
Rand Paul: Show Us the Drone Memos - applecore
http://www.nytimes.com/2014/05/12/opinion/show-us-the-drone-memos.html
======
moskie
The context that these discussions often lack is that there are situations
where it is considered acceptable for law enforcement to kill a suspect. An
armed hostage taker being taken out by a sniper, for example. What is the rule
that says that could be OK, but killing Anwar Awl Alaki is not?

Superficially, the rule seems like it would be based on whether capturing /
arresting the person is not feasible, but doing nothing has a high probability
of resulting in that person being involved in a violent crime (killing of
hostages, participating in a terrorist act). Unfortunately, deciding if that
is true for a given situation is of course a judgment call. But to simplify it
down to "the government shouldn't kill people without a trial" overlooks some
things that need to be considered. Could he have been feasibly arrested? What
would have been the consequences of doing nothing?

~~~
mseebach
There's an very important distinction between killing someone to prevent
imminent bodily harm and putting someone on a kill list and sending the drone
out to get them. It's the distinctly non-imminent premeditation that makes the
difference.

~~~
clavalle
How does one get on a kill list?

I could be wrong but I'd tend to believe it is because they are a clear threat
and not because one has poor choice in friends or makes suspicious trips to
unusual destinations.

~~~
mseebach
> I could be wrong but I'd tend to believe it is because they are a clear
> threat and not because one has poor choice in friends or makes suspicious
> trips to unusual destinations.

I'd love to be able to trust the governments ability to decide who and what is
a 'clear threat', it'd make a lot of things a lot easier. But unfortunately
history - including fairly recent US history - is chuck full of evidence to
the contrary.

~~~
sokoloff
Not to mention the difference between "clear threat to the country" and "clear
threat to the government".

To the extent that there is a difference, I'm much more concerned about the
former, but worry that the government may (naturally) be more concerned about
the latter.

------
jseliger
This is incidental to the main argument, but I think it's important enough to
observe here:

 _Since that letter, I have learned more. The American Civil Liberties Union
sent a letter to all senators on May 6, noting that in the view of the Senate
Intelligence Committee chairwoman, Dianne Feinstein, “there are at least
eleven OLC opinions on the targeted killing or drone program.”_

I joined the ACLU a couple years ago in part because I'd read a lot about the
various illegal and immoral activities parts of the government has done and
didn't see an obvious way for me, a somewhat normal, random guy, to do much
about it. There's a lot of (justified) Internet outrage over the murder of
Anwar al-Awlaki, widespread spying, and so forth. But without converting
outrage to action, the outrage means very little.

Does my $50 do much on its own? Perhaps not. But it means something.

~~~
durkie
I once gave them a similar amount, probably 10 years ago. They have since
spent at least that amount on postage and call center labor asking me for more
money. This greatly discourages me from wanting to give more to them, even
though I like what they do with their non-outreach funding (however small that
may be)

~~~
termain
My understanding that much of the legal work is donated so outreach seems like
a reasonable expenditure, particularly if it increases revenues or brings in
more donated legal work.

~~~
genericuser
As the other poster I believe was trying to point out 'if it increases
revenue' is the wrong way to justify spending money to make more money.

Since revenue is not profit, and most charities are non-profits anyway, more
revenue does not necessarily equate to more money for betterment of the causes
the charity serves.

As a complete hypothetical scenario examining two extremes which hopefully do
not exist.

Charity B.A.D. could spend 100% of its revenue on seeking more donations and
maintaining existing ones, leaving no resources for actually doing anything
related to their cause, or distributing non monetary resources donated even.
But they double revenue every year.

Charity P.O.R. Could spend 100% of its revenue, which are fixed at $10 a year,
on advancing their cause.

My entire point is instead of saying 'increases revenues' you should say
'increases the money it budgets toward advancing its cause.'

------
mempko
What is remarkable is how the discussion is framed in the US. Why is it that
killing a US citizen without trial terrible while deliberating whether killing
a non citizen without trial is terrible not even part of the discussion?

Obama's assasination program throws away 800 years of progress of civilizing
the world.

~~~
liotier
At least it is a start. Once the killing of US citizen without a trial is
accepted as undesirable, then we will move on to attempting to have our
compatriots reflect on the morality of killing foreigners. I do not see a
problem with starting with a low hanging fruit to let our friends have a taste
of some sort of morality before trying to convince them to climb the tree for
more...

That said, even if we some day manage to summon political will to regulate the
use of violence by our government more strongly, violence of the threat
thereof is an essential part of relations between human polities - framing it
as uncivilized will not change that.

~~~
throwaway7767
> At least it is a start. Once the killing of US citizen without a trial is
> accepted as undesirable, then we will move on to attempting to have our
> compatriots reflect on the morality of killing foreigners

I was under the impression that killing US citizens without a trial had been
considered pretty much unthinkable until a few years ago, when your president
allowed it. I may be mistaken, as I'm not from the US and so not immersed in
the culture on a daily basis.

If that's true, I would say that the current development is in the opposite
direction of more restraint.

~~~
rayiner
> I was under the impression that killing US citizens without a trial had been
> considered pretty much unthinkable until a few years ago

U.S. citizens were killed in the bombing of Hiroshima and Nagasaki, and it is
believed that some of the ones that went to fight for the Nazis were also
killed by American soldiers on the battlefield.

~~~
throwaway7767
U.S. citizens were collateral damage as part of that war. That is not the same
thing as targeting an induvidual for execution.

------
rayiner
I appreciate the views of folks who ask questions like "why is it legal to
kill anyone without trial?" But I think these arguments overlook important
considerations. Courts only have power to the extent that the political
branches of government choose to abide by their pronouncements. When courts
overreach, there is the possibility they will be ignored, and as a result such
overreach poses a grave threat to the rule of law. It is for this reason that
it's important not to confuse the two separate questions of: "is this bad?"
and "is this illegal?"

In the U.S., the founders expressly rejected the idea that courts and judges
might bind the hands of the President and Congress in matters of foreign
policy and security. The judicial branch is, by design, a domestic
institution. When acting abroad, the American President, advised by Congress,
retains all the powers that are inherent in an independent sovereignty. And
that includes killing outsiders who pose a security threat. Sovereign nations
have always had that power, and I doubt there are any that would explicitly
disclaim that power.

Clearly, though, the powers the President can project domestically are
circumscribed by the Constitution and can be reviewed by the courts. The
touchy part is figuring out how to draw the lines: where does the jurisdiction
of the court end and the sovereign foreign-affairs authority of the President
begin? It is very dangerous to draw the line in a place that overextends the
courts' inherently domestic authority and jurisdiction.

I propose that it's better to kill a terrorist like Al Awalki by drone strike
than to degrade the judicial system by trying him in abstentia. Trials in
abstentia degenerate to farce, and are illegal under federal law
([http://www.slate.com/articles/news_and_politics/explainer/20...](http://www.slate.com/articles/news_and_politics/explainer/2003/06/when_can_a_defendant_be_tried_in_absentia.html))
as well as under the laws governing the International Criminal Court. Nothing
in the Constitution says that due process always requires a trial. Saying that
Al Awalki has due process rights, and that those rights are satisfied in his
peculiar circumstances by consideration of an executive tribunal, does less
violence to the rule of law than trying him in abstentia.

~~~
ProAm
Our country has one of the best snatch-and-grab military outfits in the world.
Go get this guy and try him. It will probably even cost less than sending a
drone with a hellfire attached to it, and it's his right as a citizen to be
tried before execution.

~~~
timsally
The argument that we should send special operations forces every time to go
grab people is a common one, but it falls short in several respects.

The first is that most people do not realize how long and difficult the modern
training pipeline is for SOF. Operators are extremely valuable and hard to
come by and you do not want to risk them unnecessarily when you have other
legal means of accomplishing the mission. For example, it takes 12 months to
even qualify as a Navy SEAL, and then another 12-18 months of platoon training
before a deployment. Only a tiny fraction of those who start the SEAL pipeline
actually make it through due to the difficulty of the training. It is for this
reason that the Navy offers $40,000 to anyone who can make it through the
training
([http://navyseals.com/files/ChallengeSEAL.pdf](http://navyseals.com/files/ChallengeSEAL.pdf))
and reenlistment bonuses for operators can approach $100,000. And never-mind
the cost of the equipment used during the operation. How much do you think the
stealth helicopter that got destroyed during the Osama Bin Laden raid cost?

The second is that there is some serious armchair quarterbacking going on. I
think its crazy to assert what our armed forces should and shouldn't do
without a full understanding of what you are asking of them. The complexities
of planning a SOF operation that goes deep into a place like Yemen are quite
involved. For more on this, I suggest the book _The Black Banners_ by Ali
Soufan. It possible (and even likely) that a capture operation for Anwar al-
Awlaki was either impossible, or possible but likely to end in the death of
al-Awlaki anyway.

~~~
ProAm
But this is what they do. This is why we train them. This is why we pay them
such (which is still paltry for the risks). Of course it's risky, and
extremely dangerous. My argument is that every American citizen deserves the
right of due process and trial before they are executed.

~~~
timsally
My point is that you and I have no idea whether a mission to capture al-Awlaki
is "what they do or not". To know whether such a mission is possible or
realistic requires knowledge that few people in the world actually have.
Whether to deploy SOF or not is a command decision made on a case by case
basis. We can't know sitting behind our computer terminals whether it was a
realistic option or not. I assume it wasn't, otherwise why wouldn't they have
tried to capture him? I imagine he would have been a very valuable source of
intel.

There are a lot of people out there who seem to feel pretty strongly about
sending our armed forces in harms way in this type of situation. I can't help
but wonder if any of those people stand to lose anything if such an operation
were to go poorly. It just boggles my mind that we would risk American lives
and millions of dollars of training and equipment when we have other legal
options that are less risky.

~~~
ProAm
Then I think you have to let Anwar al-Awlaki go, plain and simple.

>when we have other legal options that are less risky.

What other legal options are you talking about? What they are doing is 100%
illegal, it goes directly against the 5th amendment. Straight from the
article:

"The Bill of Rights is clear. The Fifth Amendment provides that no one can be
“deprived of life, liberty, or property, without due process of law.” The
Sixth Amendment provides that “the accused shall enjoy the right to a speedy
and public trial, by an impartial jury,” as well as the right to be informed
of all charges and have access to legal counsel."

------
jasallen
I am no lawyer, and so can't say anything about a legal opinion. But from a
"my way of looking at it" perspective: someone who is actively trying to kill
american citizens, and is, meanwhile, preventing himself from being tried by
hiding in a foreign country should be stopped. Better for all involved if he's
stopped without killing, but stopped either way.

I would draw the comparison to someone holding a hostage at gunpoint. You
don't put that person on trial before final judgment comes down.

~~~
Ygg2
On the other hand, US has a sloppy record of actually getting the guy they
wanted. [http://www.policymic.com/articles/89135/8-stories-of-
civilia...](http://www.policymic.com/articles/89135/8-stories-of-civilians-
killed-by-u-s-drone-strikes-in-yemen)

I would draw the comparison of someone holding a hostage at gunpoint, so cops
go and kill an innocent guy in neighborhood that is pretty much unrelated with
the person holding the first as hostage. I'd definitely want to setup a way to
judge those incompetent cops.

~~~
jasallen
I don't disagree you there. Especially where such high stakes are involved
everyone must be held accountable.

------
yaakov34
Wasn't there some kind of unpleasantness around the time of Abe Lincoln's
presidency, resulting in the killing of several hundred thousand American
citizens without trials?

It really irks me when this kind of discussion is focused on US citizenship,
as if nobody else counts. Either the US government has a right to decide that
somebody somewhere is so dangerous that he needs killin', and then go whack
him, or it doesn't. I don't see how it's not OK on due process grounds, but
only if the guy is a US citizen. Anyway, this kind of rule is likely to result
in some kind of a circular arrangement, in which the US whacks undesirable
French citizens and France whacks German citizens in return and then Germany
reciprocates by killing US citizens, and hey - no rules are broken.

BTW, I can't say that I am against all government-ordered killings in
principle. Governments conduct wars and military operations, sometimes with
good reasons. And wars don't just result in killing people "on the
battlefield", as Rand Paul says. Suppose that some terrorist group is
preparing an attack somewhere - are you supposed to send special forces after
them with a death sentence from some court in their pocket?

~~~
rayiner
> Either the US government has a right to decide that somebody somewhere is so
> dangerous that he needs killin', and then go whack him, or it doesn't.

Every nation has the sovereign right to kill people in other nations. It's a
fundamental precept of sovereignty. However, nations also bind themselves to
their own laws. In the U.S., the Constitution gives U.S. citizens certain
rights even when they are not on U.S. soil. That is the only thing that would
make it illegal for the U.S. to kill someone on foreign soil.

~~~
vdaniuk
>Every nation has the sovereign right to kill people in other nations. It's a
fundamental precept of sovereignty.

Citation please?

~~~
michaelt
Thomas Hobbes wrote that, in the absence of organised societies/government to
pass and enforce laws, people are in a "state of nature" where every person
has a natural liberty to do anything they think necessary to preserve their
own life (what he termed war of all against all).

Civil governments remove this "state of nature", curtailing liberties and
creating rights - for example, giving you the right not to be murdered by
while taking away your liberty to murder other people.

As there is no government of governments to pass or enforce international
laws, nations are in a permanent state of nature. One nation bombing another
over some land is like one wolf fighting another over some dead prey - they're
just doing what they naturally do. It's not like the wolf-police are going to
stop them.

~~~
dublinben
Hobbes's _Leviathan_ is essentially a work of fantasy fiction. It has little
to no grounding in historical fact. His idea of a "state of nature" is an
unsupported assertion.

~~~
rayiner
Leviathan is a philosophical work, not an anthropological one. The "state of
nature" doesn't denote a real period in human history.

~~~
dragonwriter
> Leviathan is a philosophical work, not an anthropological one. The "state of
> nature" doesn't denote a real period in human history.

Right, its a thought experiment like Schrödinger's cat.

------
DanielBMarkham
Interesting bit of political wonkery ahead.

There's a way to get rid of a president. It's called impeachment. Impeachment
is a political trial for political crimes. Basically looking like an idiot.
It's not a criminal trial.

Why is that important? Because we don't criminalize politicians doing their
job. It's expected that the president do things which would never be
acceptable if an average citizen does them: kidnapping spies, blowing up
things here or there, sending warships in harm's way, and whatnot. We don't
call these crimes because in point of fact somebody has to make decisions like
this. It's part of the job.

(I'm not approving of any of this, simply trying to explain how the system
works.)

So I agree with Mr. Paul's first sentence, with one change: "I BELIEVE that
_the systemic killing of American citizens_ without a trial is an
extraordinary concept and deserves serious debate."

Or, in other words, killing any American overseas without a trial is wrong all
the time, but I understand presidents do things that are extraordinary. One of
the jobs of Congress is to provide a check on his power. (Congress has made a
terrible mess of this oversight responsibility. Congress is ultimately at
blame in all of this for giving a wink and nob when it was started.) What's,
for lack of a better term, _evil_ , is the creation of a system to
automatically do things that bend the rules to this degree without the
president having any skin in the game at all. He gets this crazy-broad power,
and he's not risking his office when the decision is made to use it. That is
insane. And I do not believe a debate has anything at all to do with it. It's
wrong. It should stop. There's nothing more to be said.

If the president wants to go off on some bone-headed assassination adventure,
he won't be the first one, Congress should debate and take action depending on
the specifics. But if he wants to create a system whereby robots are used to
assassinate citizens abroad on a regular basis without trial? There's no
amount of debate in the world that's going to make that work.

------
dignati
"I believe that killing an American citizen without a trial is an
extraordinary concept and deserves serious debate."

Opposed to killing anyone without a trial?

~~~
halviti
War has gone on for as long as civilization has been around, it is not an
extraordinary concept.

~~~
throwaway7767
That's not what is being discussed here. There is difference between a combat
situation as part of warfare and targeted executions of induviduals outside of
war.

~~~
clavalle
You must have a much clearer idea as to what 'combat situation' and 'targeted
executions outside of war' means than me.

Is it acceptable to bomb a tent of generals planning a campaign in the middle
of a war?

~~~
pjc50
Yes; although war has rules. It's not clear whether this is part of a war or
not.

Is the United States at war with Yemen? No.

Are the Yemenis being bombed civilians or military? Well, they're not the
military of any particular state. We're in a murky territory here now, where
the US gets to unilaterally declare war on individuals and deem them "not
civilians" so it's ok to bomb them.

~~~
clavalle
This is not a war with a state. That would be much more clear cut.

We are clearly not at war with Yemen. Yemen, the state, is cooperating with US
efforts in their country.

The US gets to unilaterally go to war with individuals (that are part of a
larger movement that relies on extreme violence against non-combatant
civilians to achieve its goals, it is important to remember) because they've
unilaterally gone to war with the US.

~~~
fleitz
The US didn't seem to take this view when Osama was doing it to the Russians.

------
wahsd
Dear world: We can execute you all day long without regard, but we can of
course not execute an American, because that would be horrible.

I hope I am no longer around when a different, tyrannical regime develops a
technology that gives them an edge that negates all of our defenses and we are
subject to random drone attacks on our neighbors, communities, cities.

Face it, we are an unprincipled, unjust tyranny. We are more like than not any
other tyrannical regime that had legal protections in place for the approved
group of people, while totally negating those rules for people that weren't
part of the approved group. It's nothing more than present day, larger scale
primitive tribal society. It's pathetic.

If we want extrajudicial executions, we need transparent and verifiable proof
and capital punishment for abuses and even mistakes. The higher the stakes,
the more costly the mistakes.

If everyone is so confident that there is nothing wrong with their actions,
why are they not stepping forward demanding capital punishment for any
transgressions.

------
qwerta
> Show us the legal case for executing __a United States citizen__ without a
> trial.

It kind of says it is OK to kill non-citizen untermensch. I find this attitude
very common and highly disturbing.

Russian army managed to takeover Crimea with only handful of deaths. If you
count death toll, US army looks like bunch of happy-trigger-amateur-cowboys.

------
jbapple
From the article: "I don’t doubt that Mr. Awlaki committed treason and
deserved the most severe punishment."

Why does the author not doubt it? I doubt it until I have seen evidence.

It is my understanding that Awlaki called for the murder of American
civilians, but I do not believe that meets the legal standard of treason. The
Obama administration has said that Awlaki was involved "operationally" in
planning attacks on Americans, but the national security state has said all
manner of speech constitutes operational involvement in terrorism, including
Javed Iqbal's broadcast of Al Manar, a Hezbollah-controlled television
channel, and the Humanitarian Law Project's attempts to teach peaceful
conflict resolution strategies to a terrorist group.

~~~
vidarh
He is actively pre-empting attempts to derail his primary point.

It's possible he also believes that Awlaki committed treason, but more
importantly, by making that point without any kind of moderation, he's making
it substantially harder to accuse him of wanting to be soft on those horrible,
evil terrorists.

He's also implicitly making the argument for a trial stronger: If it is
entirely certain that Awlaki committed treason, then surely the government has
clear evidence that would have made a trial a formality?

------
transfire
"I don’t doubt that Mr. Awlaki committed treason and deserved the most severe
punishment" And yet has anyone heard exactly what is was that he did? All I
ever heard is that he put out propaganda about how America sucks. But I have
never actually heard any of it.

~~~
mikeyouse
It was _everywhere_ when he died;

His propaganda wasn't that America sucks, it was a call to take up arms
against US targets. He exchanged emails with the Ft. Hood shooter, he advised
the underwear bomber, he was not a good guy..

[http://www.theguardian.com/world/2011/sep/30/anwar-al-
awlaki...](http://www.theguardian.com/world/2011/sep/30/anwar-al-awlaki-video-
blogs)

------
mkhalil
8 Stories of Civilians Killed by U.S. Drone Strikes in Yemen

[http://www.policymic.com/articles/89135/8-stories-of-
civilia...](http://www.policymic.com/articles/89135/8-stories-of-civilians-
killed-by-u-s-drone-strikes-in-yemen)

------
fredgrott
The problem is its not civil law, this under war law..as terrorists are
considered not to have the same rights as combatants under the Geneva
Convention..

Spies are under similar guidelines..sometimes they get trials sometimes they
just get shot

~~~
fleitz
Yes, and we've always been at war with east asia.

------
jqm
I seriously wonder why the rest of the world tolerates the US drone program.

Sure, they probably __Mostly __get bad guys, but the implications and
ramifications of being able to kill anyone in the world at any time by remote
control at the whim of a select group of people are too large to ignore. The
fact that some of them are US citizens is just legal icing on the cake.

It is asked very often but bears repeating one more time... Why is it that
people feel the need to take up arms against the US? I don't think this is a
namby pamby kumbaya question either but is directly relevant to our long term
security.

------
throwaway7767
Executing non-US citizens is fine, apparently. I don't see anyone objecting to
that. It's another fine example of US exceptionalism.

Note that I'm talking about executions, not killing as part of warfare.

~~~
clavalle
>Note that I'm talking about executions, not killing as part of warfare.

I'd be curious to see where you, personally, would draw the line.

Is it not warfare to kill someone that is plotting on harming civilians as a
primary means to advance their agenda?

~~~
throwaway7767
> Is it not warfare to kill someone that is plotting on harming civilians as a
> primary means to advance their agenda?

I think you just defined a whole lot of law enforcement operations as warfare.
I do not agree with that definition, nor do I suspect many would.

If the US had invaded Yemen and they were targeting specific people to help
with their strategic objectives there, that would be a more fuzzy area, and
the morality of that would depend on the situation of the invasion.

As it stands, the drones are executing people in countries the US is not at
war with.

That said, where do _you_ personally draw the line? Now, take that situation
and imagine that instead of the US sending robots to kill muslim preachers,
that some place like Iran or China had sent in robots to the US to kill a US
citizen like Jim Bell (after all, he has advocated for assassination markets,
so the same argument can be made that he is dangerous). Is the line in the
same place in that situation?

~~~
clavalle
>the drones are executing people in countries the US is not at war with.

Because we are not fighting a state. We are _cooperating_ with these countries
not fighting them. They don't have the resources (or the resources are
unreliable) to treat these things as law enforcement problems.

And I'd personally draw the line at a clear and credible threat. If they
demonstrate they have the will and have, or are actively trying to obtain, the
means to attack.

For example, if someone speaks about killing people then amasses a bunch of
explosives, it is time to act. If someone seems to be acting in a command
capacity to people that have the means and will, as previously described, it
is time to act.

On the other hand, if someone happens to be in contact with someone in that
first group but does not seem to be aiding them (passing commands, gathering
materials etc.) then that person should not be targeted.

If we could go to these countries and tell them "Listen, we have intelligence
telling us that this person is training people and sending them into this
country to kill people. Could you go grab them for questioning and maybe
gather some evidence and put them on trial?" and if they would act on that,
that'd be great. I'd be all for that. But that seems like wishful thinking
more than anything.

------
rollthehard6
Worth a listen on this topic - Radiolab on the 60 words that define 'The War
on Terror'. Includes a discussion on the group who sit and discuss who ends up
on this kill list.
[http://www.radiolab.org/story/60-words/#13999071198021&%7B%2...](http://www.radiolab.org/story/60-words/#13999071198021&%7B%22ready%22%3Atrue%7D)

------
hawkharris
I hesitate to make historical comparisons because many are melodramatic, but I
think it's fair to relate this time to another dark period in U.S. history.

The word "terrorist" has become so powerful that it supersedes judicial
processes. In early 2002, federal agents harassed many of my friends who
belonged to a mosque in the Northeast. Some were detained and abused by police
officers. Sadly, this behavior has continued, further evolving into a vehicle
for racism and religious prejudice. I recall a story on HN several months ago
about a startup investor who was detained in an airport all day because he was
Muslim.

If you don't like your neighbors because of their names, their traditions, the
color of their skin or the smell of their food, you can simply call them
terrorists. That word, even when it is devoid of concrete evidence, has the
power to ruin someone's life. In this specific sense, our modern fear of
"terrorists" reminds me of the power of the word "communist" during the 1950s,
in the McCarthy era.

Eventually, most Americans saw McCarthy's so-called Red Scare for what it was:
an excuse to act based on personal prejudices and political agendas.

------
Shivetya
It won't stop until the same officials allowing this, supporting this, are put
on a similarly effective list.

Technology has simply given the tool to anyone and its a matter of time before
that threat becomes far to real against even safe targets

------
DanBC
A lot of people are asking for trial by jury so that we can be sure he is
guilty.

That doesn't seem so fail-proof seeing as maybe 4% of death row inmates have
been wrongfully convicted.

------
lazyjones
Hasn't the CIA been doing this for decades anyway, like many other secret
services around the world?

------
norswap
Or any human being that isn't an immediate threat for that matter.

------
xname
Wow! I mean WOW!!! You guys must read those comments on New York Times
website. Especially those NYT/Readers' Picks. WOW! Really EYE OPENING! WOW!

