job?

    I can answer that question very easily; and thus, I see no ambiguity in the AUMF.

    Although I think I understand why you see it.

    Who attacked us on 9/11, Corner Stone? Was it an inside job?

  278. 278
    Keith G says:

    Another reason why presidents should not be able to do this without input from the other branches and a whole lot of disclosure is *campaigning*

    I have seen campaigns for governor devolve into pissing contest over who has or who will execute the most deserving criminals. Here in Harris County Texas, the claim against a former DA is that he felt the road to reelection way paved with the death sentences he could squeeze out of a willing jury pool. Can you imagine a September in a future presidential campaign.

    The worried inner circle of the incumbent is concerned about the polls. “If only there was some way to rally the base – maybe an appealing target for assassination, or two, to take out.”

    Oh wait there is, but she is just a mouthy young American woman working with Hamas in Gaza. “No problem. Let’s roll.”

  279. 279
    joe from LoL says:

    @Tim I:

    No, I am not Glenn Greenwald, though I highly admire him.

  280. 280
    joe from Lowell says:

    @Patrick Meighan:

    Of course, the Obama Administration is fervently and persistently attempting to prevent a court adjudication of the constitutional rights that this US citizen is attempting (through his parents) to assert

    This is false. You are reading a heroic narrative into him that does not exist.

    He is not attempting to assert his rights in court. He has stated that he refuses to do so.

    And you need to stop throwing around the word “murder.” Soldiers fighting the enemy in war are not murderers.

    that redress, of course, being a court injunction against the executive’s kill order

    There is no executive kill order. It is a capture-or-kill order. He can surrender himself at any time. You don’t even know this, and you’ve spent all of this effort and time defending him?

    Nonetheless, his (and our) legal Fourteenth Amendment right to life and liberty, in conjunction with his/our First Amendment right to petition the government to halt its abuse of said rights is what serves to protect unpopular minorities against executive abuse.

    Poor al Qaeda. They’re an unpopular minority. You know, like the Wehrmacht, and the other organizations we’ve fought in wars. Bad, bad Americans. Why are always picking on minorities?

  281. 281
    Keith G says:

    @joe from Lowell:

    Seriously, you’re going to keep this up? Pretending the AUMF doesn’t authorize us to make war on the organization behind the 9/11 attacks?

    That is way too simple. It was Iraq who attacked us.

    I am sure they did since we have gotten around 4000 Americans killed and many tens of thousands of Iraqis wiped out in an invasion of the shitty pile of dirt.

    No way we would have done that unless they attacked us….right.

    Please tell me that’s right….ok?

  282. 282
    Corner Stone says:

    @joe from LoL: You have done your best to obfuscate and outright lie about what the AUMF you keep citing says.
    It simply does not say what you keep saying it does. That’s easy to see from a simple cursory reading.
    You will keep trying this tact, even though it has nothing to do with anything being discussed here, because you have been lying and have been called on it.

    And no, 9/11 was not an inside job. Your mom did it.
    Just like She Did Dallas.
    But please, keep asking some stupidly ridiculous question about who did 9/11. It’s really serving you well.
    You fucking authoritarian cocksucking joke line.

  283. 283
    Patrick Meighan says:

    “He doesn’t. He was slapped down by the courts.”

    He does. That “slap down” was overturned by a higher court, two years later.

    “Here’s the NYT editorial after the Padilla decision.”

    Made moot by the higher court’s subsequent Padilla decision.

    So I ask again: if the former president had the legal right to unilaterally declare an American citizen (on American soil) to be an “enemy combatant” and held without charge, what’s legally preventing the current president (or a future president) from unilaterally declaring an American citizen (on American soil) to be an al Qaeda member and executing him without charge?

    Patrick Meighan
    Culver City, CA

  284. 284
    joe from Lowell says:

    Corner Stone, who attacked us on 9/11?

    Was it an inside job?

    Why, instead of answering the question, did you start posting under a variation of my name, and explaining that the United States had it coming?

    I see you’ve got a little buddy now.

    I’m not interested, Troofers. Jerk each other off with your “al Qaeda was framed” bullshit all you want. Leave me out of it.

    This is a debate about the proper delineation of presidential war powers. Nobody has raised a point about that in 3/4 of an hour.

    I’m out.

  285. 285
    Karmakin says:

    @Keith G: Yes I can imagine that. And I can even imagine that working.

    What people don’t seem to realize is instead of being an indictment on our politicians, it’s an indictment on all of us, or at least our society as a whole that puts our own health and well-being in front of the health and well-being of others.

    As a side note, it’s a similar deal with the complaining about the Citizens United ruling. The reason why corporate money is so damaging is that the message that they want to send out about divisiveness and greed and selfishness is one that resonates with a majority of the voting population.

  286. 286
    Corner Stone says:

    @joe from LoL: Slink away if you must.
    You’ve been called to the carpet for the pathetic liar you are, and have got nothing.
    See you chump.

  287. 287
    glasnost says:

    @ http://www.balloon-juice.com/2.....nt-2070559 ,

    You’re the scariest person I have ever met on Balloon Juice precisely because you’re so plugged in and faux-rational.

    You can close your eyes and put your fingers in your ears, but this is illegal bullshit and you know it. The guy is a US citizen, and any attempt to kill him other than immediate self-defense from a human being being physically endangered by him – right now in real time, with a gun, bomb, or sharp object – is a violation of the constitution.

    The bright line is this: you don’t use the military to kill US citizens unless the US citizen is shooting at a US soldier.

    Period.

    That’s what the “inalieable right.. to life, liberty” in the Preamble of the Declaration of Independence is all about.

    You can twist the law, the AUMF, and anything else you want to mean anything you want. John Yoo did it. You can do it. The law is a tool in your grip. But you’ve twisted the law at right angles to the rights of US citizens that this country was founded to defend.

    This isn’t a rebellion, or an invasion. Habeus Corpus has not been suspended. Anyone who thinks the AUMF allows the killing of US citizens by the US Army is a traitor to this country. No law can make such an act constituitional; any law making such legal is an illegal law.

    You’ve fundamentally accepted the rights of the security state to assume the fundamental dictatorial power over the citizens of this country. There’s no redeeming you. You are unfit to serve this country.

  288. 288
    joe from Lowell says:

    Hey, look, a point about presidential powers.

    @Patrick Meighan:

    He does. That “slap down” was overturned by a higher court, two years later.

    Not exactly. They ruled that he could be held by the military, but his right to challenge his detention in civilian court has already been established in Hamdi. As the very link you provide states.

    So I ask again: if the former president had the legal right to unilaterally declare an American citizen (on American soil) to be an “enemy combatant” and held without charge…

    You’re fudging here. He can challenge his detention in civilian court. I stated, and your own “evidence” proves, that the president’s war powers give way to civilian law, in which people can challenge the presidents’ authority in civilian courts, in the United States. You stated that it does not. Your own link proves me right – access to civilian courts and other branches’ restraint on presidential war power is guaranteed in the United States.

    what’s legally preventing the current president (or a future president) from unilaterally declaring an American citizen (on American soil) to be an al Qaeda member and executing him without charge?

    The ability to challenge the detention in court, and the application of constitutional protections, which exist for everyone in the territory of the United States, as I’ve answered several times now.

    Please, read Hamdi. Read Boumediene. These rights were established during the Bush era, by a very conservative court.

  289. 289
    joe from Lowell says:

    @Corner Stone:

    @joe from LoL: Slink away if you must.

    I’ve answered every question asked of me, and every point raised to me.

    You, on the other hand…

    Speaking of slinking away, why won’t you answer the question?

    Who attacked us on 9/11?

    Was it an inside job?

    Why does this question piss you off so much?

  290. 290
    Corner Stone says:

    @joe from LoL: As with most things you post here, you’re kidding yourself if you think I care about you asking me this question over and over and over and over and over.
    Your mom did it. Just like she did the entire offensive line for your high school football team.
    You can keep asking this but you’ll just continue looking like the fool you are.

  291. 291
    glasnost says:

    These …. people…. will wave layers of rationalization, fake precedent, “agonizing choices”, and false analogies in front of the audience again and again. The desire to submit – to the experts, to the force of character, to the seriousness of purpose, to the “he’s probably a bad guy anyway”, the desire to avoid arguments on principle… they wear liberals down and they wear the rights of the citizens of this country away to nothing.

    This isn’t complex. It isn’t agonizing, except to people who have long ago lost their way. It’s the simplest principle I can name about this country.

    Before the government deprives an American citizen of life, liberty, or property, that citizen must recieve due process of law.

    If Alwaki is Bin-Laden 2.0 and you need to predatorstrike him, you take it to a judge. In a public court of law, with the evidence presented for the public to see. You render your process and your decisions accountable. You don’t state secrets it, you charge the man and then you find him guilty, in absentia if necessary, and then you decide how to enforce the verdict.

    Otherwise, you have come to accept a fascist state, and you’re too far down in – sorry, but it’s appropriate – the fucking veal pen to understand the core principle of democracy and the Western concept of law.

  292. 292
    joe from LoL says:

    @joe from Lowell:

    We were attacked by aggrieved Muslims, who, honestly, didn’t do anything worse than the United States has done since 1945 on a much grander scale.

  293. 293
    joe from Lowell says:

    @glasnost:

    You’re the scariest person I have ever met on Balloon Juice precisely because you’re so plugged in and faux-rational.

    Translation: You can’t even begin to formulate an argument to defend your position, so you’re going to call me names.

    Yeah, I get that a lot.

    You can close your eyes and put your fingers in your ears, but this is illegal bullshit and you know it.

    Oh, I KNOW it? Fuck you.

    The guy is a US citizen, and any attempt to kill him other than immediate self-defense from a human being being physically endangered by him – right now in real time, with a gun, bomb, or sharp object – is a violation of the constitution.

    Not if he joins up with our wartime enemy. Then, he becomes our wartime enemy. This is a blindingly obvious point. It was true in past wars, and it’s true in this war.

    The bright line is this: you don’t use the military to kill US citizens unless the US citizen is shooting at a US soldier.

    That’s not even close to true. If he’s a combat soldier, he’s fair game, but if he’s a general, he’s not? That’s nonsense.

    This isn’t a rebellion, or an invasion. Habeus Corpus has not been suspended.

    That language is about what happens in US territory.

    Anyone who thinks the AUMF allows the killing of US citizens by the US Army is a traitor to this country

    Fuck you. It’s a good thing your scrawny ass is typing on a screen.

  294. 294
    glasnost says:

    Just to make it clear, Joe from Lowell – I’m talking to you.

    John Cole – I’d like to see something like my 9/27 1043 PM comment on a front page post (no need for any kind of hat tip). I think it gets to the point of what you haven’t been able to elaborate.

  295. 295
    joe from Lowell says:

    @Corner Stone:

    @joe from LoL: As with most things you post here, you’re blah blah blah blah blah blah blah

    Just an FYI, the fact that you go into a rage and won’t answer the question doesn’t become any less clear when you beat your chest, monkey.

    Piss off, Troofer. You’ve given the game away, and should just go quietly now.

  296. 296
    Corner Stone says:

    @joe from LoL: Aw man. I’m sorry to keep associating you with the fucking joke that is joe from Lowell. But I can’t help myself from changing his handle to joe from LoL.
    Because he’s just such a fucking clueless douchebag.
    So, I’d like to change my response but the AUMF clearly indicates I can take whatever action I deem necessary against clearly delineated evildoers as defined by the President.
    And joe from Lowell is obviously one of those enemy combatants.

  297. 297
    joe from Lowell says:

    @Corner Stone:

    As with most things you post here, you’re kidding yourself if you think I care about you asking me this question over and over and over and over and over

    Uh-huh. Yes, your utter lack of concern really comes through when you spoof my name and insult my mother.

    Snort.

    But you misunderstand. I’m not doing this to dig you. I’m going it to discredit you. I’m doing this to show anyone who’s reading this exactly what you are, and both your silence and your “your mother” act are just as good as if you actually answered the question.

  298. 298
    Corner Stone says:

    @joe from LoL: Hey, just because the AUMF clearly states your mom is a whore, that has nothing to do with me.

  299. 299
    joe from LoL says:

    @Corner Stone:

    It’s ok, I chose this name because it was so damn funny. This guy is a Fauxgressive who, inbetween slurps on Obama’s cock, logs on here to defend corporate policies and home and imperialism abroad.

    Even more dangerous than a real right-winger, because he’s a wolf in sheeps clothing.

    Still hasn’t answered any of my points about bin Laden.

    Hey, Joey, did you ever actually READ bin Laden’s declaration of war on the US?

  300. 300
    joe from Lowell says:

    @glasnost:

    John Cole – I’d like to see something like my 9/27 1043 PM comment on a front page post (no need for any kind of hat tip).

    For my part, what I really want is to direct.

    Delusional much?

  301. 301
    joe from Lowell says:

    Here, John, I think you should put this on the front page:

    “You, with your…your…arguments and your….your…logic and your examples and evidence! And law! You’re just wrong! You’re wrong, and I’m right! And you know it!

    God, I’m awesome!”

    No need for a hat tip.

  302. 302
    burnspbesq says:

    @maus:

    The masturbatory obsession with Rule of law is but one of many reasons why I’m not a conservative.

    You’ve totally lost the plot.

    Conservatives are the ones who don’t give a shit about the rule of law.

    We’re the ones fighting the desperate rearguard action to keep some fragments of it alive.

  303. 303
    Corner Stone says:

    @joe from LoL:

    Uh-huh. Yes, your utter lack of concern really comes through when you spoof my name and insult my mother.

    Thank goodness. You finally actually understand something clearly.
    You are a liar and your mom is a whore. The AUMF clearly states that. There is no ambiguity about what it says.

  304. 304
    joe from Lowell says:

    This guy is a Fauxgressive who, inbetween slurps on Obama’s cock

    What is it with firebaggers and gay sex?

  305. 305
    joe from LoL says:

    @joe from Lowell:

    Again, have you ever read bin Laden’s reasons for declaring war on the United States?

    Hint: He didn’t say he “hates our freedoms”.

  306. 306
    burnspbesq says:

    @Egypt Steve:

    1. So what if he’s been “designated” a terrorist? I demand that, before guilt is found, then proof be submitted in open court, with the accused having full opportunity to defend himself.

    Demand all you want. That’s not currently the law. Maybe it should be, but it isn’t.

  307. 307
    Patrick Meighan says:

    “This is false. You are reading a heroic narrative into him that does not exist.”

    a) Here’s the court filing, filed by al-Awlaki’s father, on al-Awlaki’s behalf.

    b) The Fourteenth Amendment is not just reserved for US citizens with a “heroic narrative,” or for “innocent ice-cream salesm(e)n”. It’s for all US citizens. If this particular US citizen has committed a crime that merits his incarceration or execution, let the US government charge him with a crime and prove it in a court of law.

    “And you need to stop throwing around the word “murder.” Soldiers fighting the enemy in war are not murderers.”

    Establishing that a US citizen is an “enemy in war” takes more than a page at Wikilinks, filled with unproven assertions from executive sources. Or at least it ought to. And until such time as said US citizen’s guilt of a capital crime is proven in a court of law, anyone who kills said US citizen (or orders that killing) is a murderer in my book.

    “There is no executive kill order. It is a capture-or-kill order. He can surrender himself at any time. You don’t even know this, and you’ve spent all of this effort and time defending him?”

    a) Neither you nor I know if he can safely “surrender himself” at any time, because the specifics of President Obama’s order have not been made public, and President Obama refuses all requests to reveal the specifics of that order, as well as the process by which the order was decided.

    b) On the strength of what, specific, charge should he “surrender himself”? Doesn’t a US citizen typically need to be charged with a crime before he or she surrenders?

    c) I’m not defending al-Awlaki, the person. I’m defending the right of any US citizen (including this one) to retain his/her life, liberty and property unless that right be revoked from him/her by due process of law.

    Patrick Meighan
    Culver City, CA

  308. 308
    burnspbesq says:

    @Egypt Steve:

    But the President can’t just declare the “entire world” a battlefield and use the Military as a death squad.

    Before you assert that so confidently, you might want to go back and re-read the AUMF.

  309. 309
    joe from LoL says:

    Hey Joey, have you ever read bin Laden’s declaration of war on the United States?

    Why does that question piss you off so much?

  310. 310
    burnspbesq says:

    @Patrick Meighan:

    Please cite the case(s) or statute(s) which declare(s) that a US citizen’s rights/protections from US executive power when that US citizen resides in domestic territory is in any way distinct from a US citizen’s rights/protections from US executive power when that US citizen resides in foreign territory.

    The Suspension Clause, as interpreted by the Supreme Court in Hamdan and Boumediene. There’s no insurrection going on anywhere in the United States, so there can be no suspension of the writ of habeas corpus.

  311. 311
    burnspbesq says:

    @Patrick Meighan:

    The constitution guarantees the right of each citizen to petition the court government for redress of grievances.

    Your copy of the constitution is defective. Return it and get your money back.

  312. 312
    burnspbesq says:

    @Sly:

    Excellent analysis. I tried to make the point in the earlier thread that the Government’s response explicitly said that the court didn’t have to reach state secrets because it could dismiss either for lack of standing or lack of justiciability (political question). But standing and political question don’t lend themselves easily to sound-biting, and aren’t sexy enough for certain polemicists.

  313. 313
    Socraticsilence says:

    @joe from LoL: I have and rationally addressing his concerns without first acting to eliminate his organization is similar to changing domestic medical policy in order to placate the Army of God or technology policy to answer the worthwhile criticisms of the Unabomber.

    Let’s address his primary concern (you know apart from his the US shouldn’t support regimes I don’t like schpiel because frankly while I can see validity to his criticisim of the current ruling autocracies its hard to take serious when his basic alternative is a theocracy that would return the region in pre-Millenial-1000 not 2000- status- it has all the credibility of Pol Pots critique of the capitalist state) US occupation of Muslim Holy Land- am I for vacating said land- sure- but I would note that essentially Bin Laden is criticizing us for establishing bases at the request of the ruling authority in order to protect not just Oil fields but the holiest cities in Islam from invasion by a power they (and Bin Laden himself) regards as heretical- namely the majority Shia (though Sunni run) nation of Iraq.

  314. 314
    Patrick Meighan says:

    “The ability to challenge the detention in court, and the application of constitutional protections, which exist for everyone in the territory of the United States, as I’ve answered several times now. Please, read Hamdi.”

    Okay, an interesting sequence of sentences, given that the Hamdi case dealt specifically with a US citizen residing *outside* the territory of the United States at the time that the Bush Administration captured him and declared him to be an “enemy combatant,” without constitutional rights. As you note, then, the court in Hamdi “smacked down” the Bush Administration’s attempt to indefinitely detain a US citizen (captured outside US territory) on the basis of the Bush Administration’s unilateral determination that said US citizen was an “enemy combatant”.

    So in light of the limits the Hamdi ruling imposed on the previous executive’s power to unilaterally declare a foreign-located US citizen to be an enemy combatant, how can it be the case that this current executive retains unlimited power to unilaterally declare a foreign-located US citizen to be an al Qaeda member?

    Patrick Meighan
    Culver City, CA

  315. 315
    burnspbesq says:

    @b-psycho:

    Joe, one question: When does this all-encompassing authorization of military force END?

    When Congress revokes it. SATSQ.

  316. 316
    burnspbesq says:

    @glasnost:

    Do you think in such absurdly simplistic terms about everything?

  317. 317
    Patrick Meighan says:

    “The Suspension Clause, as interpreted by the Supreme Court in Hamdan and Boumediene. There’s no insurrection going on anywhere in the United States, so there can be no suspension of the writ of habeas corpus.”

    Thanks.

    Is it your reading of Hamdan that the US executive can do whatever the hell it wants to US citizens whom are located outside of US territory, and whom the US executive unilaterally declares (pursuant to the AUMF) to be affiliated with those who planned, authorized, committed or aided the 9/11 attacks?

    Patrick Meighan
    Culver City, CA

  318. 318
    burnspbesq says:

    @Patrick Meighan:

    Is it your reading of Hamdan that the US executive can do whatever the hell it wants to US citizens whom are located outside of US territory, and whom the US executive unilaterally declares (pursuant to the AUMF) to be affiliated with those who planned, authorized, committed or aided the 9/11 attacks?

    No. Hamdan doesn’t speak to that question. To my knowledge, no case speaks to that question. I know what I think the answer should be, but I’m in no position to impose that answer on anyone.

  319. 319
    burnspbesq says:

    @Patrick Meighan:

    Elaborating on my #318, as a general proposition the unaccountable exercise of executive power makes me queasy. The countervailing considerations in the case of executive declarations that particular individuals are members of an organization that is within the scope of the AUMF are the need for expediency and the need to protect intelligence sources and methods (I worry less about protecting particular pieces of data).

    When I balance those considerations, I end up with a tribunal that looks a lot like the FISA Court.

    That said, what I’d really like is for Congress to revoke the AUMF. Then we go after guys like Alwhoosis under a criminal justice paradigm.

    Democracies are supposed to fight terrorism with one hand tied behind their back. That’s part of what it means to be a democracy. We lost the war on terror the minute we started acting like terrorists.

  320. 320
    Patrick Meighan says:

    “No. Hamdan doesn’t speak to that question. To my knowledge, no case speaks to that question.”\

    Brainfart. I said Hamdan. I meant Hamdi. I’m sorry. But let’s reboot:

    You don’t believe that Hamdi speaks to the question as to whether or not the US executive has sole, unchecked discretion in its handling of US citizens whom the US executive captures abroad and whom the US executive unilaterally declares to be affiliated with those referenced in the AUMF?

    Patrick Meighan
    Culver City, CA

  321. 321
    burnspbesq says:

    @Patrick Meighan:

    I think my 318 is unchanged, and I know my 319 is unchanged.

  322. 322
    mclaren says:

    @Linda Featheringill:

    It is probably unwise to take a position where you don’t give a shit about legal arguments. It is the rule of law that protects us from tyranny.

    Bizarre self-contradiction of the year.

    So we must carefully discuss the legal technicalities of throwing out the constitution of the united states which expressly forbids the president from ordering the murder of a U.S. citizen without charges and without a trial.

    I don’t give a shit about legal arguments which purport to explain why we can tear up the constitution of the united states and wipe our asses with it.

    That statements preserves the rule of law, it does not threaten the rule of law. Get a clue.

  323. 323
    mclaren says:

    @BTD:

    I like this post actually.

    Of course you do, Armando, because it puts you right back in 1930s Germany where you clearly fell right at home — concocting sophistical justifications for any illegal law that mandates grossly unconstitutional atrocities.

    …as a general point, I think it is a strong argument for changing the policy and attempting to set up a type of review process for such orders.

    So the Fuhrer president has unlimited powers and can order the assassination of anyone anywhere in the world without charges or a trial and he never has to explain why or provide evidence even to show that it was necessary because of “state secrets” and “national security”…but we nonetheless need to “set up a type of review process for such orders.”

    This is what happens when compulsive pathological liars like Armando (BTD) try to justify unjustifiable atrocities. They wind themselves up in knots of self-contradiction.

    Either the president is a tyrant who is beyond the law and the constitution doesn’t apply to him…or he isn’t. If he is beyond the law the constitution doesn’t apply to him, as BTD has repeatedly argued, what need for a review process? The president can select people to kill to throwing darts at a map. “I hit Boise Idaho! Go send an assassination team to kill somebody there!”

    If the president is not above the law the the sixth amendment of the constitution forbids him from ordering the extrajudicial murder of an American citizen without charges and without a trial.

    You can’t have it both ways, Armando. Either the Reich can kill Jews for the crime of being Jewish, or the Reich must follow the law…but trying to cover up that kind of unconstitutional atrocity by advocating a “review process” is the most contemptible kind of hypocrisy. You’re just trying to create a transparently inadequate fig leaf for your own gross violations of the law.

  324. 324
    mclaren says:

    @Omnes Omnibus:

    @BTD: I feel your pain on this one.

    Of course you do. That’s the pain of an empty space where a normal human being would have a conscience.

    You’re going to miss that conscience a lot more as time passes. As the presidential assassinations become more and more frequent, your pain will get more and more intense. And then when the DHS starts assassinating people without charges and without a trial, in the street, your pain will really start to kick in.

    When some guy who isn’t a member of DHS but is merely associated with them walks up to you and slips a knife in you “for the good of the state”…that’s when you’ll start to realize what pain really is. And when you lie on the floor bleeding and you hear the guy shout “Nothing to see here, folks, just a targeted killing of an enemy combatant” that’s when you’ll finally understand the cost of giving up your conscience.

    All the death squads in history, all the police states of the 20th century, all the gulags we learned to despise in our history books, started exactly this way. One targeted killing of an enemy of the state without charges by the supreme leader. Then another..and another. Soon, the targeted killings become routine — so routine that ordinary functionaries and apparatchiks carry out the murders. And eventually, no one even notices when the NKVD kick in the door of your apartment and hurl you out the window for the crime of writing something critical of the supreme leader.

    That’s the pain you feel. It’s the pain of emptiness where you should have a soul.

  325. 325
    gopher2b says:

    I’m pretty sure the counter-legal argument is this:

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

    It’s kind of, like, a bedrock and stuff.

  326. 326
    FlipYrWhig says:

    @glasnost:

    John Cole – I’d like to see something like my 9/27 1043 PM comment on a front page post (no need for any kind of hat tip). I think it gets to the point of what you haven’t been able to elaborate.

    That was the funniest thing I’ve come across in comments since that guy who was mad that people were joking about Balloon Boy and said “the helicopters weren’t laughing.”

  327. 327
    mclaren says:

    @JC:

    It is the ‘refusing to explain why’ that’s the kicker.

    No it is isn’t. That’s so stupid it beggars the English language. Passing dogs in the street die from the fallout of that kind of gross stupidity.

    Suppose the president orders someone assassinated and explains “Because he had brown eyes.”

    Then you’re okay with that?

    Seriously?

    The issue here has nothing to do with the president refusing to explain and everything to do with Amendment five of constitution forbidding the government from murdering someone without charging him with a crime and indicting him and trying him first.

    If the president can order anyone murdered without charges and without a trial, the constitution just went away an the rule of law vanished. If the president can do that, he can do anything — make a horse a senator, marry his own sister, cut her baby out of her womb and eat it, anything.

    Claiming that what Obama wants to do is legal puts us on the road to Caligula, where the president is an unccountable godlike tyrant and can do anything to anyone anywhere and the soulless bully worshipers like BTD and burnspbesq will nod their bobble heads in assent and falsely call it legal.

  328. 328
    300baud says:

    @Patrick Meighan:

    That’s all very well put. Thanks for making the case.

    Having lived in places where rule of law is much weaker than in the US, I can’t help but think the people who are indifferent to it are deeply ignorant.

    One host-sister who lived with my family in the US was out riding with my mom just a few weeks after she arrived. There was bad weather, and my mom ended up in a multi-car pileup.Nobody hurt, but there was a lot of bent metal. My host-sister had a full-on panic attack. Not because of the accident, but because my mom intended to wait patiently until the police arrived.

    In her country, she’d been trained since childhood not to wait for the police in that situation, but rather, to get the fuck away and hide until things blew over. There, the laws were byzantine, allowing the police to do what they pleased with people who fell into their power.

    That’s what you get when you don’t care about the rule of law. There’s only one alternative, and in the long run it’s never pretty.

  329. 329
    mclaren says:

    @burnspbesq:

    Elaborating on my #318, as a general proposition the unaccountable exercise of executive power makes me queasy.

    Clearly not, since you’ve repeatedly argued in favor of unaccountable exercise of unlimited executive power far in excess of even the dictatorial tyranny of William the Conquerer or King James.

    The countervailing considerations in the case of executive declarations that particular individuals are members of an organization that is within the scope of the AUMF are the need for expediency and the need to protect intelligence sources and methods (I worry less about protecting particular pieces of data).

    So let me get this straight…

    “Expediency” and the “need to protect intelligence sources” makes it legal to tear up the constitution (amendment five) and wipe our asses with it?

    Good legal thinking there, buckaroo. I look forward to the day soon forthcoming when the police latch onto your genius legal doctrine. “We shot that guy on the street without charges and without a trial and even though he turned out to be wrong guy, it was legal because of the need for expediency and the need to protect our confidential cokehead informant who said that guy was a drug dealer after we paid our cokehead informant $1500.”

    Great thinking there, chief. You’re going to like that legal doctine a lot when it hits your neighborhood courtesy of your local police.

    When I balance those considerations, I end up with a tribunal that looks a lot like the FISA Court.

    TRANSLATION: ♫ I ♥ star chambers! ♫

    I bet you do, burnspbesq, you sure loves you some star chamber goodness. Secret evidence and secret trials — evidence conveniently obtained from torture, so you can get anyone to say anything you want, and sentences conveniently handed down in secret and carried out in the dead of night, so no one sees the results of these kinds of extrajudicial atrocities.

    As Paul Craig Roberts remarks,

    The English-speaking world has not seen such power since the 16th and 17th centuries when the Court of Star Chamber became a political weapon used against the king’s opponents and to circumvent Parliament. The Star Chamber dispensed with juries, permitted hearsay evidence, and became so reviled that “Star Chamber” became a byword for injustice. The Long Parliament abolished the Star Chamber in 1641.

    Yet you adore the star chamber. And you call yourself a lawyer?

    You’re a shitstain on America, burnspbesq, and a disgrace to the profession of lawyer. You’re a lump of excrement that sticks in the craw of the American legal system. You’re an enemy combatant actively working to destroy America from within by wrecking the rule of law, and you need to be targeted for a quick extrajudicial killing.

    How ya like them apples, burnspbesq?

    Don’t worry, we’ll give you a quick FISA-court-type star chamber review before we shoot you in the head and throw your corpse in the river.

    That said, what I’d really like is for Congress to revoke the AUMF. Then we go after guys like Alwhoosis under a criminal justice paradigm.

    No you don’t. You love the AUMF. You argue in favor of it. Make up your mind. Either the AUMF is unconstitutional, or it isn’t. You can’t have it both ways. You can’t claim it makes legal sense to throw out amendment five of the constitution mandating charges and a trial before putting someone to death, and then at the same time say, “Okay, it’s legal as longa s we have some secret court review of this unconstutional process.” An extrajudicial unconstutitional atrocity does not suddenly become “legal” just because some bogus kangaroo court signs off on it — that was proven forever and definitively with the Nurmberg trials of the Nazi judges who did exactly what you’re describing and claimed it made their unconstutitional death sentences against Jews legal.

    It didn’t. The Nuremberg tribunal settled that question. Case closed, end of discussion.

    Democracies are supposed to fight terrorism with one hand tied behind their back. That’s part of what it means to be a democracy. We lost the war on terror the minute we started acting like terrorists.

    So why are you arguing in favor of unconstitutional death squads?

    And by the way, buddy…we didn’t lose the war on terro the minute we started acting like terrorists. I’ve never acted like a goddamn terrorist. I have fought to the death, tooth and nail, against each and every unconstitutional abuse of power since 9/11. And soulless conscienceless lawyers like you have ridiculed me for it every step of the way. Lawyers like you have called me every name in the book and accused me of every crime imaginable and unimaginable for daring to speak out against these kinds of unconstitutional atrocities, whether it be warantless wiretapping or kidnapping American citizens without charges and hurling ’em into a torture chamber without a trial, or ordering the assassination of American citizens without charges and without a trial.

    No, burnspbesq, we’re losing the war on terror because soulless bloodsucking conscienceless parasite lawyers like you and BTD nod your bobble heads in agreement with whatever illegal unconstitutional atrocity some sycophant in the president’ Office of Legal Council dreams up as a legal fig leaf for the kind of torture and murder that even the judiciary of King James I balked at and refused to sign off on.

    You need to learn the law, burnspbesq. In Hamdi, Justice O’Connor wrote for the majority when she said:

    “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. (..) …Even the war power [of the President] does not remove constitutional limitations safeguarding essential liberties.”

    There is no liberty more essential to any citizen than the right to life.

    You’re a coward and a quisling, burnspbesq, and you should emigrate to Myanmar. You’d fit in well there dreaming up far-fetched legal justification for the torture and murder of citizens killed without charges and rounded up and brutalized without a trial.

  330. 330
    joe from LoL says:

    Jooooooooooooooey!

    Where are you joey?

    Scared?

    Sulk off to bed?

    Something tells me we won’t ever see your corporate apologist ass here ever again.

  331. 331
    mclaren says:

    @Patrick Meighan:

    So in light of the limits the Hamdi ruling imposed on the previous executive’s power to unilaterally declare a foreign-located US citizen to be an enemy combatant, how can it be the case that this current executive retains unlimited power to unilaterally declare a foreign-located US citizen to be an al Qaeda member?

    Because Barack Obama is now committing high crimes and misdemeanors. His assasination order is no more legal than a thrillseeker liquor store holdup artist who shoots the cashier in the head with a .357.

    This has been another issue of Simple Answers to Simple Questions.

  332. 332
    Bobby Thomson says:

    @burnspbesq:

    Nuance, ambiguity, and gray areas are completely lost on you.

    Actually, I understand nuance very well. And I don’t mind it when people flesh out the details. Still, if your basic thesis can’t be stated cleanly and concisely, you are, as a rule, full of shit.

    Some things can’t be reduced to four bullet points. The issues in this case are among those things.

    OK, enlighten me. Or you could continue to go ad hominem.

  333. 333
    Bobby Thomson says:

    @gopher2b:

    I’m pretty sure the counter-legal argument is this: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” It’s kind of, like, a bedrock and stuff.

    Insufficiently nuanced.

  334. 334
    mclaren says:

    @Corner Stone:

    Yet [Joe from Lowell] ha[s] repeatedly stated the AUMF is a specific document without any ambiguity. Which is clearly a lie.

    Lies are Joe from Lowell’s stock in trade. Without lies, he woudn’t exist. He’d disapper in puff of sophistry.

    [The 2001 AUMF] never once states or names who we are declaring war against. It’s an amorphous and extremely ambiguous document to anyone concerned about executive overreach.

    More than that: the 2001 AUMF does not declare war. It merely authorizes the “use of force.” That could be anything from dragging in some terrorist and bitch-slapping him to nuking Saudi Arabia.

    A declaration of war, as required by Article 1 section 8 of the constitution, has a specific form. Check the historical record. It goes like this: “We, the congress of the united states of America, hereby declare that a state of war now exists between [fill in name of nation] and the united states of America as of [fill in date].”

    War as defined today in the law is a legal doctrine that only applies to nation-states. It arises from the Treaty of Westphalia, which legally codified the framework according to which the state obtained a monopoly on violence.

    Prior to the Treaty of Westphalia in 1648, clans went to war with one another…families went to war with other families…towns went to war with other towns. It was chaos. Take a look at the history of the Thirty Years’ War. The back-and-force tit-for-tat revenge killings went on and on, decade after decade, never ending, because the clan feuds were extralegal and extrajudicial.

    The Treaty of Westphalia in 1648 ended that and gave the state a monopoly of legal violence. Now, these geniuses like BTD and burnspbesq and Joe from Lowell want to tear up the entire legal framework of the Treaty of Westphalia that has been erected and codified by precedent and law over the last 350 years and take us back to the bad old days of clan feuds, when one family could declare war against another family, or even against a single person.

    That’s what the 2001 AUMF does and that’s yet another reason why it’s completely illegal. It violates the entire framework of legality set up for 350 years since the Treaty of Westphalia.

    Only states can declare war, and only on other states. A nation-state cannot declare war on a family, or a town, or one person, or the Rotary Club. If the state wants to legally use violence against a family or a town or one person or the Rotary Club, the state must use legal means to charge and try and convict those groups or individuals and then punish them according to the law.

    The United States can’t just say “We now declare war against the Brown Family on 221 Westside Avenue” and then use helicopters and tanks to burn their house down and kill everyone inside. If the state wants to use legal violence against the Brown family, it just charge them with a statutory crime, present evidence, arraign them, try them, and convict them in a court of law before a jury of their peers.

    The united states of America cannot declare war on some non-nation-state group like Al Qaeda any more that the USA can declare war on he Brown family or the town of Craters of the Moon Idaho or your dog. For 350 years, the legal framework of the Treaty of Westphalia has prohibited that.

    “Oh, but Al Qaeda can declare war on America!” you shriek. No, it can’t. Al Qaeda can conspire to kill Americans. That’s a crime. Charge then with a crime, try them in court, convict them and sentence them — preferably to death, once you get the conviction. Put the convicted Al Qaeda members who’ve been tried and found guilty of murder in an evacuated skyscraper and set it on fire and tell the bastards, “You can burn or you can jump. Have a nice day.”

    I’d use the replay button on video of that one.

    But that’s all you can do. Groups or individuals cannot legally declare war on the United States of America — only nation-states can delcare war, and only on other nation-states. That’s been the legal rule in force for 400 years.

    These fools who think it’s a brilliant move to remove the state’s monopoly on legal violence don’t seem to realize what that means…it means a return to the eternal clan feuds of the 1500s. It means families killing other families in revenge for generation after generation. It means entire towns depopulated by internecine feudal warfare, it means having to live inside your home as a barricaded fortress because your neighbor has decided to declare war on your family and is trying to kill you.

    That was the way life was lived in Europe for hundreds of years, until the Treaty of Westphalia.

    Giving the nation-state a monopoly on legal violence was a very good idea. It hugely reduce the amount of violence in society — and, yes, violence in European society decreased steadily and dramatically over the last 1000 years. See Stephen Pinker’s article “A History of Violence” for the graphs and charts that prove it.

    The Treaty of Westphalia which gave the nation-state a monopoly on legal violence is a large part of the reason for that continual decline in interersonal volence in the West ove rthe last 500 years.

    Now geniuses like Joe from Lowell and BTD and Burnspbesq want to remove that state monopoly on legal violence and make it legal once again for anyone to declare war on anyone else…the USA can declare war on Anwar Al-Awlaki, Al Qaeda can declare war on the USA, the White House can declare war on the city of Pittsburgh, the FBI can declare war on the Brown family at 221 Westside Avenue, your neighbor can declare war on the local 7-11, Joe Bob who lives in the trailer park down the street can declare war on your dog.

    And it’s total war, baby. It won’t end until there’s nothing left but smoking ruins.

    Bad idea.

    Very very very bad idea.

  335. 335
    mclaren says:

    @Bobby Thomson:

    Actually, I understand nuance very well. And I don’t mind it when people flesh out the details. Still, if your basic thesis can’t be stated cleanly and concisely, you are, as a rule, full of shit.

    You just nailed burnspbesq in two sentences.

    Shorter burnspbesq: Might makes right.

    That didn’t work out so well for Thrasymachus in Plato’s Republic and it didn’t work out real great for Pol Pot in Cambodia or Mussolini in Italy or Nicolae Ceauşescu in Romania. But I’m sure burnspbesq has a wonderfully nuanced argument to take care of that.

  336. 336
    mclaren says:

    @glasnost:

    [Joe from Lowell is] the scariest person I have ever met on Balloon Juice precisely because you’re so plugged in and faux-rational.

    You haven’t met BTD (Armando) and burnspbesq, then. These guys are lawyers. They’ve studied the constitution of the united states.

    And they spend their time ginning up sophistries to explain why it’s legal to torture and murder American citizens without charges or a trial.

    You haven’t met soonergrunt either. This guy is a member of the united states armed force who swore an oath to preserve, protect and defend the constitution of the united states, and now he’s wiping his ass with it every day and cheerfully advocating the assassination of any american citizen anywhere at any time by any goon with a gun in the American military.

    When the death camps come and your sister and brother are herded into the gas chambers, guys like soonergrunt will be the guards, and guys like BTD will stoke the crematoria.

  337. 337
    DPirate says:

    …because he’s been designated by the US and the UN…

    Is this supposed to mean something to anyone other than the designators? What does the UN have to do with it, anyway? Remeber we have or had many people designated as terrorists who aren’t and have been let go, as well as some who will not be let go whether innocent or not. Remember when people who attended a leftist meeting were (and in fact still are) designated radicals or communists and actions taken against them based on this designation. Simpling saying something doesn’t make it true, no matter what appeals to authority you care to make or how many times you repeat it.

    You say he is denied habeas corpus because he isn’t denied habeas corpus (or any other constitutional protections). And that he isn’t being denied them because he hasn’t yet submitted to the power which wants to destroy him. What can one say about this? Everyone knows he will disappear into a dark hole if he ever turns himself in. No legal argument about how right that is makes any sense in the real world. The same applies to the idea that his father cannot defend him in court. People can be tried in absentia, can they not? But of course he will not be tried, and that fact is what all the arguing is about.

    The rest of what you’ve written seems to be an appeal for the judiciary not to step on the toes of the other two branches. Are they just supposed to call “shotgun” on everything to settle who gets to decide?

  338. 338
    Kal says:

    “There are legions of judges and lawyers, both on the prosecutorial and defense side, that work day in and day out at this stuff and in good faith.”

    Kneejerk opposition to death squads is not what’s “irresponsible”. What’s irresponsible is believing that just because a bunch of people who seem like nice guys in ordinary life have convinced themselves that what they’re doing is right, it can’t possibly be anything so strong as “evil”. “It can’t be evil because professionals are acting in subjective good faith” is a total abdication of moral responsibility at the level of the Milgram experiments, or hate to say it but have to, 30’s Germany. I mean, has this guy never heard the phrase, “banality of evil”?

    John, I would concur with an earlier commenter who said your correspondent is, in fact, wrong and evil, at least here. I wouldn’t order a CIA hit on him, but if I met him in person I might slap him.

  339. 339
    Kal says:

    I didn’t know anyone on the Mavi Marmara, but I know folks who’ve been on convoys to Gaza or are planning to go on future boats. My local Congresscritter, Jerry Nadler, called for people who do that to be charged with material support of terrorism. So forgive me if I take the issue of whether the state has a right to kill anyone who its executive decides is the enemy a little personally.

    I’m sure the “regular reader” has been trained so thoroughly to identify with power and the powerful, who “don’t deserve to have their positions painted as ‘evil'”, that s/he can’t even conceive of being on the wrong end of the assassination policy. But I have a little more sympathy for the people (beyond Awlaki) who might lose their lives if this gets upheld than I do for a few feds who might hear something mean said about them.

  340. 340
    Ryan says:

    Pro forma. From the Latin, meaning ‘Lawyers jacking each other off.’

  341. 341
    shargash says:

    The post you blockquote is one of the most amazing loads of horseshit I’ve seen in a while, demonstrating that there are John Yoo’s on the left. It isn’t worth my time to point out all its errors, but I will note a couple of the more egregious. First, Al-Awlaki isn’t ducking any due process, because he hasn’t actually been charged with anything, nor has there been any other form of due process for that matter. Secondly, assassination is illegal in the US (a capital offense). It was made illegal precisely to stop targeted killings, even and especially when the persons were viewed as at threat. That’s why all the attempts on Castro’s life were kept so secret. Moreover, the idea that he is an imminent threat is absurd, unless the word imminent is taken to mean “at some point in the indefinite future.”

    The authoritarian poster is also ignoring the broader claims by Obama that he can do this to anyone, simply on his own orders. The administration’s claim is not that the Al-Awlaki case is state secret, but that the whole program is a state secret. This is a standard bait-and-switch of dishonest rhetoric. The problem is the program, of which Al-Awlaki is simply one instance. The argument that Al-Awlaki really is a bad guy is irrelevant to the argument that the program as a whole is an abomination.

    The idea that the government can kill whomever it wants, whenever and wherever it wants, without any process and without any review, is as extreme a form of totalitarianism as I can conceive. We are in the process of granting our president absolute power over the life and death of US citizens, and we appear to be trusting that President Obama (or President Palin or President Beck) will only use that power in virtuous ways. As I said, a load of (unconstitutional) horseshit.

  342. 342
    Flugelhorn says:

    Oh look, George. The democrats are eating their young again.

  343. 343

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