Time to Play “What if Alberto Gonzalez Said That?”

Good grief:

Attorney General Eric H. Holder Jr. asserted on Monday that it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible.

“Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack,” Mr. Holder said in a speech at Northwestern University’s law school. “In that case, our government has the clear authority to defend the United States with lethal force.”

While Mr. Holder is not the first administration official to address the targeted killing of citizens — the Pentagon’s general counsel, Jeh Johnson, did so last month at Yale Law School, for example — it was notable for the nation’s top law enforcement official to declare that it is constitutional for the government to kill citizens without any judicial review under certain circumstances. Mr. Holder’s remarks about the targeted killing of United States citizens were a centerpiece of a speech describing legal principles behind the Obama administration’s counterterrorism policies.

***

Still, the speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo — or in an account of its contents published in October by The New York Times based on descriptions by people who had read it.

The administration has declined to confirm that the memo exists, and late last year, The Times filed a lawsuit under the Freedom of Information Act asking a judge to order the Justice Department to make it public. In February, the American Civil Liberties Union filed a broader lawsuit, seeking both the memo and the evidence against Mr. Awlaki.

John Yoo and David Addington were pikers.

229 replies
  1. 1
    Martin says:

    How should it be handled then? To my knowledge, there’s no process for handling this situation. Is it reasonable for US citizens have free reign to attack the US, with no consequences?

  2. 2
    TooManyJens says:

    I get that planning armed attacks against the United States may invite a military response under certain circumstances. I get that you cannot always capture people who are hiding out in, say, remotest Yemen. However, I cannot for the life of me understand why the executive branch shouldn’t have to, at the very least, RUN THIS SHIT BY A JUDGE.

  3. 3
    pragmatism says:

    They’re gonna go with “5th amendment due process = executive order”.

  4. 4
    Yutsano says:

    @TooManyJens: This. I thought this was the whole damn reason we had a FISA court system in the first place, so at least there is SOME level of judicial review. This ain’t the Wild West any more.

  5. 5
    David Koch says:

    Cole most have peed himself when he saw “Stalag 17”.

    http://www.youtube.com/watch?v=gm1biDpzlp8

  6. 6
    TheMightyTrowel says:

    @TooManyJens: This. Fucking hell.

  7. 7
    TooManyJens says:

    @Martin:

    How should it be handled then?

    Shouldn’t the executive have to demonstrate to somebody’s satisfaction besides their own that they have correctly deemed citizens to be operational leaders of Al Qaeda who are planning attacks on the United States and that capturing them alive is not feasible?

    I mean, other than the lack of accountability, I don’t think I disagree with the standards set forth. But fucking hell, what an enormous “other than.”

  8. 8
    Mnemosyne says:

    Could you at least link us to what Holder actually said and not the NY Times “interpretation”?

    Here’s Lawfare with actual text and information:

    Text of speech

    Holder on targeted strikes (with commentary)

  9. 9
    BethanyAnne says:

    You know, I wonder if there’s an opportunity to get the R’s in Congress to pass a law requiring this go through FISA?

  10. 10
    Trentrunner says:

    Obama presser tomorrow. Over/under on our vaunted MSM asking an actual question about this?

  11. 11
    David Koch says:

    the thing is, under US law, you lose your citizenship when you voluntarily join a foreign military at war with the US.

    it’s only common sense.

    at what point do you stop being a citizen – obviously when you voluntarily leave the country and take up arms against it.

  12. 12

    @TooManyJens: Equally, I cannot for the life of me understand why some people don’t understand the very serious problems of running military operations through the judiciary. I’m not saying that you don’t have a point, just that your way is a hell of a lot less than ideal, too. As Martin suggests, there aren’t ANY good answers here.

    The only way I could see this working at all is if the judge it were run by sat on something that resembles the FISA court. As we’ve seen, that sort of setup is completely worthless in regards to protecting civil liberties or legal rights. Can you layout the design of a judicial setting that could rule on this that wouldn’t transparently be a captive of the Defense Department, rendering it pointless?

    This is only one of many ways in which it is painfully obvious that both the domestic and international legal systems were designed entirely around the idea that non-state actors were inconsequential in on the international stage. This isn’t even limited to military affairs. A lot of the problems with multinational corporations stem from the same defect.

  13. 13
    Martin says:

    @Yutsano:

    This. I thought this was the whole damn reason we had a FISA court system in the first place, so at least there is SOME level of judicial review. This ain’t the Wild West any more.

    For civilian actions. Not military. And how do you ask the court for permission to bomb someone? That’s just not something that exists in our legal system, in any way.

    Now, maybe the solution is that the administration needs to deal with the citizenship issue independently. But from what I understand, the State Department is the responsible agency for that act, and there’s several provisions by which that citizenship can be revoked, but two stand out:

    (a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-
    __
    (1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
    __
    (2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
    __
    (3) entering, or serving in, the armed forces of a foreign state if
    __
    (A) such armed forces are engaged in hostilities against the United States, or

    It seems to me that the State Department has the authority to automatically revoke citizenship for those individuals that they are addressing here. From what I can tell, there’s no judicial review. Perhaps there should be, but the statute states that the burden is on the individual whose citizenship is being revoked to challenge it, which it seems they aren’t interested in doing if they’re hunkered down in a cave in Yemen.

  14. 14
    TooManyJens says:

    @David Koch:

    at what point do you stop being a citizen – obviously when you voluntarily leave the country and take up arms against it.

    I don’t disagree, but who makes the determination as to whether you have done that?

  15. 15
    FlipYrWhig says:

    @TooManyJens: I think they should have to as well. But if Congress doesn’t codify it, they can claim they don’t have to yet. IOW, in the absence of a settled policy there are only clashing claims, meaning the executive will act with impunity until the judiciary and the legislature stop them. I continue to think that this is not an “Obama believes in expansive powers” thing, but an “executive branch likes executive power and will expand to fill the gaps” thing. Or, to put it another way, Senator Obama would hate this because it gives the executive too much power, but President Obama likes it because he’s the executive and the fewer obstacles to contend with, the better. It’s not primarily an ideological matter, it’s about turf.

  16. 16
    BethanyAnne says:

    @Tissue Thin Pseudonym (JMN): Rotating terms for the Circuit Courts to cover these?

  17. 17
    Arm The Homeless says:

    So what you’re telling me is that we are not going to institute Running Man, IRL? This isn’t what I pay taxes for.

  18. 18
    Mnemosyne says:

    @TooManyJens:

    I don’t disagree, but who makes the determination as to whether you have done that?

    I would think that leaving the country and making a public announcement that you’re part of al-Qaeda, as al-Awlaki did, would be sufficient, but what determination process are you picturing? Do you have some evidence that al-Awlaki was acting under duress so there should have been some kind of public process to see if he was telling the truth about his actions?

  19. 19
    Martin says:

    @TooManyJens:

    Shouldn’t the executive have to demonstrate to somebody’s satisfaction besides their own that they have correctly deemed citizens to be operational leaders of Al Qaeda who are planning attacks on the United States and that capturing them alive is not feasible?

    Shouldn’t they? Well, probably. But I don’t think they do. And the President can’t do his own legislation. Congress does. And given how fucking scared they are just to close Gitmo, I wouldn’t hold my breath for them to address this.

  20. 20
    MikeJ says:

    @Yutsano: FISA can get you a search warrant, but that doesn’t really do any good in Yemen.

  21. 21
    AA+ Bonds says:

    I always chuckle at how frickity-fuckety the NSA models have to look for these bassackwards things like “terrorist recidivism”, where they never bothered to determine whether Guantanamo prisoners are terrorists in the first place so their iterative equations probably end up assigning ridiculous weight to shit like NameOnPlaneTicketToAfghanistan and NameAppearsInRecentChatter that applies to the relative John Smiths of Kabul

    Then they turn around and they’re like HOLY SHIT ALL THESE TERRORISTS(?) WE SET FREE ARE TERRORISTS(???) AGAIN and they all sagely nod and forget that a fairly long time ago Western civilization determined that the best route to collecting accurate data was to let both sides argue their case and go from there, instead of letting the cops jack each other off about what good cops they are because everyone they catch is bad! Because the cops say so!

    If you just assume that everyone who gets caught up in the net is guilty then every last little thing those people do or seem to do according to intel will be analyzed using assumptions based on that assumed guilt, both on the micro and macro levels

    In other words this kill-people-because-the-cops-said-so business can fuck us over in about a million ways, some not so obvious

  22. 22
    Quaker in a Basement says:

    Definitely a complicated issue, but I’ll give John this: if Gonzalez or Yoo said it we would be calving now.

  23. 23
    Mnemosyne says:

    @FlipYrWhig:

    It’s not primarily an ideological matter, it’s about turf.

    Congress doesn’t want to do anything about it, because anything they do can and will be used against them in their next re-election campaign, so they’ve once again abdicated their responsibility to oversee the executive.

    I understand that people are upset that the executive would then step into that vacuum and take action, but what’s the other option?

    Oh, and I’m also giggling that John Cole actually thinks that Gonzalez would ever have explained jack shit. It must be one of those leftover Republican feelings that pops up from time to time of still giving anyone in the Bush administration credit for ever trying to do the right thing.

  24. 24
    FlipYrWhig says:

    @Martin: Sounds like a case where if people don’t like the law, they can change it, but until that happens, it’s going to be murky, and as long as it’s murky, the executive is going to assert maximum power and maximum discretion because that makes life easier. There are a lot of things that are wrong ethically but valid constitutionally, such as Citizens United. An argument that something is constitutional is not inherently an argument that it is desirable.

  25. 25

    @TooManyJens:

    Shouldn’t the executive have to demonstrate to somebody’s satisfaction besides their own that they have correctly deemed citizens to be operational leaders of Al Qaeda who are planning attacks on the United States and that capturing them alive is not feasible?

    Where do you draw the line on this? Is it absolute? Does it depend at all upon the lead time with which the military gets the information?

    Does the accused get any sort of representation? If so, how do you plan to make that work? If not, isn’t that a pretty pathetic form of due process that serves mostly to make a mockery of the whole concept?

    What is the standard of proof that it should require? Beyond a reasonable doubt? Is that really a good idea for military situations? Is anything less acceptable for what constitutes, from a legal standpoint, an execution?

    Are you going to require this in situations in which an American citizen is but one of a number of individuals who would all be the target of a single strike? Does his presence require that the entire operation get judicial approval or it can’t be conducted?

    And this is one of those places where I think a distinction between an American citizen and a non-citizen is pretty tenuous. A key element here is that the person in question must have placed themselves within a jurisdiction that prevents apprehension. That is pretty limiting right there, and obviates most of the reasons why a citizen needs to be treated differently than a non-citizen.

  26. 26
    Holden Pattern says:

    @Martin: You know what the magic words are in what you’re citing? “FOREIGN STATE”.

    And you know what Al Qaeda is not? I’ll give you a hint. Two words, beginning with “foreign state”.

    Fuck me, all the people who are eager to point out how a tortured statutory interpretation of the AUMF allows killing of people who may be associated with something that calls itself something like what the people who actually attacked the US on 9/11 called themselves can’t be bothered to do the most basic reading of other statutes.

    Why don’t we all just cop to it. We’re all good little authoritarians. We LIKE rule of men, when it’s our man. When it’s the other guy’s man, we pitch a bitch.

  27. 27
    WyldPirate says:

    @TooManyJens:

    Shouldn’t the executive have to demonstrate to somebody’s satisfaction besides their own that they have correctly deemed citizens to be operational leaders of Al Qaeda who are planning attacks on the United States and that capturing them alive is not feasible

    Only if they’re name isn’t President Obama Immaculate Perfection.

    BTW, nice troll of your own blog, Cole. Too bad it may too late for many of the most odious Obama apologists to start squealing like butt-fucked pigs Limbaughs.

  28. 28
    Martin says:

    @TooManyJens:

    I don’t disagree, but who makes the determination as to whether you have done that?

    The State Department, per our laws. It’s an executive call. You can appeal through the courts:

    Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this subsection under, or by virtue of, the provisions of this or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.

  29. 29
    TooManyJens says:

    @FlipYrWhig:

    I think they should have to as well. But if Congress doesn’t codify it, they can claim they don’t have to yet.

    Let’s say Holder is giving an accurate account of the state of the law, or at least a legally defensible interpretation. I have no particular reason to believe otherwise, and in fact I think it’s probably true. What that would then mean is that a) existing law on this subject is terribly lacking; and b) the administration is willing to take advantage of the ways in which it is lacking in order to claim and exercise a power that is frankly terrifying. Even if this is one of those cases where you trust the current administration to exercise that power with restraint — and Obama generally does, IMO — “trust me” isn’t good enough.

    @Mnemosyne: al-Awlaki’s case, in itself, doesn’t worry me too much for the reasons you cite. But al-Awlaki isn’t the only guy on the list. And like I said above, “trust me” isn’t enough.

  30. 30
    Mnemosyne says:

    @Quaker in a Basement:

    I think the likelihood of “the decider” ever allowing Yoo or Gonzalez to explain his administration’s thinking in public is so small as to be close to zero.

  31. 31

    And, as Martin has pointed out, does the judiciary even want to get into the position of authorizing military strikes on other countries? I can think of a lot of reasons why they wouldn’t want to have that job, and a number of reasons why we shouldn’t want them to have it, either.

  32. 32
    TooManyJens says:

    @Tissue Thin Pseudonym (JMN): Not being any kind of a lawyer, I don’t know the answers to those questions. I bet there are some good legal minds working on the problem of balancing security needs with Constitutional rights. Maybe we could see what they’re suggesting.

    @Martin:

    The State Department, per our laws. It’s an executive call. You can appeal through the courts:

    I didn’t know that, and it’s kind of amazing. So you can be “expatriated until proven still a citizen”?

  33. 33
    AA+ Bonds says:

    What about an imminent threat of really nasty blogging because that’s what Awlaki was known for IIRC

    Everything else we’re supposed to take on faith as drippings from the alphabet soup

  34. 34
    David Koch says:

    @TooManyJens: In this case, it was a self evident event. He used to post videos on Al-Qaeda’s web site. You don’t need any further leg work when you confess and provide dispositive evidence.

    This was a unique event. It’s not as if any other Americans are dumb enough to leave the country and join Al-Qaeda.

  35. 35
    Mnemosyne says:

    @Holden Pattern:

    And you know what Al Qaeda is not? I’ll give you a hint. Two words, beginning with “foreign state”.

    So you’re okay with people plotting criminal acts from outside the US in places where the law can’t touch them as long as they’re not agents of a “foreign state”?

    I’m guessing you were one of those people who was against the invasion of Afghanistan since al-Qaeda wasn’t part of that country or government so there was no justification for invading a foreign country to try and catch bin Laden. At least, I hope you were against it, because otherwise your stance makes no sense at all.

    (Edited for clarity)

  36. 36
    TooManyJens says:

    @David Koch:

    This was a unique event. It’s not as if any other Americans are dumb enough to leave the country and join Al-Qaeda.

    Then how come there are supposedly other names on that “may be killed” list? I could be wrong, but I don’t think al-Awlaki was the only one on it.

  37. 37
    FlipYrWhig says:

    If Alberto Gonzalez said it, I would hiss and curse his name. Then I would try to figure out if he was right. Then I would try to figure out how to get a better policy in place. And if I couldn’t come up with something, but it was still important to me, I’d keep following the issue and making myself a nuisance on blogs.

  38. 38
    AA+ Bonds says:

    @David Koch:

    There’s a reason police don’t just pull out a pistol and shoot someone when they offer up a lurid confession to a notorious crime

    A lot of reasons, really

    But you do raise a good point: pretty much the only justification that we’re “allowed” to see is that this guy posted a lot of Internet videos and wrote some letters

  39. 39
    Martin says:

    @Holden Pattern:

    And you know what Al Qaeda is not? I’ll give you a hint. Two words, beginning with “foreign state”.

    Cool, so all I need to do is refuse to draft a constitution and I get legal protection? Lincoln was a real fucker for killing all of those American citizens. Why did we put him on a mountain, again?

  40. 40
    David Koch says:

    @TooManyJens:

    But al-Awlaki isn’t the only guy on the list.

    name another former american on that list.

  41. 41
    Mnemosyne says:

    @David Koch:

    You don’t need any further leg work when you confess and provide dispositive evidence.

    Oh, just wait until mclaren shows up so she can once again claim that al-Awlaki was just a poor, misunderstood cleric who stumbled into working with al-Qaeda but never actually committed any crimes. The way she tells it, it would make a great Adam Sandler movie, with al-Awlaki ending up in Yemen and working with al-Qaeda through a series of suspicious-looking but totally innocent circumstances.

    Sadly, I have to toddle off to bed now, so I won’t be able to enjoy the gathering insanity.

  42. 42
    David Koch says:

    @Holden Pattern:

    “FOREIGN STATE”.

    Don’t be silly. Al Qaeda declared war on the United States in a formal press conference on February 23, 1998.

    The law doesn’t recognize form over substance as a loop hole.

  43. 43
    AA+ Bonds says:

    What would have been nifty is if Holder had come out with some sort of actual goddamned evidence that this guy was an imminent threat but my guess is that what they have doesn’t pass muster, which incidentally is also the guess that our legal system is REQUIRED to make in the same circumstances, which is why they circumvented it, here and elsewhere

  44. 44
    David Koch says:

    @AA+ Bonds:

    There’s a reason police don’t just pull out a pistol and shoot someone when they offer up a lurid confession to a notorious crime

    Really, you never heard of John Dillinger.

    cuz al-Awlaki is dead as Dillinger.

  45. 45
    TooManyJens says:

    @David Koch: That’s a good one. I should name names on the list we’re not allowed to see. Like I said, I could be wrong, but it was my understanding back when the existence of the list became known that there were other Americans on it besides al-Awlaki, though of course they were not named.

  46. 46
    AA+ Bonds says:

    Whatever: ignore the lessons of previous decades and trust the incestuous federal intelligence services to act as judge, jury, and executioner, if you wish, if you dare

    It’s your funeral, perhaps literally

  47. 47
    Chris says:

    @Tissue Thin Pseudonym (JMN):

    The only way I could see this working at all is if the judge it were run by sat on something that resembles the FISA court. As we’ve seen, that sort of setup is completely worthless in regards to protecting civil liberties or legal rights

    Not that that stopped the Bushies from cutting it out of the loop just the same…

  48. 48
    AA+ Bonds says:

    Whatever: ignore the lessons of previous decades and trust the federal intelligence services to act as judge, jury, and executioner, if you wish, if you dare

    It’s your funeral, perhaps literally

  49. 49
    PeakVT says:

    I’m inclined to give the Obama administration the benefit of the doubt on whether or not there was any other option for Anwar al-Awlaki. I just think that the Executive branch unilaterally setting up a process that gives them the unchecked ability to revoke someone’s constitutional rights is potentially dangerous, even if it is narrowly tailored. The Obama administration should have asked Congress for a process, or waited until his citizenship was stripped. Just informing Congress that ‘hey, we talked about doing some shit for a while and now we’re doing it’ isn’t a real check.

  50. 50
    AA+ Bonds says:

    @David Koch:

    Fair enough, I guess I should have said, “there’s a reason that police SUPPOSEDLY” etc.

    Of course anyone who thinks federal cops treat the justice system as anything but a last resort to achieve their ends is hopelessly naive

    There is nothing that wrecks a good ten-to-twenty-year operation like an inconvenient trial with all that evidence to present

  51. 51
    Martin says:

    @AA+ Bonds: You recall incorrectly. Holder released the justification for Al-Awlaki and there was a hell of a lot of evidence that he personally was involved in attacks on the US.

  52. 52
    FlipYrWhig says:

    @TooManyJens: OK, but if “trust me” isn’t enough, and the law is sketchy, the logical next thing would be to fight for a better law. The problem is that Congress has no stomach for overseeing war and anti-terrorist policy. Until they find that stomach, this kind of stuff is going to keep being the answer: we the executive have that power, and you’re welcome to stop us. I think it’s sad but true that there’s nowhere near enough interest in the citizenry anymore to make the requisite left-right civil libertarian alliance to push for reductions in executive power (in the way the Church commission did).

    Like you I think trust me isn’t good enough, but I also don’t know how to get to an answer better than trust me that actually makes better law. This is where civil libertarian gadflies with big megaphones could shine. Let’s see.

  53. 53
    Martin says:

    @David Koch: Actually, I’m pretty sure he wasn’t the only person on the list. I recall it being referred to in the plural, so at least 2 names.

  54. 54
    AA+ Bonds says:

    @Martin:

    LOL, sure hoss, that’s why the ACLU is suing them for that information, because they already released it

  55. 55
    Martin says:

    @FlipYrWhig:

    OK, but if “trust me” isn’t enough, and the law is sketchy, the logical next thing would be to fight for a better law.

    That’s reasonable. What would that better law look like? Keep in mind that whatever check or balance you levy here is going to be handled in secret, almost by definition given the act. You’re going to be left with a matter of trust in the end.

  56. 56
    TooManyJens says:

    @FlipYrWhig: I agree with this comment 100%.

  57. 57
    AA+ Bonds says:

    That good for nothing liberal ACLU! Why, very senior officials have selectively released information through interlocutors in the New York Times! They promise more just as soon as we all receive our security clearances!

    And as we all know, that is NOT something worth questioning! It’s almost as if . . . the people questioning those claims . . . are on the side of the terrorists!

  58. 58
    David Koch says:

    @TooManyJens: shouldn’t be so hard, we knew al-awlaki was on the list.

    but let’s be practical, and not simply theoretical. I can only think one other former American who left the country and joined Al Qaeda (Adam Gadahn) and he joined before 9/11.

    It’s not as if there are scores of former Americans operating against the United States in the service of Al Qaeda.

    This issue isn’t about foreign citizens. It’s about former American citizens. Luckily, there just aren’t Americans who want to join Al Qaeda (although the PUMAs are close to joining en masse).

    The issue is almost moot because there is only one other person this could possibly apply too.

  59. 59
    Mnemosyne says:

    @PeakVT:

    The Obama administration should have asked Congress for a process, or waited until his citizenship was stripped.

    They had already waited through Fort Hood and Umar Abdulmutallab, both of which were strongly tied to al-Awlaki. Is there a point at which waiting for the legal process becomes negligence, and is that point before or after 13 people die?

  60. 60
    Silver says:

    I’d wish we could get Holder focusing on those horrible medical marijuana users instead…

    Now, If you’ll excuse me, I need my nightly scotch and ambien before I head off to bed.

  61. 61
    Suffern ACE says:

    @Martin: He put people who didn’t know much about bomb building in touch with people who did. I don’t think this “just a blogger” argument holds much water.

  62. 62
    FlipYrWhig says:

    @PeakVT:

    The Obama administration should have asked Congress for a process,

    Does the executive branch do that? They don’t seem to be in the habit of conceding that the legislature is superior unless it’s absolutely crystal clear. It sounds like what we all really want is a legislature that stands up for its rights as an equal partner in governing. Trouble with that is that the legislature is a bunch of cowardly buffoons, and that’s even before taking ideology into account.

  63. 63
    AA+ Bonds says:

    To me this is merely the new Iqbal, the Totally Serious Opinion that Totally Serious Lawyers and Judges need to get behind to prove that they are Totally Serious and not Terrorist Coddlers, and then a handful of them will disown it later when things get even worse, How Could We?

    And it’s not even a goddamned decision, it’s a PR stunt by the AG, with the implication that we should be goddamned grateful that they’re saying anything at all about it

  64. 64
    PeakVT says:

    @Mnemosyne: Yay, the ticking time bomb argument finally shows up.

    Either we’re a nation of laws, or we’re not. Pick one.

  65. 65
    burnspbesq says:

    Cole, you should shut your pie-hole when you don’t know what you’re talking about.

    The Administration’s position on this issue is completely consistent with and supported by current Supreme Court case law.Hamdi says what it says. You can say, “if this is legal, then the law is an ass,” but if you think it’s illegal, you’re just completely wrong.

  66. 66
    Mnemosyne says:

    @AA+ Bonds:

    And as we all know, that is NOT something worth questioning! It’s almost as if . . . the people questioning those claims . . . are on the side of the terrorists!

    Um, the ACLU is on the side of the terrorists. That’s their job. They often take the side of the most horrible people imaginable, which is why they famously defended the right of the KKK to carry Nazi signs down the streets of the American city with the highest population of Holocaust survivors.

    The fact that the ACLU is defending the rights of Americans working with al-Qaeda doesn’t make those Americans working with al-Qaeda righteous heroes. It just means that the ACLU thinks that even the most despicable murderers should have their full rights.

    And now I really am going to bed. Goodnight, all.

  67. 67
    David Koch says:

    Bottom line: if you’re dumb enough to leave the country and join Al Qaeda after 9/11, don’t be surprised if an 18 lbs hellfire missile lands on your Land Rover.

  68. 68
    FlipYrWhig says:

    @Martin: Agreed, it’s a mess. That’s why I’d throw it back over to the civil libertarians. The ACLU can formulate something, Greenwald can push it, and maybe Republicans leery of this president can league up with liberals leery of creeping authoritarianism to pass it. I’m not holding my breath, but that’s what it would take.

    ETA: at a bare minimum, obvs.

  69. 69
    Cain says:

    It seems the process is fairly simple. A judicial review of a person’s citizenship, and if possible the citizen from wherever they are can ask for someone to represent them or we can find some representative somehow.

    Once the citizenship issue is dealt with then a course of action will be more obvious.

    In general, I doubt that said citizen will be doing any communicating with the U.S. I mean once you’ve started on a course of action where you plan on attacking your own nation I’m not sure if that person cares one way or another what the state of their citizenship is.

    But as a moral nation, we should go through the process.

  70. 70
    Mnemosyne says:

    @PeakVT:

    Yay, the ticking time bomb argument finally shows up.

    I don’t think you understand what the “ticking time bomb” analogy is if you think it applies to crimes that have already happened.

    You’re looking at the bodies of 13 dead soldiers at Fort Hood and telling me we have to catch al-Awlaki red-handed at the scene of his next crime rather than trying to track him down and stop him beforehand.

    ETA:

    Either we’re a nation of laws, or we’re not. Pick one.

    Yemen is not a nation of laws. So either you let al-Awlaki continue operating with impunity within Yemen’s borders because there’s no way for Yemen to catch and extradite him to the US, or you take him out. Pick one.

  71. 71
    David Koch says:

    by the way, guys, what would Elizabeth Warren do if she was President?

    You think she would sit around and wring her hands and clutch her pearls and lie down on the fainting couch in the oval office because Al-Awaki was once a citizen or would she say “you join al-qaeda at your own peril”?

  72. 72
    Cacti says:

    If there is no greater affront to the Constitution than the extra-judicial killing of a U.S. citizen…

    Then there is no greater monster in U.S. history than Abraham Lincoln.

  73. 73
    Chris says:

    @FlipYrWhig:

    I think it’s sad but true that there’s nowhere near enough interest in the citizenry anymore to make the requisite left-right civil libertarian alliance to push for reductions in executive power (in the way the Church commission did).

    The Church Commission came out of a pretty unique era – the post-Vietnam, post-Watergate revulsion with the entire national security establishment and the unchecked executive power that wielded it. Those reforms didn’t survive the seventies – Reagan’s posse spent most of its time in office bypassing the new laws, and the conclusion of Iran-contra, with everyone getting off, just formalized the return to the status quo.

    Frankly, if the 1970s weren’t enough to cause more than a brief glitch, it’s hard for me to imagine what it would take.

  74. 74
    dead existentialist says:

    @TooManyJens: Some of these guys made somebody’s list.

  75. 75
    Martin says:

    @AA+ Bonds: You realize that defense is about as useful and relevant as the GOPs “Rush can’t call people a slut because the ACLU won’t let them” assertion. The ACLU will sue for more, because that’s what the ACLU does. And I have no problem with that.

    Enough of the information around their case is in their sentencing memo for Umar Abdulmutallab.

  76. 76
    Suffern ACE says:

    Odd that the times author expected Holder to give a speech with footnotes.

    @FlipYrWhig: Reading the full speech, and hating the contents, I still realize that the administration’s policy is still to the left of the crap that Lieberman, McCain and Graham would craft.

  77. 77

    @TooManyJens:

    Not being any kind of a lawyer, I don’t know the answers to those questions. I bet there are some good legal minds working on the problem of balancing security needs with Constitutional rights. Maybe we could see what they’re suggesting.

    In other words, you’re screaming that we absolutely need to have in place a procedure without really having any idea whether that’s possible.

  78. 78
    TooManyJens says:

    @Tissue Thin Pseudonym (JMN): Sorry, I’ll just nip off to do three years of law school before I’m allowed to express my opinion on a blog about whether it seems like a bit of a problem that there are no meaningful checks on the executive branch’s authority to declare that a U.S. citizen is now working for the enemy and can be killed. Because Christ knows the executive branch in this country never fucks anything up.

    Or alternatively, you could just be being a douche about this.

  79. 79
    Martin says:

    @PeakVT:

    Either we’re a nation of laws, or we’re not. Pick one.

    Um, that doesn’t help your case here.

    It’s not the executives job to write laws where the law is unclear or lacking. It’s the executives job to get shit done with the laws that are handed him/her. That’s civics 101. If you feel the law is lacking, take it up with Congress – that’s their job. The executive is going to work within the parameters given – and most of us here were all over that shit when the issue was Obama trying to close Gitmo and Congress refusing and folks demanding he find a way around it.

    So indeed we are a nation of laws, as you desire.

  80. 80
    burnspbesq says:

    FWIW, the FOIA suits to get the supposed OLC memo are slam-dunk losers on exemptions 1 and 7(e).

  81. 81
    NA says:

    @Mnemosyne: Thank you, these links were really useful.

  82. 82
    PeakVT says:

    @Mnemosyne: No, you’re the one that doesn’t understand. If he is to be killed for his past actions, then somebody should get a conviction and execution order. If he is to be killed in order to prevent a presumed next attack – one that there isn’t enough specific evidence about to stop without killing him – then there needs to be a process that somebody independent can put the brakes on. I haven’t seen evidence that process exists, or rests on a firm legal foundation.

    @Martin: It’s not the executives job to write laws where the law is unclear or lacking.

    1. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient;

    4. he shall take Care that the Laws be faithfully executed,

    Look, if you trust that the shit the Obama administration makes up isn’t going to be bad, that’s one thing. Arguing that it’s okay on general principles strikes me as both foolish and not well supported.

  83. 83
    some guy says:

    Could you at least link us to what Holder actually said and not the NY Times “interpretation”?

    gracias 4 links

  84. 84

    @TooManyJens: Keep in mind that JMN is just as much of a lawyer as you are.

  85. 85
    TooManyJens says:

    @The prophet Nostradumbass: ::snicker::

    I’m headed to bed before he can call me “shrill.”

  86. 86
    some guy says:

    executives job to get shit done with the laws that are handed him/her.

    one hand
    clapping

  87. 87
    Martin says:

    @Cain:

    But as a moral nation, we should go through the process.

    How would we know if that was happening? I don’t mean to be snarky here, but any process related to cases such as this would need to happen in secret. Would we expect Congress to police the secret court? Because the Gang of Eight current reviews who goes on the list, and if the GOP took issue with that list, they’d probably say something. So, we already have that check. What specifically do we gain by running it through a court? Courts have value not because judges are smarter than Presidents or Senators, but because there’s a clear process involved that include things like facing an accuser, habeas corpus, and so on. Well, none of that is going to happen here, pretty much by definition of these cases. There’s not a lot of value to a court that can’t apply the process that gives value to the court.

    I’m not trying to defend the status quo – I’m just not clear on specifically what everyone expects to gain here other than ‘more’. More what? You want transparency? Not going to happen. You want a check and balance? You have it now.

  88. 88
    burnspbesq says:

    @PeakVT:

    “No, you’re the one that doesn’t understand.”

    ‘Fraid not. In the specific case of al-Awlaki, he is squarely within the definition of the enemy set forth in the 2001 AUMF. that makes him a combatant under the Geneva Conventions, and a legitimate military target.

    You don’t have to like that answer, but it is the correct answer.

  89. 89
    some guy says:

    Arguing that it’s okay on general principles strikes me as both foolish and not well supported.

    it is absurd.he’s just an entertainer. That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, That’s Entertainment, etc………..

  90. 90
    burnspbesq says:

    @Martin:

    “I’m just not clear on specifically what everyone expects to gain”

    Sand in the gears. Nothing more, nothing less.

  91. 91
    Martin says:

    @PeakVT:

    Look, if you trust that the shit the Obama administration makes up isn’t going to be bad, that’s one thing. Arguing that it’s okay on general principles strikes me as both foolish and not well supported.

    Obama is executing the laws as written. And given that the kill list is reviewed by members of Congress, he’s seeking advice and consent. I think you want different laws. That’s fine, but you’re demanding it of the wrong guy.

    The problem with Bush/Cheney wasn’t that they were rogue assholes. The problem with Bush/Cheney was that Congress permitted them to be rogue assholes. The President is just an easier target to direct your ire at, is all.

    So, no, I don’t necessarily trust Obama, but with the VP there, and folks like Clinton, and 8 members of Congress – my trust increases. It certainly wouldn’t increase any more if Roberts had to sign off, if that’s what you’re wondering.

  92. 92
    some guy says:

    squarely within the definition of the enemy

    Merck, the pharmaceutical giant based in Whitehouse Station, N.J., was one of those big winners. The company brought home $15.9 billion, second overall to Pfizer’s $37 billion. It used the money for “U.S.-based research and development spending, capital investments in U.S. plants, and salaries and wages for the U.S.,” a Merck spokesman, Steven Campanini, said last week.

    According to regulatory filings, though, the company cut its work force and capital spending in this country in the three years that followed.

  93. 93
    Martin says:

    @burnspbesq:

    Sand in the gears. Nothing more, nothing less.

    Yeah, that’s my sense. I really wish Cole would engage on this, because it really comes off as trolling when he drops these emobombs on the front page and then never answers, well, the first damn question in the comments.

  94. 94
    some guy says:

    – I’m just not clear on specifically what everyone expects to gain here other than ‘more’.

    please cut nyt/my/your taxes
    dew process is tooooooooo expensive
    cut my taxes now. and kill our enemies. now
    and then drown Big Govt in a Bathtub

    porcelain, please

  95. 95
    some guy says:

    that makes him a combatant under the Geneva Conventions, and a legitimate military target.

    4th Amendment to the Constitution, what 4th Amendment to the Constitution, motherfuckers?

    as AG Holder has carefully explained to us all, courts are for the little peoplez who LOVE this country. Haterz need Not Apply.

    cf. Madison, et alia

  96. 96

    @some guy: Shush, you, the tax lawyer has weighed in; this is settled.

  97. 97
    Martin says:

    @some guy: How does the 4th amendment apply?

  98. 98
    David Koch says:

    Okay. I was wrong. I found it. There was a long hit-list of citizens Obama has killed.

    Anwar al-Awlaki

    Andrew Breitbart

    David Broder

    Christopher Hitchens

    Bob Novak

  99. 99
  100. 100
    Joseph Nobles says:

    44 years alive, a son of Alabama (but with the banjo surgically removed), and I have never once wondered about the declaration of war that began the Civil War. Turns out there wasn’t any. In fact, only later did the Supreme Court declare Lincoln’s proclamation of the blockade of Southern harbors to be the beginning of the Civil War legally for the United States.

    Dern.

  101. 101
    JC says:

    I want the laws written, so that if President Cheney decides that Valerie Plame is an enemy of the state, that he cannot use John Yoo and David Addington to be his ‘executive review committee’, on Plame being killed.

    If there isn’t a ticking bomb type situation, why not have an independent judge take a look at the evidence?

    Where is the advice and consent on this? How is this written?

    One other thing re: Al Awaki. Here’s the thing: Al Awaki preached violence against the U.S. No doubt.

    But let’s say that this is ALL he did. he didn’t actually materially help any of the plotters, in any other way, except as extremely effective inspiration. (Cause let’s face it, the guy spoke well.)

    Is THAT – on it’s own – that Alwaki is an effective speaker – enough to targe him for killing?

  102. 102
    David Koch says:

    @JC: No. Joining Al-Qaeda, an organization that formally declared war on the United States, is enough. Al Qaeda is at war with the United States. That makes every single member who doesn’t offer to surrender a target.

  103. 103
    Martin says:

    @Joseph Nobles: How could he have? Declared war against who? America? There was no Confederate Nation. There were simply people in the US attacking US interests. And Lincoln defended those interests.

    People that place themselves extra-nationally are always going to be like this. They have no ambassadors to negotiate with. No generals to target. No courts to demand hold accountable, and nobody to declare war against. There’s just no recipe to follow, so nations like the US are going to have to sort it out on the fly, and make the most sensible decisions they can, and be corrected through the legislative and judicial process as they go.

    I think what people fail to grasp is that folks like Al Qaeda are extra-national on purpose. That affords them level of protection that being a state agent lacks. So even if you crafted a set of laws specifically to deal with them, they’d intentionally put themselves outside of those laws to get similar protection. Forcing us into drone strikes is a feature, not a bug, from their tactical viewpoint.

  104. 104
    bp says:

    Look, if you trust that the shit the Obama administration makes up isn’t going to be bad, that’s one thing.

    I’m going to butcher something Chomsky wrote (hey stop groaning)…

    “The profession of noble intent is predictable, and therefore carries no information.”

    Which I take to mean most acts of “evil” are acting out of their own ignorance. I’m guessing if our ego is to associate with any act at all it has to integrate at some level.

    “trust us” falls a bit short when leaders have the power to snuff people out of existence.

    Treating “the world as a battlefield” requires an enemy with no state affiliation or physical location of evidence. A gestalt. Under government decree (AUMF), terrorism is a mental state of belligerence that the Executive solves with extra-judicial exterminations.

    Unfortunately terrorism is an emotional act and not a static institution. The emotion can’t surrender or sign a peace treaty. It always threatens us. Meanwhile, the “collateral damage” develops its own sense of justice.

    And ain’t that what it’s all about? Justice? To make sure that horrifying special day in the universe when America truly suffered is felt and accounted for? Never again. In perpetuity.

  105. 105
    Martin says:

    @JC:

    Where is the advice and consent on this? How is this written?

    The Gang of Eight reviews these cases. That’s 2 Democrats and 2 Republicans from each branch of Congress. What would a judge add that a group of politically opposed members from a different branch of government can’t?

    he didn’t actually materially help any of the plotters, in any other way, except as extremely effective inspiration.

    Yeah, that’s just complete bullshit.

    Thereafter, defendant was picked up and driven through the Yemeni desert. He eventually arrived at Awlaki’s house, and stayed there for three days. During that time, defendant met with Awlaki and the two men discussed martyrdom and jihad. Awlaki told defendant that jihad requires patience but comes with many rewards. Defendant understood that Awlaki used these discussions to evaluate defendant’s commitment to and suitability for jihad. Throughout, defendant expressed his willingness to become involved in any mission chosen for him, including martyrdom – and by the end of his stay, Awlaki had accepted defendant for a martyrdom mission.
    __
    Defendant left Awlaki’s house, and was taken to another house, where he met AQAP bomb- maker Ibrahim Al Asiri. Defendant and Al Asiri discussed defendant’s desire to commit an act of jihad. Thereafter, Al Asiri discussed a plan for a martyrdom mission with Awlaki, who gave it final approval, and instructed Defendant Abdulmutallab on it. For the following two weeks, defendant trained in an AQAP camp, and received instruction in weapons and indoctrination in jihad. During his time in the training camp, defendant met many individuals, including Samir Khan.
    __
    Ibrahim Al Asiri constructed a bomb for defendant’s suicide mission and personally delivered it to Defendant Abdulmutallab. This was the bomb that defendant carried in his underwear on December 25, 2009. Al Asiri trained defendant in the use of the bomb, including by having defendant practice the manner in which the bomb would be detonated; that is, by pushing the plunger of a syringe, causing two chemicals to mix, and initiating a fire (which would then detonate the explosive).
    __
    Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days. The full video was approximately five minutes in length.
    __
    Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. Beyond that, Awlaki gave defendant discretion to choose the flight and date. Awlaki instructed defendant not to fly directly from Yemen to Europe, as that could attract suspicion. As a result, defendant took a circuitous route, traveling from Yemen to Ethiopia to Ghana to Nigeria to Amsterdam to Detroit. Prior to defendant’s departure from Yemen, Awlaki’s last instructions to him were to wait until the airplane was over the United States and then to take the plane down.

    So, met with him in his house, planned the attack, arranged for a bomb to be made for him, told him he had to target a US plane over US soil, and arranged for a film crew to film his martyr video.

    But really, he’s no different than Cole. Just an inspirational blogger.

  106. 106
    WyldPirate says:

    @JC: @JC:

    Is THAT – on it’s own – that Alwaki is an effective speaker – enough to targe him for killing?

    It’s enough of a reason or folks like David Koch, Martin, Mnemosyne, FlipYrWhig and others who would bend over backwards to defend Obama skull fucking kittens.

    Obots gotta do what Obots do….

  107. 107
    Martin says:

    @WyldPirate: You guys just spontaneously go blind when I post stuff like 104, don’t you?

  108. 108
    Suffern ACE says:

    @Martin: I would have just gone with “take your head out of your ass.”

  109. 109

    @Cacti:

    If there is no greater affront to the Constitution than the extra-judicial killing of a U.S. citizen…

    You do realize that Constitutional protections apply to all people, not just citizens, right?

    The real question here is whether someone can step beyond the reach of Constitutional protections. IMO, the answer is yes, and I’ll add that one can step outside of those protections even inside the borders of the country (see: Koresh, David).

    It’s a two-way street: You want those protections, you’ve got to put yourself within reach of those protections.

  110. 110

    Herm. The specific words he says – “who presents an imminent threat of violent attack” – might end up proving his *statement* correct.

    If there were a set of enemy generals sitting around a table, and saying “we will attack America tomorrow at dawn!” and we had bugged the area, so we knew they’d made that declaration, we could declare them legitimate targets and kill them all.

    This is a far cry from what actually happened in recent memory – a US citizen being struck when there was no demonstration of an imminent threat of violent attack.

    He’s playing a game that a lot of conservatives played – “Don’t you think the President should be wiretapping our enemies?” and conveniently ignoring that the crux of the issue was his doing so without the warrants mandated by the only law that gave him authority to wiretap in those circumstances.

    It’s a pretty ugly thing to do – but, his literal words are probably correct.

  111. 111
    FlipYrWhig says:

    @WyldPirate: Do you even read the threads you comment on, or are you on autopilot? Because I actually said I’d prefer a different policy, then talked about who might formulate one and try to get it into effect.

  112. 112
    Martin says:

    @LongHairedWeirdo:

    This is a far cry from what actually happened in recent memory – a US citizen being struck when there was no demonstration of an imminent threat of violent attack.

    What are you talking about? Beyond Abdulmutallab, we know that the cargo plane plot in 2010 was also Al-Awlaki. He took credit for it. We didn’t need to wiretap anyone – he admitted to it. He told us, and then demonstrated that he presented an imminent threat by trying to blow up one jetliner over the US and then trying again to blow up 2 more.

    Nobody want to try and mount a spirited defense of OBL as another inspirational blogger who was wrongly targeted?

  113. 113
    ruemara says:

    This is a very odd argument. You want due process, for terrorists, who are american citizens, even if they deny their citizenship and a judicial review of military matters, in a manner that applies to the civil criminal. :/ You want above board, double and triple oversight of checks and balances to ensure that the rights of someone, because they were born on good old american soil, are not being trampled. Here’s the issue for me, because I am not a lawyer. If I had a child who was dealing drugs from out of my bedroom, even if I really had no clue, when s/he got caught doing so, many jurisdictions could literally remove me from my house, just because of proximity. Kid’s in my house, was dealing drugs, oh well, that’s the law. I’m in the car with a friend, he runs into 7-ll for what he tells me is nachos, but he really holds up the place, shoots the clerk and comes back. Bingo, accessory. I better talk fast and have a great public defender. My sainted gran does a little shoplifting (forgive me gran, you were the epitome of good christian), she hands me a sack of loot and begs me to hide it, because the cops are about to search her… I’m committing a crime. Same thing if gran decides to go out in a blaze of scarface glory rather than be dowdy in orange jumpsuits. We are perfectly free to make choices and to hang about with people. We’re just not free of the consequences if we chose the wrong people to be involved with.

    There’s a real process with a select committee of Congressmen, it is most certainly not just the President and a few of his lawyers holed up in an underground bar in the WH. If this is the law, and it is, then change the laws by changing congress. If you think the method of interpretation is wrong, but it is not illegal, then fair’s fair, but it is your opinion. You want certainty of guilt? So we should send… whom in to get a deposition and then conduct a real investigation that will hold up to your best CSI–taught armchair detectives? C’mon people, when conservatives were spouting about Ruby Ridge, you thought they were being blind because they have to support whoever loved themselves some guns and some god.

    If this just drags you out of your den to slag on “Obots”, you really need more hobbies. I don’t really like the general idea of wars, targets, secrecy and official government reasons, but I also know that there are often a lot of extenuating circumstances for why things are the way they are. Fucking government and law is fucking complicated, you know? I like oversight, I like the ACLU, I don’t know how you could have a congressional vote on a military target, –more power to you, why don’t we start a Change.org petition on that?– but I’m not sure what plan you can posit that would be better. And I’ll take a targeted assassination, and I am not afraid of that term, over a dumbass war any day.

  114. 114

    @Martin:

    Nobody want to try and mount a spirited defense of OBL as another inspirational blogger who was wrongly targeted?

    Doesn’t fit Greenwald’s “citizenship” framing- which, as I hinted at above, is horseshit.

  115. 115
    Martin says:

    @Temporarily Max McGee (soon enough to be Andy K again): But what’s the difference? OBL didn’t fly planes into buildings, so isn’t he just another inspirational speaker?

    Ok, he’s not a US citizen, so the anti-Obot brigade is instead making an American Exceptionalism argument, that we can go shoot OBL in the head but not Al-Awlaki? That US citizens are more deserving of others for life or due process? That’s an interesting tack from those that presume to care more about civil liberties.

  116. 116

    What are you talking about? Beyond Abdulmutallab, we know that the cargo plane plot in 2010 was also Al-Awlaki. He took credit for it. We didn’t need to wiretap anyone – he admitted to it. He told us, and then demonstrated that he presented an imminent threat by trying to blow up one jetliner over the US and then trying again to blow up 2 more.

    What part of “imminent” is so hard to understand? I know it’s three syllables, but *fuck*, man… Google “define: imminent”

  117. 117
    Martin says:

    @LongHairedWeirdo:

    What part of “imminent” is so hard to understand?

    “I’m constantly attempting to blow up planes over the US” isn’t imminent? Or are we supposed to ask him for his day planner first and try and schedule a time that is convenient for both parties? We had no way of knowing when the next attack was coming. There’s a presumption of ‘imminent’ when the next one could be in 5 minutes.

    Oh, sorry, you wanted me to google the definition:

    im·mi·nent   [im-uh-nuhnt]
    adjective
    1. likely to occur at any moment; impending:

    Yep. We’re good. Were you thinking of some other word? Eminent? Wintermint? Inuit?

  118. 118

    @Martin:

    That US citizens are more deserving of others for life or due process? That’s an interesting tack from those that presume to care more about civil liberties.

    I couldn’t agree more.

    A foreign national in the US who’s suspected of committing a crime in the US is as protected as I- a US citizen- would be from an unwarranted search of his or her residence. Neither I nor that foreign national are immune to unwarranted searches at border crossings. Neither I nor that foreign national are immune from being detained or killed under exigent circumstances.

    And it might be exigent circumstances that we should be talking about here, with a smattering of international law and a pinch of martial law. Again, and I hate to hammer on it, but the law- civil law, that is- and the protections it offers, reach only so far.

    At some point you just do whatever it takes to get some sort of justice, or you give up. But if you give up, you get hundreds of Branch Davidian-type republics in your midst, you get hundreds of Al-Qaedas taking potshots and skeedaddling into loophole country.

  119. 119
    Danny says:

    @John Cole:

    There’s an aspect of straining out gnats and swallowing camels to the Al-Awlaki discussion. The legal argument is clear: Al-Awlaki is considered equivalent to an American citizen who opted to become an enemy soldier. In conventional warfare scenarios of simpler times past – say had Al-Awlaki donned a Wermacht uniform – no one would have been expecting due process before some grunt was allowed to put a bullet in his head. “Extrajudicial” killings are ipso facto an intrinsic trait of war. And as it happens, killing people without due process is perfectly legal under the laws of war – e.g. the Geneva conventions – as long as the person killed is in fact an enemy soldier, or combatant. But there’s – crucially – no requirement for the enemy soldier receiving due process w/r/t evaluating his combatant status. That would – trivially – not be war.

    So how have we traditionally made sure that people killed in wars are in fact soldiers and not civilians? Under Geneva, the onus is on the fighting parties to signal who’s a soldier and legitimate target by donning attire that clearly shows that a combatant is a combatant. A fighting force that opts to ignore that rule of war makes itself indistinguishable from the civilian population. Geneva considers such fighters – combatants – to be putting the civilian population at unnecessary risk. Thus they are considered illegal combatants, who may be convicted in civilian court of crimes that other soldiers cannot be.

    In summary: this is Holders argument. The United States have reasonable cause to believe that certain people are Al Qaeda soldiers, who can – legally – be killed without trial, just like any other soldier.

    That’s the legal case, and it’s pretty straight-forward. There’s no obligation to agree. But any credible case against Holders position must argue that it’s unreasonable to consider Al-Awliki an enemy soldier. Note that demanding that Al-Awliki be proven an enemy soldier in a civilian court of law under due process is nonsensical. That’s not a requirement that exists in a state of war. War being chaos, the onus is on the fighting parties to identify themselves – in order to protect civilians. Straying from this convention does not earn you the right to “due process” any more than committing some other war crime does. Due process does not exist for soldiers – be they American citizens or of some other nationality.

    Moving beyond the legal case, I have to say I find it somewhat absurd if the position of the anti-war left is gonna be grudgingly accepting the more conventional killing of taliban insurgents in e.g. Afganistan, while crying bloody murder over drones bombing Al Qaeda members.

    The American people were persuaded into war in Afghanistan and Iraq as a response to 9/11. The 90+% who supported Enduring Freedom at the start of hostilities, supported “getting” those responsible to 9/11. Well, Al Qaeda were responsible. Not the tens of thousands of Afghans and Pakistanis called “the taliban”. Not Saddam Hussein, or the Sunnis of Iraq.

    Say what you will of these drone strikes, but at least they’re actually targeting Al Qaeda and nothing else. What level of civilians casualties are we willing to accept in the more conventional fight against the Taliban? Well, fact is that several thousand innocents – civilian casualties – have died; as they do in all wars. We accept that.

    Demanding trial by jury before we’re allowed to go after the people we actually should have been going after from the outset – while not demanding it when going after people that never attacked us – is profoundly absurd. When you think about it.

    Once again, alleged hypocrisy is based on not understanding the issue at hand, or taking the time to read up on what’s been mainstream within the Democratic party for some 20 years, at least. I’ve pointed it out to you before, but Clinton came to these exact same conclusions when he sent cruise missiles on Bin Ladens ass, back in 1998. The legal justification then was the same as now: the targets were judged (rather than proven) to be enemy soldiers, combatants. It doesn’t matter whether a combatant on foreign soil is an American citizen or not, we shot American wehrmacht soldiers just as dead as if they had been bona fide krauts. Without a trial by their peers.

    You again opting to be willfully ignorant on the “GG stuff”, is just as tiresome as it was last time, and all the gazillion times before.

  120. 120
  121. 121

    @Danny:

    With this caveat:

    The 90+% who supported Enduring Freedom at the start of hostilities, supported “getting” those responsible to 9/11. Well, Al Qaeda were responsible. Not the tens of thousands of Afghans and Pakistanis called “the taliban”

    Aiding and abetting. Allies. Could and should have given AQ up. Didn’t. Legitimate causus belli.

    Not Saddam Hussein, or the Sunnis of Iraq.

    But I’ve always agreed with this. Hell, Bushco had to go the WMD route when they couldn’t sell that Saddam was connected to AQ.

  122. 122
    Danny says:

    @Temporarily Max McGee (soon enough to be Andy K again):

    Taliban: true enough (but perhaps mostly w/r/t their leadership anno 2001, e.g. Mullah Omar; doubtful that every pashtun boy blowing himself up in Kabul in exchange for some money to his family or whatever has all that much to do with 9/11)

  123. 123

    @Danny:

    Oh, I agree with that, too. Bushco wouldn’t finish it when they could, now it’s become a vastly different thing- or things- Pashtun nationalism and its threat to the security of Pakistan and Pakistani nukes being chief amongst them.

  124. 124
    The Raven says:

    Well, hey, the corvids are well-fed. That’s what matters!

  125. 125
    Schlemizel says:

    @PeakVT: I’m inclined to give the Obama administration the benefit of the doubt

    And there finally was what I think was JCs point in the first place. This same group here would be howling for blood if it had been Boy Blunders crew of fuck ups and bozos making this defense. But, because it is Holder many of us will hide behind BoD.

    If it was wrong then it is at least as wrong now. If it is justifiable (or at least doubtful) now it was then. We run a risk of becoming just like the conservatives when we allow party to color our opinions.

  126. 126
    Keith G says:

    @Danny:

    The United States have reasonable cause to believe that certain people are Al Qaeda soldiers, who can – legally – be killed without trial, just like any other soldier.

    At first blush it is easy for me to not have an issue with much of what Holder was communicating and as well as the support for that from many here. Yet, when I think back upon the enlightened ideals (imperfect as they were) that inspired our founders, I have some nagging concerns.

    Men are not angels. That goes for the denizens of DC as well as for any other location. The best power is that which is checked, balanced, and separated from base political whim as much as possible. There will be no perfect methodological answer, but I feel that there can be a better methodology, one that protects us from our own worst enemy – our very own craven, reactionary political passions.

    As Eric Holder so aptly demonstrated over the last few months, systems fail. Even bright and well meaning folks can oversee a process that goes off the rails. In the future, I assume that there will be a president who will not be as bright and well meaning as we would like.

    I assume I am not wrong in having a high degree of faith in Obama’s desire to get this process right (that certain people are Al Qaeda soldiers, who can – legally – be killed without trial, just like any other soldier.), but all it is is faith, and faith in humans is always problematic.

    That is something our founders knew very well.

  127. 127
    Shawn in ShowMe says:

    @Schlemizel:

    If it was wrong then it is at least as wrong now.

    There is no law telling us what the right course of action is here, so “wrong” is in the eye of the beholder. Giving the Obama administration the benefit of the doubt over the Bush neocons has nothing to do with an assessment of right or wrong. It’s an issue of trust. Period.

    Let’s say we really did have the due process some folks in this thread are demanding — how the hell is a secret hearing without representation, brought to the court by President Santorum’s AG and signed off on by Judge Roberts anything but a rubber stamp?

  128. 128
    Lojasmo says:

    @WyldPirate:

    squealing like butt-fucked pigs

    How does that sound, troll?

  129. 129
    Guster says:

    @Danny:

    Okay. I’m new to this argument, not sure what I think. What you say seems persuasive, except you say:

    a) The United States have reasonable cause to believe that certain people are Al Qaeda soldiers, who can – legally – be killed without trial …

    while Holder says

    b) it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible.

    In a) you’re talking about ‘reasonable cause,’ which has some kinda legal standing, right? I mean, doesn’t that phrase _mean_ something? In b) he’s talking about deeming. Which is, unless I’m mistaken, utterly unrelated to ‘reasonable.’

    In a) you’re talking about ‘the United States’, which sounds very reliable. In b) he’s talking about ‘officials’ which sounds like Alberto Gonzalez. (I recognize that those two things are effective the same, of course. But they draw the eye in different directions.)

    I don’t understand why some sort of FISA-like entity shouldn’t be set up to review cases like these before officials start deeming, perfectly legally, if I understand this correctly, that a bothersome neighbor is an operational leader of AQ.

    (I guess that’s my other question. Would that be perfectly legal? You deem, they die?)

  130. 130
    Guster says:

    @Shawn in ShowMe: But that’s an argument against _everything_. How is a Supreme Court, packed by wingnut extremists by President Santorum, anything but a rubber stamp? It’s not. But the answer isn’t ‘then the Supreme Court has no place.’

  131. 131
    Shawn in ShowMe says:

    @Guster:

    You deem, they die?

    Until the citzenry gets off its collective ass and votes for a Congress that will change the law, yes that’s exactly the way it’s going to be.

  132. 132
    Keith G says:

    @Shawn in ShowMe:

    ..how the hell is a secret hearing without representation, brought to the court by President Santorum’s AG and signed off on by Judge Roberts anything but a rubber stamp?

    Maintaining fidelity to our ideals is pretty god damned difficult, but I think we need to try. FISA decisions are made in secret, yet eleven FISA applications have been denied since 9/11 all but one prior to 2009. Go figure.

    Just because we can’t make it perfect does not mean we can’t try to make it better.

  133. 133
    Shawn in ShowMe says:

    @Guster:

    But the answer isn’t ‘then the Supreme Court has no place.

    At the moment, there is NO ANSWER. The Congress’s job is to provide one. Our job is to elect a Congress that will.

  134. 134

    @Schlemizel:

    If it was wrong then it is at least as wrong now.

    Whoa, whoa, whoa.

    No.

    Look, I don’t give those idiots credit for much, but there was a legitimate causus belli to go into Afghanistan. That they fucked it up after that by letting OBL get away, that they tortured those they captured, had in custody, was wrong. The way they handled the John Walker Lindh case, however, was right. And if they’d carried out the same policy towards al Awlaki as did the Obama administration, they’d have been right, too, and I would have choked back my bile for Bushco and said so had it happened on their watch, because, yes, even the blind squirrel…

    I think you’ve got to juxtapose the JWL case with the AaA case here to get to the crux of the matter. Had capturing AaA been a feasible option, there’s no reason to believe that he wouldn’t have received a fair trial, as had JWL. But capturing the guy was not a feasible option. Despite his efforts to do otherwise, JWL fell into both the justice system and Constitutional protections. And again: Anwar al Awlaki fled the reach of Constitutional protections, and there was no guarantee that he wouldn’t plot more terrorist acts before he came into reach of those protections.

  135. 135

    @Shawn in ShowMe:

    And how do you do that without someone like Glenn Greenwald screaming “EX POST FACTO! UNCONSTITUTIONAL!”?

  136. 136
    Shawn in ShowMe says:

    @Keith G:

    Maintaining fidelity to our ideals is pretty god damned difficult, but I think we need to try. FISA decisions are made in secret, yet eleven FISA applications have been denied since 9/11 all but one prior to 2009.

    If we had the Congress that created FISA we wouldn’t be having this conversation.

  137. 137
    Emma says:

    John Yoo and David Addington were pikers.

    You know, since we’re throwing bombs, let me toss in this one. This kind of thing is why we lose so many independents.

    We have liberals in this thread actually comparing a man who left this country and joined a terrorist organization dedicated to attacking it, and has of his own mouth convicted himself of planning attacks on the United States with a woman who was working to protect the interests of the United States against people like the man and was outed and her work destroyed and her helpers in extremist countries quite likely imprisoned or killed because a rogue government decided they didn’t like her husband’s opinions.

    Good Christ almighty.

  138. 138
    Keith G says:

    @Shawn in ShowMe:

    Until the citzenry gets off its collective ass and votes for a Congress that will change the law, yes that’s exactly the way it’s going to be.

    I really feel you on this. I so want Congress to be better.
    Until that day, we have a President of the United States who could decide to make this an issue of moral leadership.

    This is a problematic process and it needs improvement. I don’t see this not being abused in the future. I just hope we can make that abuse more difficult to occur and easier to confront.

  139. 139
    Some Loser says:

    @Emma:

    It is a kneejerk reaction; we all have them. It is hard for a lot us to ignore that first kneejerk-y impression, and we stick with that impression despite ourselves. Frustrating and disappointing as that is, it is just basic human nature.

    Though, you have to admit, this just doesn’t feel like the best, optimal solution for these kind of things.

  140. 140
    Omnes Omnibus says:

    @Guster:

    I don’t understand why some sort of FISA-like entity shouldn’t be set up to review cases like these before officials start deeming, perfectly legally, if I understand this correctly, that a bothersome neighbor is an operational leader of AQ.

    I don’t think anyone would have a problem with such a system. Right now, however, there is no such system. The major difference between the two groups discussing the issue here seems to be that one says they don’t think the current system is illegal and the other says that the current system sucks. Sucks =/= illegal. You are talking past one another to a large extent.

  141. 141

    @Omnes Omnibus:

    Good call. Yes, it sucks. There are big-ass loopholes through which AaA jumped, yet the avenue chosen by the administration- one of only two options they had, I think, the other being doing nothing- is legal.

    And with that, sleep.

  142. 142
    Emma says:

    @Some Loser: Hell, no. It’s a terrible solution. But, to butcher an old saying, democracy is a really lousy system of government but it’s the best we’ve developed so far.

    This is the thing. When we start making those comparisons, we sound like the cop who tells a father, I’m sorry, sir, your daughter’s stalkers may have posted all those messages calling her names and threatening to rape her until she’s dead, but all we can do is give you a piece of paper that tells him to stay away from her, and yes, in most cases the stalker doesn’t pay any attention to it anyway, but until he actually attacks your daughter there’s nothing we can do, except that if you take the law into your own hands, we’ll put you in jail and leave your daughter defenseless.

    I am not happy with having that list and I am happy the ACLU is trying to find out other names. BUT I also know that sometimes a of us make decisions that are on the questionable side of moral, and we rationalize them in a situational context. Destroying the intelligence assets of the United States is not equivalent to killing someone who declared his intention to destroy the United States. Saying so makes us sound unable to make moral distinctions.

  143. 143
    El Tiburon says:

    About what I expected from the Vaunted BJ Commentariat. Overall a pretty disgusting and cowardly set of responses. To sum up: it’s the law and it is all good. RIP America. It was fun while it lasted.

  144. 144
    Schlemizel says:

    @Temporarily Max McGee (soon enough to be Andy K again):
    I offered no opinion on this – I only noted that an awful lot of people are willing to give the BoD to Obama that would not do that for Boy Blunder. Granted W was a horseshit President and a total disaster for this country but I’d prefer we not fall into Its OK If You Are A Democrat.

    You can be for or against it but it shouldn’t matter which party controls the WH because that could change every 4 years. Like we tried to tell the GOP “will you be happy with this when it is President Hillary with the power?” I’d ask “will you be happy with this when President Ol Frothy has the power?”

  145. 145
    burnspbesq says:

    @The prophet Nostradumbass:

    If you can show how the analysis is wrong, feel free to do so. If you can’t, then kindly GFY.

  146. 146
    ericblair says:

    @Omnes Omnibus:

    I don’t think anyone would have a problem with such a system. Right now, however, there is no such system. The major difference between the two groups discussing the issue here seems to be that one says they don’t think the current system is illegal and the other says that the current system sucks.

    It may be more accurate to say that the current system is one of military decisions and war sucks. Otherwise, you’re trying to bring judicial review into military target selection, which is bizarre. Otherwise, what, “sure, we had some excellent peace talks with your ambassador, but our court has reviewed that there is a preponderance of evidence that your country is still hostile so air strikes at midnight”? I know this review is intended to be solely a drag on military decisions, but power is power.

    And as people pointed out, how is his citizenship really relevant? Citizenship allows you certain rights of residence and voting, basically. We shouldn’t treat an accused murderer differently in court because the victim was a citizen. What if the target’s a permanent resident: can we shoot his leg off then?

  147. 147
    Omnes Omnibus says:

    @El Tiburon: No, more like, it is the current law and, if you don’t like it, work to change the law. That also means identify which branch of government has the ability to pass/amend/change laws and focus some energy on it.

    @ericblair: Law is somewhat murkier when non-state actors are involved. The law of war and criminal law are comparative clear. When something skirts the edges of both, it can become hard to tell which presumption and protocols apply.

  148. 148
    lol says:

    Yemen courts issued a “dead or alive” warrant for al-Awlaki. Sounds like due process.

    If he wanted to avail himself of the American justice system, he had every opportunity to turn himself in. He chose not to.

  149. 149
    Belafon (formerly anonevent) says:

    @PeakVT: We are a nation of laws, no matter how much some people want to try to make it otherwise. And there is no way a judge of any stripe is going to look in the Constitution and say “I have the power in section x, paragraph y to prevent the executive of executing its job of protecting the country against enemies foreign and domestic.” This is entirely an executive-only decision. Other than completely changing the defense structure, I’m not even sure the legislature could do anything to stop this. It’s part of the executive branch’s job to make these kinds of decisions.

    Now if you want to argue whether it’s a good or bad decision, that’s a different thing. And I personally think Alwaki lost his citizenship when he decided to help with attacks against the US.

    The Times, as John notes, is being hypocritical: Where was this kind of analysis 6 years ago?

  150. 150

    Maybe the Feds need a new Don’t Ask, Don’t Tell policy, where they just don’t really want to know if a bad guy is an American Citizen.

  151. 151
    General Stuck (Bravo Nope Zero) says:

    Another deep analytic post on foreign affairs from Mr. Cole. Yawn, Troll me Once, shame on you, troll me twice, eyes are blue.

  152. 152
    ericblair says:

    @Omnes Omnibus:

    Law is somewhat murkier when non-state actors are involved. The law of war and criminal law are comparative clear. When something skirts the edges of both, it can become hard to tell which presumption and protocols apply.

    Yes, true. I’d like to point out that getting the judiciary involved in political and military decisions is a Bad Thing (Bush v Gore, anyone?) which is getting glossed over here. You get judges making these types of decisions, and you’re a good way down the road to having an unaccountable unelected political leadership.

    There’s a lot of results-oriented thinking going on here. The judiciary should be able to block the executive from previously political and military decisions (like here), except when the executive should be able to circumvent the legislature (like for health insurance policy), and bypass the judiciary (like in Citizens United).

  153. 153
    General Stuck (Bravo Nope Zero) says:

    John Yoo and David Addington were pikers.

    Not really.

    On November 3, 2002, a RQ-1 Predator fired a Hellfire missile at a car in Yemen. Al Qaeda leader Qaed Senyan Abu Ali al-Harithi was the target and is believed to have been killed according to U.S. official. The attack also killed five other men including an American citizen suspected of belonging to Al Qaeda.

    The Bushies didn’t give us any explanation when they targeted and killed a US citizen in Yemen, that was running with AQ. They just thought it up and did it. Otherwise, we have been over this shit so many times, it makes my teeth hurt. Al Alwaki told us in personal testimony via Al Quaida teevee what he was up to.

    Al-Awlaki: “Kill Americans” – CBS News Video

    And again

    And that is all I got to say on this matter.

  154. 154
    Danny says:

    @Keith G:

    Men are not angels. That goes for the denizens of DC as well as for any other location. The best power is that which is checked, balanced, and separated from base political whim as much as possible.

    Oh, absolutely. But consider conventional warfare. Would My Lai or Haditha have happened under a regime of checks and balances evaluating beforehand who could be shot and who could not? Most certainly not. Would the world be an infinitely more civilized place should all warfare be carried out within such a framework, effectively establishing rule of law as robust as we have at home as citizens? Most certainly. And yet, we do not expect of Obama that he make that happen.

    The way I see it, Al-Awlaki was allowed way more due process than any Frenchman, Korean, Afghan, Iraqi or Vietnamese civilian who happened to live in a country that at one point became our battleground. And the question is: why should he deserve it? Because of his American passport?

    It’s warfare, and imperfect as the world is, the main remedy in cases like these is the illegality of the act of killing individuals without reasonable cause to assume that they’re combatants (perhaps even knowing that they are in fact civilians). Such killings are war crimes. My Lai was a war crime; Haditha was a war crime; and killing Al-Awliki or some other U.S. citizen while knowing or suspecting their innocence would also be a war crime.

    (All this of course applies strictly to foreign soil, not the United States)

  155. 155

    @TooManyJens:
    Because the courts have already decided that he doesn’t. This is not a new aspect of law. You can choose to give up your right to fair trial. It’s not easy to do, but AaA worked hard to do it. A federal judge has already ruled on his specific case, although when I say ‘ruled’ he threw out the ACLU’s case because it is just plain established law.

    I hope this adds to what’s already been said. This was absolutely 100% legal.

  156. 156
    Danny says:

    @Guster:

    Okay. I’m new to this argument, not sure what I think. What you say seems persuasive, except you say:

    a) The United States have reasonable cause to believe that certain people are Al Qaeda soldiers, who can – legally – be killed without trial …

    while Holder says

    b) it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible.

    In a) you’re talking about ‘reasonable cause,’ which has some kinda legal standing, right? I mean, doesn’t that phrase mean something? In b) he’s talking about deeming. Which is, unless I’m mistaken, utterly unrelated to ‘reasonable.’

    In a) you’re talking about ‘the United States’, which sounds very reliable. In b) he’s talking about ‘officials’ which sounds like Alberto Gonzalez. (I recognize that those two things are effective the same, of course. But they draw the eye in different directions.)

    I don’t understand why some sort of FISA-like entity shouldn’t be set up to review cases like these before officials start deeming, perfectly legally, if I understand this correctly, that a bothersome neighbor is an operational leader of AQ.

    (I guess that’s my other question. Would that be perfectly legal? You deem, they die?)

    Well here’s my two cents, while acknowledging that IANAL in international law:

    This goes back to Geneva and the ‘combatant’ concept. AFAIK, a combatant is defined as someone who partakes in hostilities.

    So ‘legal standing’ is probably not quite right, since what we’re talking about here is whether it could be shown, after someone was killed, that the killing was carried out while having reason to believe that the target was not a ‘combatant’, but civilian. If that can be shown, then a war crime has been committed. What I mean by “reasonable cause” is that the decision the decision to kill would not be found in retrospect to qualify as a war crime, under Geneva.

    Note that this is the only (legal) protection allowed to civilians in a war-zone.

    The Obama administration could argue the case, as I have, that we accept this framework as acceptable for conventional battlefields when deciding whether enemy combatants – who play by the rules and put on a uniform – can be killed.

    But for various reasons they opt to further constrain when and how such a decision can be made, establishing some necessary criteria which has to be fulfilled in particular case: U.S. citizens taking part in e.g. Al Qaeda operations.

    One of the reasons I would call mostly political: while deciding whether to kill
    Al-Awlaki may not necessarily deserve more procedural checks than the decision to kill an American wehrmacht soldier, or the decision to kill Afghanis, Iraqis or Vietnamese individuals in their homeland, a substantial segment of the American public will demand it anyway.

    The other reason is the fact that once one of the fighting parties has chosen to not abide by those rules of war that are meant to protect the civilian population (e.g. clearly signal who’s a combatant; not hiding among civilians) then the cat is out of the bag and the danger to civilians is by necessity increased.

    W/r/t the “annoying neighbour” issue, all this applies only outside the U.S. At home, terrorists are dealt with through law enforcement. See e.g. ‘1984’ etc for the well established observation that while we accept the flawed protection of laws of war abroad, on the battlefield, starting to apply it at home entails de facto ending rule of law and subversion of democracy.

  157. 157
    Tim I says:

    This is pusillanimous bullshit! Anyone who wages war against the US should be treated as an enemy combatant. The generally accepted manner in which we deal with such is to kill them pretty damn quick.

    Who gives a fuck what passport they are carrying.

  158. 158
    Keith G says:

    @Danny:

    And yet, we do not expect of Obama that he make that happen.

    Though I am a child of the 60s, I am a realist. I do not expect Obama to work miracles or be perfect – same with the military and the CIA. Further, AFAIK, these actions are seemingly quite legal as were many of the activities of Wall street Banks that brought on the 2008 crisis.

    Call me a chauvinist, but I want the process by which the CIA is given the command to kill an American citizen to be a very difficult one. There are some slopes that really are slippery and the CIA has been on several of them (as have the military when used as a domestic political expedient).

    I know bad shit has happened in the past and that nuttin is perfect….and that is a big reason why I want as many hoops jumped through as possible before the CIA is given the command to kill an American citizen.

    And the question is: why should he deserve it? Because of his American passport?

    To me, this is like asking why the recent school shooter in Ohio deserves all the due process possible.

    It is because this is who we are and who I hope we continue to aspire to be. It is because all of us and all who follow will suffer if the hated and the seemingly monstrous are not given access to the most open and accountable justice possible – a justice that is beyond any short cut imposed by impassioned political fevers.

  159. 159
    RP says:

    And there finally was what I think was JCs point in the first place. This same group here would be howling for blood if it had been Boy Blunders crew of fuck ups and bozos making this defense. But, because it is Holder many of us will hide behind BoD.

    Hypocrisy gets a bad rap sometimes. The claim that we should approach the Bush and Obama administrations in exactly the same way makes no sense to me. Yes, I trust Obama a hell of a lot more than I trusted Bush or McCain. That’s why I voted for him and the point of having an election. If that makes me a hypocrite, so be it.

  160. 160
    Danny says:

    @Keith G:

    Call me a chauvinist, but I want the process by which the CIA is given the command to kill an American citizen to be a very difficult one.

    Yes I would in fact perhaps call you that, and I’m not sure we can claim the moral high ground while maintaining that we as Americans expect more legal protection for Americans on the battlefield than we allow foreigners.

    To me, this is like asking why the recent school shooter in Ohio deserves all the due process possible.

    But you’re somewhat chickening out here, because my question is: why does Al-Awlaki deserve it, while the American wehrmacht soldier in WWII and the vietnamese civilian in My Lai does not?

  161. 161
    Keith G says:

    @Danny:

    the vietnamese civilian in My Lai does not?

    I am not sure where this is coming from, but as it is on the table:

    As far as I am concerned, the trigger men at My Lai should have been made to spend the rest of their lives in prison.

    As I typed earlier, a lot of bad shit has gone down in the past. I cannot change that, but I can advocate for the best process that imperfect humans can devise using an imperfect political system. We have to start somewhere to try to roll back the more odious parts of the “9/11 changed everything” mindset and the killing of American citizens is the topic of the day so it seems to be a good place to start.

    We have gotten really good at remotely killing people and it seems we will be getting even better. I hope I am not alone in worrying that this new hammer in the presidential tool box will end up generating even more nails than previously imagined.

  162. 162
    liberal says:

    @Keith G:

    As far as I am concerned, the trigger men at My Lai should have been made to spend the rest of their lives in prison.

    IMHO that’s wrong. Not that I don’t think the triggermen, as you put it, had no culpability as war criminals, but they weren’t the ones really making the decisions, and presumably the natural human revulsion towards that kind of thing had been muted by overexposure to brutality and gore.

    The guys higher up the ladder were the “really” guilty ones.

  163. 163
    Danny says:

    @Keith G:

    You’re not alone, and I think that the administration should release the legal memos and be as transparent about how the decision process works, what procedural checks there are, etc as they feel they can be.

    The point with the people killed at My Lai is that they – people like them – still does not enjoy the protections that Al-Awlaki enjoyed; we don’t demand they have the protections Al-Awlaki got but we in fact demand Al-Awlaki should have had more. The decision whether they are targets that can be killed is deferred to the judgement of the CO.

  164. 164
    Keith G says:

    @liberal: I am not totally ill disposed to that, but at some point if you are seeing old women and babies being machine gunned at point blank, you have a decision to make – a decision that demands accountability. I hope I do not seem harsh, but there are some lines that need to be drawn and once drawn need to be maintained.

  165. 165
    Martin says:

    @Schlemizel:

    And there finally was what I think was JCs point in the first place. This same group here would be howling for blood if it had been Boy Blunders crew of fuck ups and bozos making this defense. But, because it is Holder many of us will hide behind BoD.

    FWIW, Bush (conceptually) had the same list as Obama. There’s pretty good evidence that Americans were on it. The list was reviewed by the gang of eight back then as well. In short, with the exception of actually being competent at carrying out the list, nothing here with Obama is actually different than with Bush.

    But under Bush, nobody dug in on this issue. Under Bush, nobody demanded a defense for this. And under Bush, the circumstances never presented themselves for a defense because Bush’s crew could never get the job done. But from what I can tell, there’s no change in policy here, just a change in competence that gives the appearance of a change in policy.

  166. 166
    Tractarian says:

    @Holden Pattern:

    Why don’t we all just cop to it. We’re all good little authoritarians. We LIKE rule of men, when it’s our man. When it’s the other guy’s man, we pitch a bitch.

    This is naive and, frankly, insulting. Here’s the thing: only a tiny liberal fringe thinks that the President needs to get a warrant from a judge before he orders drone strikes on al-Qaeda militants (whether they be U.S. citizens or not).

    Don’t get me wrong. Plenty of people – probably a majority of Americans – think that torture is wrong and impermissible under any circumstances. But that’s where the disagreement with Yoo and Addington lies. Not on the broader executive power issue.

    Fact is, most Americans – and most Democrats – aren’t reflexively opposed to military force. We know that history consistently shows that sometimes a little violence now can prevent a lot of violence later. We just want the violence to be carried out as efficiently and professionally as possible, with as little collateral damage as possible. That’s why many of us view drone strikes as a preferable alternative to cruise missiles and special ops.

  167. 167
    Martin says:

    @Keith G:

    To me, this is like asking why the recent school shooter in Ohio deserves all the due process possible.

    Al Awlaki and OBL did, in fact, get all the due process possible. Their decisions to be non-state agents, to hide out in ungovernable areas, to be out of the reach not just of our government but often times of any government, simply makes it not possible to offer them more due process than we did.

    Put another way, if we could have arrested both individuals and brought them to the US (provided that the cowards in Congress would have tolerated that) do you think we would have denied them due process? Do you think we would have summarily executed them? We actually did try to do that in the case of OBL. The order was capture or kill. They took capture off the table. So did Al Awlaki. Are we supposed to let them dictate how we carry out justice in this country? Because I don’t think anyone from Jefferson onward would suggest that, and I don’t think there’s a court in the country that would back that viewpoint up.

    I think McGee has it spot-on: “You want those protections, you’ve got to put yourself within reach of those protections.” The kid in Ohio put himself within reach of those protection. Al Awlaki did not.

  168. 168
    Keith G says:

    @Danny: I wonder if we maybe doing a bit of apple and oranges.

    On a battle field, COs deserve and get a lot of leeway. As far as I know, the “targeted” killings in third countries (like Al-Awliki) are not the province of battlefield commanders or even the military at all. Isn’t this activity a CIA joint?

    Also, I am not sure there is much fog of battle when one is tracking a target for weeks or months.

  169. 169
    Danny says:

    @Keith G:

    But this singling out “targeted killings” as suspect in some way, aren’t we putting ourselves in a position where we’re in effect saying that had we instead sent a B-52 to carpet bomb to oblivion the neck of the woods (and all living things in it) where we suspected Al-Awlaki was located then everything would be hunky-dory? The quality of intelligence and the accuracy of our weapons makes it feel “assassination-like”, it doesn’t have the familiar appearance of the kind of “war” we’re used to. But shouldn’t we instead strive for high quality intelligence and accurate weapons? They save civilian lives!

  170. 170
    Keith G says:

    @Martin: In my individual opinion, Al-Awliki seems to be a quite heinous critter. This is a person I have no interest in defending. My concern is with the process. Will future targets have such a rich paper and video trail? If not, who will vet the intel that says “Here is the target”?

    When a future president is advised that a he could really use an event to wake up some moribund poll numbers, will there be enough outside checks to the system?

    I cannot think of a presidential prerogative that has not been abused. This one is about killing people. I want more than ample process.

  171. 171
    Keith G says:

    @Danny:

    sent a B-52 to carpet bomb to oblivion the neck of the woods

    Our only choice?

    Come on.

    Okay, for the record. I have never said I am against them. I am not against a drone blowing a bad guy into a million pieces of charred goop. But there are qualifications.

    In our history, there are bad people we haven’t been able to touch, and our democray seems to have survived. I have no way of knowing which future target will be at AL-Awliki’s level of danger to our amber waves of grain. I assume few will. So what is the cut off point?

    Planes and bombs mean that only the clearly worst threats would be attacked. How far down the list do drones allow us to go? Our record of self restraint is pretty awful and as I asserted earlier, give a president a prerogative and not only will it be used, but it is only a matter of time until it is abused.

    All I am advocating is that this president and his supporters push for the creation of a decision making process that is as transparent and regulated as possible, one where accountability is an unavoidable end product.

  172. 172
    Danny says:

    @Keith G:

    All I am advocating is that this president and his supporters push for the creation of a decision making process that is as transparent and regulated as possible, one where accountability is an unavoidable end product

    And we’re completely in agreement on that; I support the same thing. Just noting that comparing what we know of the process that ended up in the killing of Al-Awlaki with the process (still in place) with deferring to CO etc that gave us My Lai and Haditha, the former offers more checks against wrongful/illegal deaths than the latter.

  173. 173
    IrishGirl says:

    @David Koch: It isn’t clear from the NY Times info whether he was talking about the perp being in or out of the U.S. Is “leaving the US” to join a enemy part of their determination?

  174. 174
    lethargytartare says:

    @Schlemizel:

    And there finally was what I think was JCs point in the first place. This same group here would be howling for blood if it had been Boy Blunders crew of fuck ups and bozos making this defense. But, because it is Holder many of us will hide behind BoD.
    If it was wrong then it is at least as wrong now. If it is justifiable (or at least doubtful) now it was then. We run a risk of becoming just like the conservatives when we allow party to color our opinions.

    just so I know what we’re arguing about, what was “wrong then” that is now being called “right?”

    because if we’re just supposed to IMAGINE IF!!!! Bush’s advisers had made the same argument as Holder, I’m gonna refuse to participate on the grounds that it’s just as likely that Bush’s advisers would have made a completely different argument.

    or, iow, Cole’s being a d-bag troll.

  175. 175
    Tractarian says:

    @Keith G:

    All I am advocating is that this president and his supporters push for the creation of a decision making process that is as transparent and regulated as possible, one where accountability is an unavoidable end product.

    Accountability?

    ac·count·abil·i·ty noun ə-ˌkau̇n-tə-ˈbi-lə-tē : the quality or state of being accountable; especially : an obligation or willingness to accept responsibility or to account for one’s actions

    I’m sure you’d like a more “transparent” and “regulated” way to determine when to kill enemies, but I don’t think you can have a more “accountability”-oriented system than the one that is in place now: the chain of command.

    When some Islamist militant gets blown away by a Predator in Yemen, we know who is responsible for that act: the President of the United States, and no one else. Then, if a majority disapproves of the president’s actions, they’ll elect a new president. That’s the epitome of accountability.

  176. 176
    Anna in PDX says:

    I sort of agree that Awlaki forwent (? Can I conjugate Forgo like that?) his citizenship when he called for armed action against the US, even though the action was not that of a state. Though, I don’t think his 16 year old who was also killed in that attack, did any such thing.

    I am upset by drones as a technique because it seems they will be used more and more and therefore the US will be able to continue to kill people overseas and there will never be any citizen outrage like against Vietnam because fewer and fewer US military will be at risk of getting killed. I don’t want our military at risk, but I also don’t want us to keep killing people in more and more effective ways. I don’t think this gets us friends in the region or influences people towards us. I do understand that being against drones, terrorism, etc. is like being against flanking maneuvers in that they are all specific military tactics and I am not a military person. But I still don’t like the fact that our overseas actions that kill people are getting more and more divorced from our citizens’ reality.

  177. 177
    Danny says:

    Though, I don’t think his 16 year old who was also killed in that attack, did any such thing.

    Just narrowly commenting on Al-Awlakis son: wrong place, wrong time. He wasnt a target, he was a civilian casualty and the administration never claimed that he could be legally targeted, only that his father could.

  178. 178
    Keith G says:

    @Tractarian: Of course we will know who gave the order, Duh!

    What about why the order was given?

    Remember, the success of our polity is in part based on the notion that there is a hubris inherent in the actions of an executive and therefore those actions must be checked as much as possible. Presidents are ingenious at avoiding accountability – often by limiting who sees what information. This must be taken into account if we are to limit abuse.

  179. 179
    El Tiburon says:

    @Danny:

    Just narrowly commenting on Al-Awlakis son: wrong place, wrong time. He wasnt a target, he was a civilian casualty and the administration never claimed that he could be legally targeted, only that his father could.

    And you believe this? Have you always been and will continue to be a sucker?

  180. 180
    El Tiburon says:

    @Keith G:

    This is a person I have no interest in defending. My concern is with the process. Will future targets have such a rich paper and video trail? If not, who will vet the intel that says “Here is the target”?

    So basically you don’t care about the person or the process. It is this new process, THAT THE PRESIDENT CAN KILL YOU. Trying to debate this new process so outlandish and inconceivable a few years ago.

    In a few years, literally, when we are hanging people on the town square, you idjits will be debating the type of rope being used.

  181. 181
    Xanthippas says:

    @burnspbesq:

    Did you read the Hamdi decision rendered by the Supreme Court in Bizarro World? Because the one I’m familiar with says a U.S. citizen must be given the right to challenge his status as a detainee before an impartial court. Which is not what the Obama administration is saying.

  182. 182
    El Tiburon says:

    @Martin:

    Al Awlaki and OBL did, in fact, get all the due process possible. Their decisions to be non-state agents, to hide out in ungovernable areas, to be out of the reach not just of our government but often times of any government, simply makes it not possible to offer them more due process than we did.

    For fuck’s sake. First, you have no idea what involvement OBL or Awlaki had in anything. None. Zero. Nada. You have no fucking clue at all. And yet we are able to murder both of them on what evidence?

    Oh, what’s the point really.

  183. 183
    Xanthippas says:

    @burnspbesq:

    No Court has held that the 2001 AUMF trumps the rights accorded to U.S. citizens by the Constitution, nor has any court held (nor will they ever at the rate this is going) that the Obama administration’s secret process for targeting U.S. citizens for assassination meets the requirements of due process. You are completely wrong about this.

  184. 184
    Lex says:

    John Cole, Greenwaldian Firebagger!

    /irony

  185. 185
    Keith G says:

    @El Tiburon: Nah.

  186. 186
    Xanthippas says:

    @Martin:

    Al Awlaki and OBL did, in fact, get all the due process possible. Their decisions to be non-state agents, to hide out in ungovernable areas, to be out of the reach not just of our government but often times of any government, simply makes it not possible to offer them more due process than we did.

    Put another way, if we could have arrested both individuals and brought them to the US (provided that the cowards in Congress would have tolerated that) do you think we would have denied them due process? Do you think we would have summarily executed them? We actually did try to do that in the case of OBL. The order was capture or kill. They took capture off the table. So did Al Awlaki. Are we supposed to let them dictate how we carry out justice in this country? Because I don’t think anyone from Jefferson onward would suggest that, and I don’t think there’s a court in the country that would back that viewpoint up.

    I think McGee has it spot-on: “You want those protections, you’ve got to put yourself within reach of those protections.” The kid in Ohio put himself within reach of those protection. Al Awlaki did not.

    The Constitution doesn’t afford U.S. citizens “all the due process possible.” The protections afforded by the Constitution do not end at our borders.

    All these disappointingly common arguments, here and elsewhere, are basically premised on the argument of “TERRORISM IS DIFFERENT.” No it’s not. Until recently, we’ve had no issue with using our own police forces, and the police forces of our allies, to secure the arrests of terrorists who’ve killed U.S. citizens, even when they’re in hard to reach places. Terrorism is a criminal act, and we all roughly agreed with that approach until Obama got elected. Killing someone with a drone attack is a matter of convenience, not necessity. Holder’s argument is bullshit, and we all know it.

  187. 187
    Xanthippas says:

    @Martin: @Martin: Unless I’m reading you wrong, both of you seem to regard the protections of the Constitution as “sand in the gears.” So, thanks for being willing to toss hundreds of years of law over the side because criticism of our dude annoys you.

  188. 188
    Danny says:

    @El Tiburon:
    Yes, I believe that.

  189. 189
    Danny says:

    @El Tiburon:

    And yet we are able to murder both of them on what evidence?

    And your assertion that they were murdered is based on what evidence?

  190. 190
    Keith G says:

    @Xanthippas: The problem I am having with what you typed is that modern terrorism may just be a different animal. I say that because new technologies have made the potential body counts so much higher and social disruption so much greater.

    That said, I am quite certain that military solutions are rarely useful. I think at some point we need to acknowledge that we need a new way of thinking to adequately deal with this new type of terrorism. I want us to proactively deal with threats to both our safety and our civil liberties.

  191. 191
    NobodySpecial says:

    Al Qaeda in Gitmo is OK because they’re not enemy combatants who are afforded the protection of the Geneva Convention.

    The assassination of al-Awlaki is OK because Al Qaeda is at war with the US and therefore Geneva law allows us to kill him.

    You know, a bit of consistency seems lacking in these two arguments. Either one is correct or the other, but both can’t be true at the same time.

  192. 192
    Danny says:

    @NobodySpecial:
    That’s because this:

    they’re not enemy combatants who are afforded the protection of the Geneva Convention

    Is a slightly mangled summary of a legal argument put forward by the Bush administration in support of indefinite detention and in support of torture, which has been afaik pretty consistently rejected by most international observers and mainstream Democrats. It shouldn’t be too surprising that people who were deeply critical of the Bush approach to international law, still doesnt approve of that approach.

    (I do believe that Bush’s argument was that ‘unlawful combatants’ were not protected against torture etc by Geneva; they still claimed the right to kill them on the battlefield, the latter being where the bipartisan agreement is at)

  193. 193
    Mnemosyne says:

    @El Tiburon:

    For fuck’s sake. First, you have no idea what involvement OBL or Awlaki had in anything. None. Zero. Nada. You have no fucking clue at all. And yet we are able to murder both of them on what evidence?

    Man, I love the arguments about OBL and al-Awlaki being totally innocent. I mean, just because they met extensively with the perpetrators, gave them money and instructions on to commit their crimes, and bragged about it afterwards, that doesn’t mean that they actually did anything.

    It’s like you guys have never even heard that being an accessory to a crime is an actual crime. Paying someone to commit a crime for you is itself a crime. Giving someone the tools to commit a crime is itself a crime.

    Make sure you never hire anyone to kill your wife, because your argument that all you did was pay someone to kill her is going to get you a quick trip to Death Row. Under the law, the person who pays for the murder is considered equally as guilty of first-degree murder as the actual triggerman.

  194. 194
    Corner Stone says:

    Beyond the normal revulsion I feel when I read these threads, I just wanted to make a couple quick points:
    1. Capt Mnemo said this @ 66:

    Um, the ACLU is on the side of the terrorists. That’s their job.

    and
    2. Not one of the legal beagles in this thread uttered a word about it.

  195. 195
    Mnemosyne says:

    @NobodySpecial:

    And for those of us who think the Geneva Convention applies to both groups?

  196. 196
    Omnes Omnibus says:

    @ Corner Stone: Nice use of an out of context quote. Classy argumentation.

  197. 197
    Xanthippas says:

    @Mnemosyne:

    Thanks for leaving out the part where all of that is established by “judicial process” (as opposed to stories in the news, leaks by administration insiders, and You Tube videos) before you’re put to death.

  198. 198
    Mnemosyne says:

    @Xanthippas:

    Thanks for leaving out the part where all of that is established by “judicial process” (as opposed to stories in the news, leaks by administration insiders, and You Tube videos) before you’re put to death.

    You mean like when al-Awlaki was convicted in absentia in a Yemeni court? Or does it have to be a US court in order to count?

    ETA: There’s also Abdulmutallab’s testimony in his own court case that Martin linked to. But I guess his testimony under oath is, like, hearsay or something, so there’s still no proof that al-Awlaki ever did anything.

  199. 199
    Danny says:

    @Xanthippas:

    “judicial process”

    Again, the decision to kill a soldier doesn’t work like that. That’s what war is: Legal killings decided on without anything even resembling a judicial process.

  200. 200

    […] to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or […]

  201. 201
    Keith G says:

    @Danny: You are correct. Enemies on battlefields during war get killed as a natural consequence of being on a battlefield. Of course..

    But it’s simply not tolerable to take the view that the entire world is now a battlefield, and therefore battlefield rules of engagement apply everywhere. If you want to kill a U.S. citizen outside of a traditional hot battlefield, there needs to be independent oversight. The FISA court performs this function for surveillance, and we know from experience that it rarely gets in the government’s way. But at least it’s technically independent and forces the executive branch to follow its own rules. It’s the absolute minimum that we should require for targeted killings too.

  202. 202
    liberal says:

    @NobodySpecial:

    Here’s some issues I don’t quite understand:

    First, the attack on the USS Cole is often referred to as an act of terrorism. But isn’t it really rather an act of war?

    Second, in terms of stuff stopping or not stopping at our borders, IIRC there are laws under which people can be convicted in US courts for acts committed far outside our borders.

    Not saying that any of that directly relates to the current topic of discussion, but overall it gives me the sense that things are at best a little confused.

  203. 203
    Corner Stone says:

    @Omnes Omnibus: You mean classy like saying the ACLU is on the side of terrorists? Classy like that you mean?

  204. 204
    Omnes Omnibus says:

    @ Corner Stone: Reread what she said – the whole thing.

  205. 205
    Danny says:

    @Keith G:

    Yeah, I cross-posted my first post here over at Kevin’s a while ago. Kevin is a blogger that’s disappointed me a lot over the last few years. The positions he’s taken on Foreign Policy, Libya, Afghanistan etc are – much like JC, GG whathaveyou – not thought through but incoherent hand-waving, teh outrage, and a position that boils down to non-interventionism, but never dare speak its name.

    As to this argument – there’s no “battlefield” – let’s just note that there was no “battlefield” when Clinton sent 68 cruise missiles on Bin Laden and from what I can recall he never bothered tasking Janet Reno with establishing and publicly accounting for procedural checks and whatnot. Where was Kev and his outrage back then? And yet he dared criticize Bush almost daily at Calpundit and Washington Monthly.

    So maybe, just maybe the problem with Bush wasn’t identifying combatants in the absence of a traditional “battlefield”. And Kev’s problem with the Al-Awliki killing I suspect is rather the American passport. Which brings us back to U.S. citizens in the wehrmacht, the civil war and why enemy soldiers who are also american citizens should be granted more rights than foreigners.

  206. 206

    @Xanthippas:

    The Constitution doesn’t afford U.S. citizens “all the due process possible.” The protections afforded by the Constitution do not end at our borders.

    The Constitution doesn’t always protect those inside our borders, either. Again (just in case you missed it), the courts have consistently ruled that under exigent circumstances, one’s 4th Amendment protections are moot. This is the story of Dillinger, this is the story of the Branch Davidians- if one shows time and again that any attempt to be presented with an arrest warrant will be met with violence- whether in Afghanistan, Yemen, Waco or Chicago- one cannot expect to be protected by the Constitution. In order to get due process, one must agree to comply with the process, which includes arrest and the possibility of conviction. That’s the two-way street.

  207. 207
    Corner Stone says:

    @Omnes Omnibus: Instead of your pathetic non-rebuttal attempts, how about you actually post what you think mitigates the fucking lede?
    And I’ll go further and say the ACLU isn’t on the side of the “terrorists”, nor do they want “terrorists” to get their “full rights”. They believe in the law. The difference does indeed have a distinction where I come from.
    And I’m god damned sorry that offends you so…[dramatic pause]…Counselor.

  208. 208
    Danny says:

    @Danny:

    Though I should add that I think his actual suggestions are good w/r/t FISA etc. It’s the outrage, demanding it and claiming failure to do so being “intolerable” etc that is engaging in a rather silly game of pretend that the Obama administrations handling of Al-Awlaki was a change for the worse: it’s in fact a change for the better compared to pretty much anything that existed previously. (Kev was SHOCKED by the way, finding out that only 5% strongly support his position on the drones. Classic New Left behavior.)

  209. 209
    Omnes Omnibus says:

    @ Corner Stone: In my view, she basically said what you did. The ACLU takes the side of, i.e., argues on behalf of, many reviled groups. It is what they do. It is also why I throw them money when I can.

    I think her point was clear. In order to miss it, one would have had to stop reading after the sentence you cited or one would have to intentionally misinterpret what was said. Like I said before, you took the comment out of context. Willfully or negligently.

  210. 210

    @Corner Stone:

    And I’ll go further and say the ACLU isn’t on the side of the “terrorists”, nor do they want “terrorists” to get their “full rights”. They believe in the law.

    Well, they certainly have their theories on how the law should be interpreted and applied, but just because they’re the ACLU doesn’t make those theories the law. I believe the final arbiter there is the SCOTUS.

  211. 211
    Mnemosyne says:

    @Omnes Omnibus:
    @Temporarily Max McGee (soon enough to be Andy K again):

    Ah, did the Pied One take issue with something I said? This would be why he’s pied. Did he get upset at me linking the heroic KKK march through Skokie (and the ACLU defense thereof) with the actions of terrorists?

  212. 212
    Keith G says:

    @Mnemosyne: I have no dog in this fight, but there is something that I always have been curious about:

    If you go to the trouble of pie-ing someone, why then communicate with them via third party?

    And before you coyly protest; yes, you are communicating with him. Wouldn’t that be, like, the second definition of passive aggressive behavior?

    If you are going to taunt and tease, be upfront about it and communicate without pretense. On the other hand, if he causes you such emotion turmoil then by all means pie and never.. refer.. to.. him.. again.

  213. 213

    […] to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or […]

  214. 214
    The Crafty Trilobite says:

    The world has a pretty clear consensus on pirates – we can blow up pirate ships without worrying about trial. If a Coast Guard or Navy officer accidentally blew up the wrong ship entirely, he would face court martial, and maybe the Navy could be sued in a civilian court for wrongful death. To avoid such results, we try to get pirates to surrender, then try them. But the basic principle, that we _can_ shoot pirates or blow up their ships, is not questioned, and there seems no good reason to question it. Why should organized, murderous renegades on land, outside the U.S., at least as hard to reach and immobilize as a ship at sea was in the 19th Century, be treated differently?

    But the key here, is the combination of armed, dangerous, organized, and outside the reach of our ordinary law enforcement authorities. If they’re in America (and not holed up in a fort or something), arrest them and try them like anyone else.

  215. 215
    Corner Stone says:

    @Omnes Omnibus: No jackass. The “reviled groups” are irrelevant.
    What about this are you not getting? Willfully or negligently?

  216. 216
    Corner Stone says:

    @Temporarily Max McGee (soon enough to be Andy K again): Fine. But they aren’t on the “side of terrorists”. They are on the side of their interpretation of the law. And that is what they are representing.

  217. 217
    Corner Stone says:

    God how I wish we had a bizarro looking glass.
    I would absolutely love to see how all of you Parsing Patriots magnanimously interpreted these actions under a different administration.

  218. 218
    gerry says:

    Meps! John, Meps! This is Obama, not Bush. If you criticize Obama, then you MUST support the Republicans!

  219. 219
    Mnemosyne says:

    @Keith G:

    You may not have been here for it, but there’s a history between us over who was going to pie whom, and I finally ended up doing it. So it’s more than the usual pie taunting you see around here.

    I do think it’s a courtesy to tell people when you first add them to the pie filter, though.

  220. 220
    4jkb4ia says:

    @burnspbesq:

    OK, I agree. The Adam Serwer piece was a masterpiece of snark. But what you get out of this one is “Trust the executive branch to interpret the laws of war”.
    It is double-edged because you are trusting the executive branch with life and death–but Yoo and Addington were trying to say that an order under the commander-in-chief power is a defense in a court of law. They were also trying to say that Congress has no right to tell the President what to do on a number of issues where Obama and Holder are more than willing to work with Congress.

  221. 221

    @Martin:

    “I’m constantly attempting to blow up planes over the US” isn’t imminent?

    Correct, saying words does not make violent action imminent. Imminence of violent actions make them imminent.

    If you’re seriously trying to claim otherwise, you’re a fool, and your check on the definition proves you can’t parse what you read.

    If someone was taking direct action, right now, toward violence, that would be imminent. If they had a plan of attack that we were sure about, and were undertaking it (“we attack at dawn”), that would be imminent. If they would like to do something, if they get the opportunity? That’s not imminent.

  222. 222

    […] but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or worse.How can anyone who vocally decried […]

  223. 223

    […] to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or […]

  224. 224

    […] to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, withsomerighteousexceptions, the silence is deafening, or […]

  225. 225

    […] but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or […]

  226. 226

    […] but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or […]

  227. 227

    […] to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or […]

  228. 228

    […] to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or worse.How can anyone who vocally decried […]

  229. 229

    […] to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with somerighteous exceptions, the silence is deafening, or […]

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