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Someone Just Leaked Obama's Rules for Assassinating American Citizens (reason.com)
225 points by erichocean on Feb 5, 2013 | hide | past | web | favorite | 257 comments

For everybody commenting on this article, please take 45 minutes to read the document. It applies only to the following scenario:

1) The US Citizen has to be a Sr. Operational Leader of al-Qa'ida.

2) An informed high level official of the US Government has determined that the targeted individual poses an imminent threat of Violent Attack against the United States.

3) Capture is infeasible, and the United states continues to monitor whether capture is feasible.

4) The operation would be conducted in a manner consistent with applicable law of war principles.

This Document does not consider American Citizens who are not Sr. Operational Leaders of al-Qa'ida. If you are just an American Citizen who has become a low-level Al-Qa'ida terrorist who is planning imminent attacks on the United States, that the government has discovered, and they are unable to capture you, this document does NOT provide justification to target you.

It's a dense document, and hard to read with all that NBC NEWS watermarking, but take the time to read it before commenting on it.


Because the military and law enforcement obey rules and don't break them all the time with ZERO punishment for doing so, or if it's bad enough they find one scapegoat for the whole chain of command like http://en.wikipedia.org/wiki/Lynndie_England

We enable pretty freaking horrible things all the time but the worst is that we justify it.

How about the kid in Gitmo who killed himself after being found innocent TWICE but they still refused to release him?

England served jail time and was dishonorably discharged. The others in Abu Ghraib were also punished in accordance with General Court Martial proceedings, so I'm not seeing the "ZERO punishment" part of that.

Well, the OIC for Abu Ghraib didn't get court-martialed or relieved for dereliction of duty; did they? It was a case where a systematized culture of impunity for bad acts was condoned until it became a public relations issue; at which time only those at the lowest level were publicly punished; and the responsibility for allowing such a culture to flourish was never properly accounted for.

As with much of American society these days, the application of justice is capricious and unpredictable; with the signal exception being that the upper echelons suffer fewer consequences than the grunts who do the work.

There was no-one in command prosecuted. They were scapegoats.

Were the officers in charge aware that this was going on ?

Standard military rules apply; they were in charge and responsible for being aware of what was happening under their charge.

Also, yes, of course they knew.

There's a good This American Life episode interviewing England. She doesn't exactly portray herself in the most flattering light (which is why I think she's telling the truth) and it's interesting to hear what she has to say about the before, during, and after.


It was their job to know what was going on.

In particular, this part is interesting on page 10:

"Finally, the department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations. It is well established that "matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention" because such matters "frequently turn on standards that defy judicial application," or, "involve the exercise of a discretion demonstrably committed to the executive or legislature" Were a court to intervene here, it might be required to inappropriately to issue an ex ante command to the President and the officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa'ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force [emphasis mine]

edit: The entire foundation for Document this is based on the following from page 14:

"The United States is currently in the midst of a congressionally authorized armed conflict with al-Qa'ida and associated forces, and may act in national self defense to protect U.S. persons and interests who are under continual threat of violent attack by certain al-Q'aida operatives planning operations against them."

What is the requirement to be identified as an operational leader of al'qaeda? What checks and balances are in place to prevent extra-judicial killing of US citizens outside of American soil? Are there any?

Also, what happens if, say, you happen to accidentally do business, unknowingly, with such a person and end up in the same vicinity as them when a drone strike is opportune? Is your life forfeit regardless of the other restrictions?

Why is this a matter of an internal white paper instead of a national federal policy debate? This is not a good trend.

It still violates due process.

It might, but it doesn't clearly do so. Due process does not mean a trial. It means what is reasonable under the circumstances. The length of the paper tries to show that there are no reasonable alternatives in the case capture is not feasible. It's a non trivial argument.

Yes it does, because the protections provided by the constitution allow for the deprivation of life, liberty, property, etc. in accordance with the "due process of law."

There is no law here. Only an arbitrary, internal memo.

Police routinely use lethal force against armed suspects. The armed bank-robber doesn't get a trial before he gets shot. While this is a low-bar, morally, it's not something unlawful. It's not even particularly controversial, unless there's a clear abuse of power.

The difficulty with this kind of armed-conflict is similar to the problems with prosecuting higher-ups in organized crime. They won't be holding the gun, or directly doing the dirty work. They are actively involved in planning operations, though.

Is this a dangerous policy? Sure. Will there be cases of abuse? Yes, like any government policy (note, I'm not singling out government here; it's a property of any collective system where individuals don't bear full responsibility for their decisions).

Pursuant to the AUMF.

Yeah, there is no room for abuse in that little gem.

The US Supreme Court has already decided at least once that the AUMF could not be cited in defense of the goverment's actions (in this case, military tribunals) because those actions violated the principles of the Geneva Conventions, among others.

That's the whole problem with this. The accused never get a chance to defend themselves in court, are presumed guilty and sentenced without any reasonable defense.

None of those things are due process problems necessarily.

You need to offer your reasons for drawing that conclusion if you expect to have it taken seriously.

I did. See the other thread.

I think there's a major qualitative difference between what process you owe to people who are already in your custody and that which you owe to people who are at large and attempting to do you harm. Likewise we find the death of a suspect or convict while in custody far more troubling that that of someone who engages in a shootout with police rather than face capture.

I'd be willing to believe that is all if Obama (or was it Bush) didn't start enlisting children as possible militant targets. If they can bend that rule to change statistics, they or someone else could bend the rule to mark anyone as target.


  1. Well you looked like one because of the beard
  2. You or someone that looks like you promised to "Cleanse the US from face of Earth", etc. 
  3. You had a piece of wood that looked like a gun, so capture was infeasible
  4. State you belonged, sponsored some terrorist 10 years ago.

So in other words, it's not "Obama's Rules for Assassinating American Citizens."

Samir Kahn was a propagandist/journalist, Anwar al-Awlaki was a YouTube troll.

This unchecked expansion of executive power is happening all over the world. Enabled by technology, but also lack of public outrage, soft, welfarish* dictatorships are in the works. Outwardly, it looks democratic, but the democratic principle rests on a limitation of power. Currently, there is no limit, so long as the right language and people are targeted (whistle-blowers, traitors and ultimately, "terrorists"). The public is not yet aware of the danger and by the time they are it may be too late.

*In a "guns and butter" sort of way

Outwardly, it looks democratic, but the democratic principle rests on a limitation of power.

No, democracy is unlimited power by the majority.

A constitutional republic is a system that allows the majority to exercise power within a restricted scope.

EDIT: I completely agree with your point, though. It probably _is_ too late, but for it to not be too late, people have to learn what's what. And for that to happen, people need to understand what a democracy is and why it's not the right solution.

The distinction between a democracy and a constitutional republic is not as real as you make it sound. The only difference is that the constitutional republic has an old piece of paper sitting in a museum somewhere. As we all know, paper has no physical power, so the supposed restrictions on government power still must be enforced (either by a willing government, while that lasts, or an armed populace).

No, it _is_ fully as real as I make it sound, but it is an _intellectual_ distinction. People who would like the government to have arbitrary powers argue that the difference isn't really real, and it's important to counter that.

The only difference is that the constitutional republic has an old piece of paper sitting in a museum somewhere.

No, the specific contents of that piece of paper also matter. Not every constitution establishs a constitutional republic, or a good one.

As we all know, paper has no physical power, so the supposed restrictions on government power still must be enforced (either by a willing government, while that lasts, or an armed populace).

I agree here, and this is the tricky part.

Hopefully more people will come to realize that while they may be in the majority on some issue for some window of time, overall, they need protection from arbitrary governmental power.

The tricky part is what makes all the difference. If majority are smart, democracy would suffice. If not, the constitution will just be treated as a piece of paper in a museum and being a republic would serve no purpose.

A chain is only as strong as its weakest link...

If majority are smart, democracy would suffice.

It's not really a matter of intelligence.

Most people, including most intelligent people, do not believe that a person's life completely belongs to himself or herself.

Instead, they think it belongs to the family, or the community, or God, or the nation, or the government, or those with less money.

It's actually a major intellectual achievement to be able to affirm the principle that an individual's life belongs to himself.

It’s an uncommon distinction, made only by very few people in that way.

“Democracy” never meant only majority rule. “Democracy” is more commonly used as an umbrella term, that can refer to majority rule, but also constitutional republics.

It’s all semantic pointlessness anyway, obscuring meaning by fighting meaningless bullshitting battles.

Why obscure meaning by insisting on making a difference between democracy and constitutional republic when it would be much easier to just directly contrast and compare “majority rule” and “constitutional republics” with each other? You don’t even have to use the word “democracy”.

It is all perfectly clear and using “democracy” to describe a constitutional republic is not some grand conspiracy.

It’s pseudo-intellectual semantic stupidity.

But if you want to embrace this semantic wankery then one thing is clear: democracy never only referred to majority rule. That’s completely absurd, it was always broader than that. (Looking only at Athens suffices here. That was never a constitutional republic, but it also was never a majority rule. For example, some offices were assigned randomly.)

So I just finished writing a comment about this here [1] that is highly relevant (moreso than the rest of this comment).

But I completely disagree with you. People use the term "democracy" constantly, so figuring out what it means (and what they mean by it) matters. So just ignoring it, as you suggest, is not a viable option at all.

From reading [1], you will pick up that I think we should define these terms by their essence, not (say) how closely some specific historical cases did or did not approach the ideal.

Moreover, it's been intellectually important for progressives to insist that the US is a democracy since the progressive movement began (1900s or thereabout), because democracy is necessary to implement their ideas. I'm not saying it was a grand conspiracy. Democracy is a core part of progressivism.

[1] http://news.ycombinator.com/item?id=5169654

You are clouding the issue by not talking clearly about it. It’s semantic wankery, nothing more. And it’s irrelevant. Discussions about what words really mean always are.

We can use your weird definition of democracy, of course. That is perfectly acceptable. But you should also be aware that next to no one else is actually using that definition when they say democracy.

What is not possible is to define words in a certain (weird) way and then to infer from that what people are really thinking when they say democracy.

“Progressives” do not mean mob rule or majority rule when they say democracy. That is just absurd. Just because you define that word that way doesn’t mean everyone else is or wants to express what you defined they want to express.

You are just completely and utterly wrong, with a worldview clouded by ideological delusions.

(It really is an aside, but all progressives I know are strongly in favor of strong constitutional protections of rights that cannot be overridden by any majority, they are strongly in favor of a separation of powers and due process. When they say they want more democracy they most certainly don’t mean that they want to make it easier to abolish constitutional rights. You are attacking the most complete strawman ever.)

What is not possible is to define words in a certain (weird) way and then to infer from that what people are really thinking when they say democracy.

Agreed. People don't automatically follow your definitions. I'm not arguing that.

“Progressives” do not mean mob rule or majority rule when they say democracy.

They definitely do mean majority rule. Absolutely. What is democracy, if not majority rule?

You are just completely and utterly wrong, with a worldview clouded by ideological delusions.

You can't logically criticize my entire "worldview" based on how I think we ought to define the words "democracy" and "constitutional republic," and whether or not the definitions of words actually matter.

(It really is an aside, but all progressives I know are strongly in favor of strong constitutional protections of rights that cannot be overridden by any majority, they are strongly in favor of a separation of powers and due process. When they say they want more democracy they most certainly don’t mean that they want to make it easier to abolish constitutional rights. You are attacking the most complete strawman ever.)

Given that you use British Empire-style perjoratives (which are, by the way, rather harsh to my American ears), I don't think we're talking about the same thing by "progressives," because you're describing them incorrectly. According to Wikipedia, some parties in Europe have been using it to mean something different.

When they say they want more democracy they most certainly don’t mean that they want to make it easier to abolish constitutional rights.

The #1 hot progressive cause in America right now is gun control, which (in totality) requires abolishing the Second Amendment to the Constitution. Progressives also had to change the Constitution to permit income tax, which previously was a constitutional protection. So, you see, you're just wrong. These are seen as "democratic" reforms, by the way.

“They definitely do mean majority rule. Absolutely. What is democracy, if not majority rule?”

No they don’t. How did that crazy idea ever cross your mind?!

I've never understood why some people insist that republic and democracy are mutually exclusive terms. Can you define your terms for me?

To me, what you're saying isn't different from saying "no, it's not feudalism, because there's a monarch".

Democracy: A system of government in which every citizen is entitled to participate equally in government.

Republic: A system of government by the citizens, as opposed to a monarch, emperor, or dictator.

Constitutional republic: A republic in which the powers and functionining of government are restricted by the constitution.

I don't necessarily think "democracy" and "republic" are mutually exclusive.

I do think "democracy" and "constitutional republic" are exclusive.

For example:

In a democracy, someone else's wish to confiscate my property counts equally with my wish to keep my property.

In a constitutional republic, the government's powers are limited by the constitution, providing protection for citizens against arbitrary governmental powers.

Of course, you could have a constitutional republic with a poorly-functioning constitution, which in effect functions more and more as a democracy. So there are certainly mixed cases.

Some people would resist the definitions I have given, because I define concepts so clearly. But that is the very point of concepts: to capture the essence, not to capture the mixed cases. And objective concepts are a necessary part of rational thought.

You're limiting the definition of democracy to 100% pure direct democracy i.e. literal mob rule. I struggle to imagine what such a government would even look like (on a large scale, at least).

I tend to think of a republic as opposed to a principality (it's right there in the name, even!). That is, the machine of government is thought to be held publicly rather than privately, in a republic. Suffrage has nothing to do with it, although democracy is a common implementation of a republic. (Other examples might be a military government, a religious oligarchy, or a corporate oligarchy). It is a rather broad term.

Constraining what the citizens are allowed to do, or how they are allowed to do it, via fair voting representation in their government (that is to say, limiting the powers of their duly-elected government by a constitution) does not to my mind diminish the fact that it is a democracy. Nor does it diminish if they elect representatives rather than participating in endless referendums.

My thinking on this seems clear and objective enough to me.

So you don't like welfare, and you associate it with dictators for some reason, and it will look like democracy but really be something else, and some unspecified drastic action must be taken because after that all opposition will be snuffed.

It should be interesting that you have laid out a set of propositions which could persuade people to overthrow a democracy with violence (after all, it's not a real democracy and after all, if we don't stop it then THEY will snuff US, so we had better act first hadn't we?)

Be careful about who you support, if you build a machine to overthrow the government you might get more than you bargained for from that powerful new machine.

> So you don't like welfare

I don't think that's what he meant. The way I understood it is that by "welfarish" he means "ostensibly benign" as part of projecting a populist image.

I don't know. Some people have real difficulty discerning the difference between welfare, socialism, communism, and dictatorships.

A recent example of this is Egypt.

Sigh. What’s this ideological drivel doing here?

Dragging welfare into this doesn’t even begin to make sense. You do it purely for ideological reasons.

> Dragging welfare into this doesn’t even begin to make sense.

If the state feels it's appropriate to take from one and give to another, then it must also feel that it is appropriate to simply take and eventually, not to merely take property but life itself. It's the taking mindset and mentality that's the problem.

Yes, that is the ideological view exhibited here. A near perfect description of it, actually.

What you say is not, in any sense, the truth or self-evident or anything like that, it’s just one ideological view of many.

I feel there’s an excluded middle here. The state could perfectly reasonably consider it ok to take taxes, but not life. Or to take life in some circumstances (war), but not others (death penalty). Your argument appears to be that because something is a bit true, it has to be completely true. I don’t find this to be the case in practice. There are plenty of partly true things in life.

Everything is ideology if you are consistent in your train of thought ("An ideology is a set of ideas that constitute one's goals, expectations, and actions. An ideology is a comprehensive vision, a way of looking at things").

You attack his doing so purely for ideological reasons.

Exactly. And that’s the problem.

You can't escape having an ideology, so no that's not the problem. The problem is with hypocritical, contradictory ideologies, e.g. your anti-ideology ideology.

No, the problem is stating (known to be) extremely controversial axioms of an ideology as self-evident truths without reason and justification. It’s unnecessary bullshit.

As in how you just stated as self evident your ideology that one must always provide reason and justification? What's unnecessary bullshit is your own wild-eyed hypocrisy.

Democracy does not rest on a limitation of power. For the better part of US history, there was almost no Constitutional check on state police power (since the Bill of Rights didn't apply to the states until the 14th amendment was construed to make it so).

> For the better part of US history, there was almost no Constitutional check on state police power

Yeah, that was a mistake which was corrected.

You could just as easily say that democracy doesn't necessitate allowing all people to vote regardless of skin pigmentation, since at one point we had not yet recognized that it in fact does.

My point is that we had a functioning democracy for a century before we decided everyone had ferderal due process rights against state police power.

My point is that I don't accept your definition of "functioning". Was the democracy functioning when only men were permitted to vote? I say not.

Then define "functioning" positively. I'm kinda curious to see what you come up with.

Frankly just something that is a democracy at all. An elite ruling class that votes on things doesn't cut it for me, maybe it does for you.

I realize you have preferences. I, too, wish the world were as perfect as I imagine it could be. But that doesn't actually provide any ground on which we can communicate and build from.

You only have to compromise your definition of democracy if you are starting from the assumption that we must necessarily be included in that definition. In normal conversation untainted by prejudices of patriotism we are perfectly capable of using terminology that represents a state never realized in reality.

"I don't know" would have been acceptably mature response, but hey, I can appreciate bland rhetoric, too.

Bland rhetoric? You are just accusing me of redefining a word beyond usefulness for refusing to compromise standards for the sake of historic revisionism. How is "I don't know" even a response to what you wrote? You didn't ask a question...

I asked you what a functioning democracy was.

You said it's any democracy at all. And then you dropped a bunch of irrelevant drivel about patriotism because it furthered the pedantic argument you had with rayiner.

You never answered the question. Indeed, you refused to answer it.

> Democracy does not rest on a limitation of power.

Democracy doesn't, but liberty and civility does. It's not even about an explicit limitation of power, but a perceived limitation.

If something is unthinkable, it's irrelevant whether some piece of paper somewhere says you can't do it ... it's unthinkable, so it won't happen. The reason all of this is happening is that not only is it very thinkable, but it is outright tolerated by the populace at large ... even glorified.

> ... it's unthinkable, so it won't happen.

To a certain degree, that's true, till someone interprets that as a loophole, thinks it and does it. It's why law constantly evolves --to adapt to new exploits (as well as for get rid of outdated laws.

How about the Bill of Rights?

"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals.... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." (Albert Gallatin of the New York Historical Society, October 7, 1789)

The Bill of Rights was not conceived to limit states, only the federal government. It was the 14th amendment and some clever reading by SCOTUS that extended it to states a century later.

Thanks for the addition. So, would it apply in this case to limit such Federal government propositions?

Maybe. This is federal actiom. Killing is deprivation of life. US citizens are generally construed to have due process rights anywhere in the world. So due process clause applies. The question, then, is what process is due? The clause means exactly what is said: people are entitled to due process, not more process than is due. Due process doesn't always mean a trial. It's a sliding scale. The more something looks like something that would require a trial, the more process is due.

What process is due when you go to Yemen and take up arms against the US? Should the government have to apprehend you abroad and bring you in for trial?

If it sounds fuzzy its because it is. The framers used a wiggle word like "due" to give interpretive leeway. If they had meant hard and fast judicial process they would have said so.

I think I see a problem with the reasoning on the very first page (second para.):

> The President has authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law. (emphasis mine.) <

An armed conflict under international law is a war; and war is a power of nation states, not non-governmental actors (NGAs) no matter how violent. Not very many years ago the US began imprisoning non-Citizens on the justification that al Qaida (an NGA) was ineligible for protection by the Geneva, Hague, and other conventions, and as such the prisoners were neither criminal nor military defendants but prisoners of the President.

Now they are arguing that war does exist, permitting the US government to act violently against a US Citizen despite the Constitutional prohibition against punishment without trial. The administration's actions are inconsistent: despite a state of war now supposedly existing, prisoners of war still are not afforded the rights guaranteed to PoWs; despite the writ of habeas corpus not being suspended, US Citizens may be summarily executed at the order of the President.

I'm curious if people actually have more of a problem with this than invading Iraq which caused the death of thousands if not millions of innocents. Now history is being rewritten that Iraq was okay. Why are American citizens more important than thousands of innocent Iraqis?

We should be protesting war in all forms, not just assassinations.

But we're going to have enough problems domestically in a few years with drones everywhere.

I can think of two big reasons:

Invading Iraq was done after an enormous amount of public debate, with the broad approval of Congress, the UN, etc. It may not have ever been the right decision but it was unambiguously "okay" from a following the rules in letter and spirit sense. These assassinations are being done in secret by a president who claims he doesn't have to explain himself to anyone.

There isn't a ton of upside in invading a country, compared to the amount of effort and oversight involved. There are easier ways to funnel money to the Military Industrial Complex or distract from domestic political shame. The only real upside is ideological, either rightly or wrongly you think it's a good idea for whatever faction you align yourself with.

But assassination of the local population is so very useful. It's a Dremel that a bad leader can use as a half-ass solution to any problem. For the kind of person who would aspire to be President, the logic of assassination is so clear that you don't even have to be paranoid: "That person is an inconvenience to me. I have the power to kill him. Kill him."

The Iraq did not have approval of the UN.

US didn't get approval from NATO either. I remember Germany and France being in strong opposition.

The US basically gave them the finger and invaded Iraq anyway. And yet, here we are years later, with absolutely no evidence of WMDs discovered.

And of course, everybody knew that the rationale given for invading Iraq was pure bullshit, you would have to be an idiot to not see it.

At the very bottom, its my tribe versus your tribe. What makes this more disconcerting is that it is intratribal killing.

Moreover, the US has always killed foreigners. That presents no problem to our Constitutional framework and is a basic right of any state. Killing of Americans without judicial oversight, however, does pose Constitutional challanges.

Well, clearly, we invaded Iraq because it was run by a dictator executing his own citizens, so we were justified.

This happens far too often in Africa and we did nothing.

Remember Iraq was the "hey let's kill anyone for 9/11" and all the teenagers rushed to sign-up (and then got stop-lossed for years as a thank you).

We had insanely selective justification while ignoring everything else. To rewrite what we did to Iraq as anything less than horrible is a massive lie.

Saddam was US BACKED ! like Castillo , Pinochet , Palavi and countless others , armed and supported for YEARS by USA ! there is even a footage with Rumsfeld shaking hands with Saddam.

And you wonder why people hate you all over the arab world ? your only strenght is fear, you definetly lost the cultural battle there.

The war in Iraq killed far more iraqis than Saddam ever did, and i'm not even talking about the 1 millions children that died during the oil for food program.

And yes ,they still call you the "great Satan" there. Ironic isnt it ?

I was being sarcastic. It's ironic that in this case Obama is doing what we claimed Hussein did in my comment above.

> We should be protesting war in all forms, not just assassinations.

Honestly, I agree, but there were millions of people all over the world protesting the war, and it didn't change a damn thing.

I don't believe that the protests didn't change the outcome of the war. I wrote in March 2003 [1] that the Iraq War "is going to be much more closely criticized than other wars in the past", and it has been.

[1] http://www3.sympatico.ca/taylormcgreal/speakingtruth.html

Compared to previous wars, which went on for years and killed millions of people before anyone even noticed, the Iraq War has been dogged from the outset by scrutiny and criticism. As a result, abuses have been identified more promptly, denounced more broadly and discontinued more quickly.

Things are actually getting better, but our expectations are changing faster than our institutions are conforming, so it feels like things are getting worse.

You know what? Seems reasonable. An American citizenship should not be considered a writ of special treatment for a terrorist. If you're going to say that terrorists can be killed without judicial overview, which I think you have to, then you can't say that doesn't apply to those terrorists who happen to be American.

If you're going to say that terrorists can be killed without judicial overview, which I think you have to

I vehemently disagree: You don't have to think that terrorists can be killed without judicial overview. I'm also willing to bet I'm not alone, and am curious about why you think the opposite.

While this feels like a "quis custodiet ipsos custodes" situation, does the judicial overview always need to be prior the action?

In other words, consider soldiers on a battlefield. They do not need judicial approval to kill people they perceive to be enemies. However, they are not given a carte blanche to shoot anyone they wish, or use any means they wish. In cases of soldiers executing questionable judgement, there is a review after the fact.

Police officers are also given more leeway when it comes to killing people. I believe there is always some sort of review after the fact, but I don't think that investigation is the same as a court case (i.e. it may occur entirely within executive branch agencies.)

Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.

> consider soldiers on a battlefield

One difficulty comes with the definition of battlefield and war. If a battle makes it ok, what does that say about a war on terror, which appears to be perpetual?

> Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.

Another issue comes with the types of review. Whistleblowers are illegal and increasingly shut down. Declassification takes ages, and a Congressional review may never happen. When people talk about due process, they usually mean a process that will always happen, not one that is optional.

Those are only a few examples of ways that people involved might be prosecuted. Here are some more: The friends/family of an assassinated person could probably claim wrongful death and cause an investigation. Non-government organizations (e.g. the ACLU) could sue for a review.

In any case, the threat of legal repercussions exists, and is likely enough to prevent US citizens from being assassinated arbitrarily.

Agreed, but I don't think any of those are due process.

To play devil's advocate the reason would be if the terrorist could otherwise not be captured or detained without serious risk to American lives. The problem is that it's hard to trust the executive to not push the limits of what this means.

if the terrorist could otherwise not be captured or detained without serious risk to American lives.

I believe you have misinterpreted my objection. I do not object to the killing, I object to the killing without a non-executive legal authority looking over the case. Having a review process and strict bounds on the reasons for which he or she could/should be killed.

Let's say I (an American) am a self-proclaimed member of a terrorist or terrorist-affiliated organization (e.g. Al-Qaeda in the Islamic Maghreb). I produce bombmaking instructions for internet distribution, and repeatedly claim my intent to kill thousands of people. There is a request to have me killed should the opportunity arise, and I could not be otherwise captured. It is almost certain that a legal review process would come to the conclusion that I am indeed a reasonable threat, so on and so forth.

Let's say I (an American) am a self-proclaimed Prophet of the Great Gazoob, wielding a Pineapple and a Rubber Duck in mid-day traffic, and repeatedly claim my intent to kill thousands of people. There might be various grounds for legal action against me (state and municipal disturbance laws, maybe a few laws regarding making threats), but it would not include my death. A legal review process would hopefully not label me as being worthy of assassination should the opportunity arise.

Disclaimer: I realize I am dismissively using a caricature of a person of unsound mental state here. This is not meant to be an attack on such people, and is used for illustrative purposes.

Reading the paper, the justification for this authority is the existence of military conflict between the US and Al Qaeda. From the AUMF: "The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

There's a reasonable argument to be made that the AUMF in 2001 is too broad, but clearly, the intention is to declare the existence of a military conflict with Al Qaeda. The US has not, to my knowledge, declared war against Prophets of the Great Gazoob.

The USA regularly arrests, tries, convicts, and imprisons, foreign nationals who violate US law.

The unequal application of criterion for targeted assassination vs arrest-trial-conviction is what bothers me, from a constitutional standpoint.

Even disgustingly vile child molesters are afforded a trial. Why not try terrorists?

Doing so would be more in keeping with the ideals of the USA as opposed to the current "Empire Strikes Back" paradigm where the very foundations (right to trial, right to be secure in one's 'papers and effects,' innocent til proven guilty) of the USA are being sidestepped in the name of a "war on terror" which, in, and of, itself, is a form of terror.

Thus we have arrived at a point where the government regularly abrogates its mandate, and those who are against such acts may be labeled as "terrorists" whose demise is expedited by said policy.

I think one of the main reasons is that they, AQ, are 'outlaws' they operate outside the laws of places they operate from and most of their operational bases are in places which are too weak to locally deal with AQ in a more traditional method. So because they are outside the law construct (of extradition, reach of local enforcement, local complicity, etc.), they, almost by necessity require this approach -which some people question and some approve of.

It's an an answer to the question, how does one deal with an entity which does not subject itself to a set of groundrules one expects/operates in. In this case, you meet them half way (in vernacular terms, that's a good deal) for the offender (since their, AQ's, whole existence is predicated on vanquishing Kafirs).

The alternatives are you meet them in their terms adopting their groundrules for dealing with you (this is a strong position to work from), another is you deal with them as you deal with other entities with whom you have structured relationships (this is a weak position to work from) since they would not likely reciprocate.

A tax evader, you attempt to extradite, if you have agreements, if not, you try to get them when they make a mistake (fly into a place with a treaty). But when a nation is concerned with national security, there is less pussyfooting and more serious action, where possible. (i.e if AQ were based in China, the approach would require some rethinking or at least some negotiation with the host country.)

Who is so empowered to declare that the Prophets of the Great Gazoob are not affiliated with Al Qaeda and are thus beyond the AUMF's purview?

(The answer would be "the judicial branch", but funny how they're cut out of the equation.)

This sounds right. I guess I would be in favor of drone airstrikes that froze suspects in carbonite so they could be collected for questioning.

However, focusing on current technology, I think the scary part about these rules for airstrikes is:

- Suspected people can be killed without being told that they are wanted. This is made worse by the fact that the list of wanted people is not publicly available.

- Suspected people can be killed without being given the option of submitting to trial (no "stop or I'll shoot")

The above two items make airstrikes unpalatable for me. Thankfully they don't seem beyond remedy (perhaps version 2 of the drone shoots down a ball-and-chain + warrant before resorting to a missile), but in the mean time I find it very disturbing. If this was happening in America I would feel like America was over.

the list of wanted people is not publicly available.

http://www.treasury.gov/ofac/downloads/t11sdn.pdf is a good proxy.

As for your other point, I'm no expert on the laws of war, but I don't believe one is required to abstain from acting against a legitimate enemy absent a reasonable possibility of taking them prisoner. This distinction is discussed in the white paper; it's against the laws of war to attack an enemy who you have taken into your confidence (eg agreed to meet under a flag of truce, or promised safe passage as one might to a plenipotentiary), but it's quite OK to ambush an enemy who is conducting their own operations against you.

I wasn't saying that no lists of wanted persons was publicly available... just that no complete list of people a drone would kill on sight was available. Are you saying the people on this list would be killed on sight? (if so, thanks for the link) Or are you just saying that they are wanted?

As for the laws of war, I think they were created for situations where the opponents could be easily identified. (Opponents wearing a uniform for example).

Applying them to a situation where 'enemy' has a stochastic definition is a dubious thing. Of course it creates benefits, but it also creates a lot of problems. Killing people without due process, in the long run, creates an incredible amount of ill will. I think this, beyond rhetoric about justice, is the reason we have due process for criminal procedures -- the people who knew the innocent person you just killed get angry with you. Even if it was an accident. Note that this definition doesn't really effect two uniformed opponents on a battle field -- at least not in the same sense as "John was killed by a drone while driving to Texas for his vacation".

The other good argument for providing due process is that without due process you give a huge weapon to your enemy... as it becomes easier to frame someone, and as that framing becomes more deadly, it becomes easier to convert people to your cause through blackmail.

In summary: laws of war weren't handed down on a stone tablet, they codify a way of being that reduces the long term negative outcomes of war. When a new form of war is crated, you probably new new laws. The old ways of minimizing negative outcomes are probably obsolete.

You did ask for wanted. I'd imagine you'd end up on this list first.

I think you're assuming that due process and judicial process are the same thing, but I don't agree with this.

Yeah... Frozen in carbonite...

How about non-lethal chemical agents?

Sorry, that's what I meant. It was supposed to be a funny Star Wars reference :p

Because it's a military, not criminal issue. Al Qaeda is not the Mafia or the Triads; they're a paramilitary group that has declared war on the West. They warrant a military response.

Excellent! That means we're done and can wrap this whole thing up then:

"We achieved our central goal … or have come very close to achieving our central goal, which is to de-capacitate al-Qaeda, to dismantle them, to make sure that they can’t attack us again." -Barack Obama (http://www.reuters.com/article/2013/01/12/us-obama-afghanist...)

Just because Hitler killed himself doesn't mean you don't shoot back at the soldiers defending Berlin.

I think the analogy you should have used is "The war is over and the Germans have surrendered. Now let's continue to kill people who were "involved" in "activities."

The death of bin Laden does not mean that Al Qaeda is not a threat. Just because the AQ leadership has been decimated does not mean that you cease operations against them, or that its members cease to be legitimate military targets.

Edit: My response made more sense before the parent edited their comment. Their original comment simply asked me to explain how mine was appropriate in the context of this discussion.

Nazi Germany was organized and hierarchical and wore identifying uniforms (unlike AQ, which is purpose-built cell-based). When German forces were defeated, there wasn't a threat of ongoing action from factional Nazis --well, there were a few who refused to surrender and became saboteurs and the Allies did search for and destroy them.

> well, there were a few who refused to surrender and became saboteurs and the Allies did search for and destroy them.

Interesting article about Japanese troops who were not aware of the surrender, or refused to recognize it: http://en.wikipedia.org/wiki/Japanese_holdout

That's a ridiculous analogy. The war is by no means over, and no one's surrendered.

The whole idea is to make sure the war is never over. Which is why America is now in a state of permanent war. Can't go on spending a trillion a year on 'security' and 'defense' if there's no war to rally around.

Columbia has had an insurgency war going on for 60 or so years, if not more. I don't think people think "how can we prolong this conflict, this war must not stop!" It's mainly opposition (not incumbent) forces are like that, they seldom want to give in. Look at NI or Sri Lanka. Even after peace treaties, renegades continue on.

Al-Qaeda surrendered?

In this case, you are right. I made my earlier comment before reading the actual paper, and the paper makes it pretty clear that they are not talking about "terrorists" but "Senior members of Al-Qaeda and Associates."

So yes, I can see why such a response is necessary. I guess now the issue falls specifically on the wording of the issue. Terrorist can really mean anything and are we on a "slippery slope" where the President is being given power to assassinate any citizen he can label?

The wording is key. The reasoning in this paper is pretty sound. I think the bigger issue, if there is one, is that the AUMF in 2001 grants the President too much power to determine which "nations, organizations, or persons planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

That wording is a bit of a recipe for endless war (as written a dozen years later).

Who should be killed without judicial overview?

A killer on a shooting spree.

> If you're going to say that terrorists can be killed without judicial overview, which I think you have to

Whoa whoa whoa, hold up there. Explain that bit to me.

Groups like Al Qaeda are launching a military, not criminal campaign of violence against the West. It warrants a military response. Patton wasn't rounding up Nazis and delivering them to district attorneys in France; he was shooting them. That's the fundamental difference between military and criminal actions. AQ is not a criminal organization. They're a paramilitary group that has declared war on a state, and they should be treated as such.

If this is all just standard rules of engagement, then why is such a memo necessary?

These are very plainly executions.

Call them what you will. They are military attacks against military targets. We can debate the appropriateness of particular measures in given situations, like whether or not drones should be used, but I don't think there's a reasonable argument to be made that members of paramilitary organizations that are dedicated to our destruction should not be treated as military targets.

As to why the memo was necessary, I see it as a memo limiting, not expanding executive power. The memo spells out when the Executive must treat an American member of a terrorist organization as a criminal, and not a military target.

Why the secrecy, if this were really as uncontroversial and cut and dry as you assert? Why would they deny the existence of a document granting additional rights to American citizens in standard engagements?

Your reading of this memo is ludicrously generous.

I disagree. As CiC, the President has total authority over the conduct of military campaigns. This memo limits that authority and describes under what circumstances military power may be used.

...for unreasonable definitions of military power.

They're not executions just because you say so. That term has legal meaning that doesn't apply to military combatants.

AQ affiliates literally cannot be "military combatants", even were that a meaningful term; there is no "military" for them to be associated with. The state-sanctioned killing of non-military persons is definitionally execution. That we apply this to people who may or may not have committed crimes (and, let's be honest with ourselves, "may not" is no less likely given the vague targeting used by our military forces) with no oversight or due process is 'unlawful execution' from where I stand.

We will someday answer for the evil we currently perpetuate in Afghanistan. If we are moral, we will be the ones holding ourselves to task for it. I doubt that we are of sufficient fiber.

Look, the executive branch is empowered by Congress to engage in military action against Al Qaeda by the AUMF. You may not like this, but since it's been in place for >11 years now perhaps you could make your argument in the context of the existing legal framework. For example, if you think the AUMF is unconstitutional you could argue that, or if you think it is constitutional but the executive's actions are outside the scope of the AUMF you could tell us why. I don't see how we can discuss this meaningfully without agreeing on some terms of reference.

In any reasonable situation what these people are allegedly doing would be grounds for trying them for treason, for which they could be executed. We are skipping the "pesky" catching/trial step because we find it inconvenient.

Now yeah, everyone is saying that expecting people to arrest others in a military engagement is crazy... but what is happening here can hardly be called military engagements. These killings are not taking place in the heat of a firefight, they are meticulously planned with the sole objective of killing the target.

Any reasonable man outside a court of law would call these executions. Execution by missile, without a trial.

These killings are not taking place in the heat of a firefight, they are meticulously planned with the sole objective of killing the target.

You could make the same argument about the use of snipers or bombers. As far back as the siege of Troy, there were arguments about whether the use of archery qualified as a legitimate form of combat since arrows could be shot from beyond the range of normal hand-to-hand combat.

There is no legal requirement that military engagement be limited to pitched battle or that combatants must meet in the field on equal terms. An interesting historical example (that I may have suggested you read up on before) is the ambush on Admiral Yamamamoto during WW2.

I defer to Jameel Jaffer's concerns about target location: http://www.aclu.org/blog/national-security/justice-departmen...

I am well aware of Yamamoto's killing. Allow me to refer you to the killing of Herberts Cukurs.

I don't understand this comparison. Yamamoto was at the time of his death an instrumental component of one of the largest military threats the US ever faced. Cukurs was decades out of the military when he was assassinated. Yamamoto was killed to degrade the combat effectiveness of a combatant army. Cukurs was killed purely for revenge.

Absolutely. I think these extrajudicial killings we are talking about now lay somewhere rather in the middle.

I agree, in that I think the available evidence suggests that some of the killings have been reasonable in the context of military operations, and others have been haphazard, negligent, or poorly justified.

Of course, that's the way of all wars. Drone killings are alien to us and thus easy to fret about, but far worse things happen when you put troops on the ground. Scared teenagers have done far worse in good faith efforts to take down well-conceived targets than drones are likely ever to do.

You'd hope that people would take away the right lesson from this; not "US citizenship is a sacred talisman of safety in war zones", but that we shouldn't be declaring idiotic wars against enemies that almost by definition can't be "defeated".

I don't think we really disagree on anything in this case then. I have no particular issue if Americans happen to be killed by Americans in normal circumstances.

Killings outside of what could reasonably be considered a warzone continues to concerns me, American or otherwise (though American particularly, if I am honest).

I don't share those, and think he is ducking the issue by saying the memo improperly seeks justification for its geographical reach in Hamdan. Rather, it acknowledges the lack of clear guidance and develops a a legal theory based upon the history of hostilities launched by one party to a conflict from inside a neutral third country (Vietnam and Cambodia) and the executive intent of the signatories to the Geneva Conventions (as suggested by Corn & Jensen).

I'd like you to consider the possibility that some questions are not easily justiciable (that is, decidable by the judiciary), and this is why the Supreme Court sometimes declines to take up an issue on the grounds that it is a 'political question'; one for which there are no clear legal rules and the matter must ultimately be left to the approval of the citizenry via the electoral process.

I am well aware of Yamamoto's killing. Allow me to refer you to the killing of Herberts Cukurs.

But this exemplifies what's wrong with your argument. Cukurs was killed because of something he was judged to have don ein the past. There was no question of his attempting to continue his Holocaust-era activities. Al-Awlaki, by contrast, was actively fomenting war against the US by his own public statements.

Does a military sniper execute his targets?

Is this military sniper on a battlefield?

If not, then I would consider it an execution.

What's a "battlefield"? World War 2 was fought all across the cities and suburbs of Europe. It's been centuries since people flew banners and lined up to whack each other in the heads with halberds in an orderly fashion.

The sniper is at his post near a military base. He sees a heavily loaded van approaching at high speed. The driver is ignoring the warning signs and shouts from the guards. The sniper shoots the diver. The truck is found to be loaded with explosives.

Did the sniper execute his target, or fire the first and only shot of a battle?

Wars are no longer fought only on battlefields.

It's not military standard rules of engagement, but it doesn't seem like standard law enforcement SOP either.

I'm not saying that I agree with the reasoning in this particular document, just that I think it's reasonable to believe that modern terrorist groups are a new flavor of threat and may require new legal frameworks to address them.

Do you trust our current and future U.S. government to always define "terrorist" the way you do right now? What happens when some kid who's hacking into websites in ten years suddenly gets labeled as a "terrorist"?

Not at all, but this white paper has nothing to do with the definition of "terrorist". It is concerned solely with senior Al Qaeda leadership.

What constitutes "senior Al Qaeda leadership" in a decentralized and cell-oriented phenomenon?

I've always been a fan of your username, but this post really put it over the top. And your point is 100% correct: the whole claim about 'leadership' is based on a model that doesn't even apply to these organizations, which makes me really question the competence of those making such proclamations, and even _more_ uneasy with their judgements about extrajudicial killings.

What would you consider "senior AQ leadership"? Do you believe there isn't any?

Cells don't just "form" from thin air. There are people with ideas, people who coordinate, the hands behind the organization, the financiers. Kind of like a crime syndicate. There are foot soldiers, capos, consiglieri and bosses and boss of bosses.

I would say, you watch the organization, follow the trails of financing, ideas, commands, etc. While it's cell-based, like biological cells, they are conected to a larger organism, albeit they can act independently when necessary.

Executive decision. It's far from a perfect system.

You mean "Executive decision with no judicial oversight".

Would you agree that by the same logic someone could identify the senior leadership of bit torrent?

Only in a tinhatty sort of way. Yes, theoretically, any group the Executive doesn't like could be treated like this. Until you fly a couple of jetliners into skyscrapers killing thousands, however, I think you're safe.

In what essential way are Al Qaeda "military" rather than "criminal"? They aren't taking to a battlefield or wearing uniforms.

We certainly aren't treating them as Prisoners of War when they are captured.

Draw me a bright line. Or, hell, even a dim, wiggly one.

I believe the answer is "'Members' of Al Queda are whatever it is that allows us to treat them however we wish.".

And who is in charge of labeling people terrorists? What if I decided to label you a terrorist tomorrow because you developed violent video games that poisoned the mind of children? What further steps would I need to take to be able to murder you and get away with it?

Well, first we'd need to find a picture of you that made you look like you were from a culture that is currently hated/feared, then publicise that picture to show you are a member of that group. Find a couple of links to people who have links to Al-Qaeda (shouldn't be too hard, you are on the internet after all, and you won't be around to defend yourself) and publicise them (suitably redacted to make them seem ominous). We'd then wait until you were in a secluded, foreign-sounding location and drop a missile on your head, to prevent terrorism.

Did I miss anything?

Congratulations, you're a Facist.

Downvote the parent if you must, but it is not untrue. A defining characteristic of fascism is unchecked executive power, and this is the case here.

There are no checks and balances here. The US intelligence apparatus has justified killing its own citizens without judicial or legislative oversight, at the sole discretion of the executive.

As uncomfortable as it may be to point out, that is fascism.

No, actually, that's not what facism means. Facism is a specific type of authoritative power structure almost always involving mass indoctrination of citizens into forming a unified movement via heavy nationalistic propaganda themed around a "vitalization" or "rebirth" of the nation state.

In other words, authoritative governments indiscriminately killing people, while not good, is not a defining measure of fascism. In more broad terms, "things that I think are evil" are not either.

All fascisms involve the identification and elimination of undesireables. Power is the method by which that is accomplished, and nationalism is only a symptom of this force in operation.

you have it backwards. if governments that identify and eliminate undesirables are fascist then pretty much every government in history has been fascist.

ie, all men are mortal, but not all mortals are men.

words have meaning.

I don't think of fascism as a state of being so much as a tendency, so yeah, choosing to recognize someone as undesirable is a fascistic tendency designed to disallow someone their freedom of being and/or thought. Throughout history different fascistic societies have sought to eliminate people of all schools of thought, free-thinkers and status-quo'ers alike, which while maybe too abstract an explanation in this context, helps illustrate how designating a terrorist or a "leader of Al Qaeda" is neither a self-evident logic nor an unquestionable act. History tells us that the more important a particular undesirable is to the acts of a government, it reveals actual weaknesses in the society that invests that government with its power.

"I can call it fascism if I want to and you can't stop me, neener, neener."

Well, in a conventional, declared war (e.g. World War II), enemy soldiers can be killed without judicial oversight.

So how do you translate that to fighting Al Qaeda and other terrorist groups? Not so easy. But the obvious way is to treat them as enemy soldiers in a conventional war.

It's in my opinion not as obvious as you make it sound -

in a drone strike you kill a supposed enemy combatant who at the time of the strike may not be armed, or may not be involved in an armed conflict. For example, the alleged terrorist is driving in an SUV. In this case, the 1949 Geneva conventions might call this a crime (the US denies this AFAIK):

>Modern laws of war regarding conduct during war (jus in bello), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other distinctive signs visible at a distance, and the carrying of weapons openly. [1]

Of course, terrorists don't listen to these rules either, by not wearing any uniform, they don't have any.

[1] https://en.wikipedia.org/wiki/Laws_of_war

Yeah, I mean, I don't think the "obvious" way (my own word) is the right way to do it. That's not actually the way the U.S. does it, either, as you say. So I probably shouldn't have said that.

Was this any less true before the advent of drones?

That's a completely indefensible statement. My simple statement that paramilitary adversaries should be combatted militarily in no way makes me a fascist.

Killing "terrorists" (whatever that word means) without judicial oversight is counter to the idea of due process.

It's something a lot of people rightfully disagree with.

No it isn't. You may not like the AUMF [1] but it defines who terrorists are (albeit broadly) and empowers the executive to use military force against them. The constitution promises due process of law, not that said law will be administered by the judicial branch.

1. Authorization for Use of Military Force, SJ Resolution 23 http://news.findlaw.com/hdocs/docs/terrorism/sjres23.enr.htm...

The due process of law the Constitution attempted to enshrine was very specifically meant to ensure that justice is carried out by the judicial system. Great lengths were taken in fact to secure that outcome.

The framers were extraordinarily clear on this. You're exactly wrong.

Extraordinarily clear? Whole books have been written about the meaning of the two overlapping due process clauses in the Constitution. The Supreme Court has been defined by centuries-long conflicts between two wildly different schools of thought (subtantitive and procedural due process). Supreme Court justices have had to construct arguments over which amendments to the Constitution even incorporate the Bill of Rights over the states.

Every time you think that some power must obviously be invested in the judicial system, remember to run the sanity check: nobody elects the judicial system. They're accountable to nobody. The framers did not want our country governed by philosopher kings.

I don't think this leg of the conversation has much to do with the issue at hand --- if there's one thing the Constitution is extraordinarily clear about, it's that the Executive commands the military, and DOJ's reasoning regarding drone strikes depends on their military nature --- but I'm in the middle of _Democracy and Distrust_ right now, and maybe it gets clearer later in the book but the impression I get is that "Due Process" is anything but clear and simple.

Looks like a good book. An Amazon review mentions that Ely reasons one-man-one-vote as the fundamental guiding principal for apportionment. Have you read that part yet? I guess the Senate gets an exemption...

This is rather begging the question by defining the issue as justiciable from the outset, in similar fashion to the religious argument that 'the existence of creation implies a creator, therefore God exists.'

It's my view that the pursuit of military objectives is very much the province of the executive, and that the elimination of Anwar Al-Awlaki was an entirely legitimate military objective since Al-Awlaki was (at the least) involved in rallying supporters to his cause and exhorting them to kill Americans, and arguably directly involved in the planning and authorization of such operations, exactly the sort of threats the Executive branch is responsible for addressing.

Well, no. Americans have due process rights under the US Constitution. Foreigners, generally, don't.

The question here is: what process is due when an American leaves the country and takes up arms against the US. It's reasonable to say that they aren't entitled to full judicial process, but they are clearly entitled to something.

Amendment V specifies "no person", neither "no national", nor "no resident", nor "no citizen". Amendment XIV, extending this to limiting the individual states does restrict it to "citizens", but this is a case of the Federal government acting.

Also, the Privileges and Immunities clause has been interpreted as referencing citizens to define the class of rights being engaged by the amendment (those normally enjoyed by citizens), and not as a definition of the class of people to whom those rights are accorded.

Of course, Privileges and Immunities is also a weird zombie clause.

It doesn't mean "no person anywhere." The Constitution is a law. It implicitly limits itself to people under its jurisdiction. Historically, that has been defined territorially and in terms of nationality. You can even argue that US citizens have no Constitutional rights off US soil though it was decided otherwise by the Supreme Court.

You've refuted yourself; tens of millions of non citizens are subject to its jurisdiction. Clearly it's not limited to citizens, nor does it say it is. People subject to its jurisdiction seems the more apt interpretation.

That's why I said Americans instead of citizens. In the extraterritorial context, citizens are the interesting category. Citizenship follows you around when you're in Yemen for decades. US residency doesn't.

>they are clearly entitled to something.

I don't think that's clearly the case, although it certainly could be argued to be so.

Disclaimer: I'm not American.

I believe that if you're willing to let your government kill terrorists without a trial, there should not be exemptions based on where you were born. Americans should not be exempted.

Whether the government should or should not target these people is the real question.

If this is a war, then sure. But the enemy (terrorists) should be considered enemy combatants within an army - a militia. Then all the rules of warfare should apply.

> If you're going to say that terrorists can be killed without judicial overview, which I think you have to, then you can't say that doesn't apply to those terrorists who happen to be American.

What about (people labelled as) terrorists who happen to be American residents?

The title of this is really, really misleading.

The first paragraph:

This white paper sets forth a legal framework for the...use [of] lethal force in a foreign country outside the area of active hostilities against an American citizen who is a senior operational leader of al-Qa'ida

Well if this justification is somehow valid for senior al-Qaida members, it would hold for senior al-Shabaab members, senior Zetas in Mexico, senior Capone members, senior Bloods and Crips, senior LulzSec and Anon, etc.

Then you apply the logic which hinges on it being a foreign country and parallel that to a condition in our own country and it gets ugly. After reading this whole memo, I actually see very little about geography or why this wouldn't be legal in the US. The bottom of page 4 and top of 5 seem to actually justify executions within our borders.

The difference is spelled out very clearly in the document. The United States is in a state of congressionally approved armed conflict with Al Quaida. Where they not in a state of armed conflict, then there would be no legal basis.

The consequences of going to war, is that the executive (President, acting as Command in Chief of the armed forces) is authorized to kill the enemy without judicial review.

> Assassinating American Citizens

> lethal force [..] against an American citizen

Wherein lies the difference?

> who is a senior operational leader of al-Qa'ida

Reading comprehension, mostly.

Sometimes you have to kill people. One hopes that, as a nation of laws, the United States does so within reasonable constraints and at the appropriate time, and for the appropriate reasons.

See: http://www.nytimes.com/2013/02/05/us/boy-is-safe-after-alaba... for a tragic example today.

I've skimmed through the entire document - it spends a lot of time talking about things that must be tried prior to these targeted killings - including multiple references to the fourth and fifth amendments of the constitution (Unreasonable Seizures, Due Process)

There doesn't seem any reason why this document shouldn't be made public. Seems pretty much reasonable (if somewhat overly legalistic for this layperson to totally follow)

I'm not sure what's scarier here;

1. That the US willingly kills it's own citizens without trial


2. That you found a way to justify it and you're OK with it.

What a crazy, crazy place.

Did you read through the document - I took 45 minutes to parse it before commenting on it.

I'm pretty much a left-liberal-pro-individual rights person. 100% opposed to the death penalty for criminals that have been locked up. But, I still recognize that the United States is a nation at war, and has been so for the better part of 10 years. People die in wars. When Americans go join, and, indeed, lead enemy forces, and plan attacks on the United States - this document captures how and when they may be legally targeted.

Imagine a bank robber killing 5 people and holding 20 people hostage. As soon as he takes one step outside the police will shoot him on sight, WITHOUT any trial. It's the same thing basically.

It's not the same thing

They're targeting these guys for assasination for things they might do, or are suspected of doing in the past. It's not like they catch them in the actual act of committing terrorism.

So to satisfy your Strawman it would be the equivalent of finding a bank robber months after the robbery inside his house, and the police blowing it up with his family inside to get him. I don't think that would fly in any reasonable society

Edit: Interestingly here is a RL example that happened today, terrorists caught robbing banks, beaten by the cops then mugshots digitally altered so nobody would see the wounds http://www.guardian.co.uk/world/2013/feb/04/greece-police-lo...

That's not really the same thing. A better analogy is this: the police have credible intelligence that this person is connected to a ring of known bank robbers, and that ring is planning a robbery, so therefore they have the authority to kill him.

Well, swap out "robbery" for "mass murder, usually using bombs in crowded civilian areas".

that sounds like thought-crime

The police will shoot him on sight only within some very well defined circumstances such as:

  - Poses an immediate threat to the public or the officer
They shouldn't immediately shoot him if

  - there is no weapon in sight, or
  - the weapon is pointing at the ground etc.
In any civilised society there is no room for summary execution.

Obviously preserving human life trumps any other concerns, this includes the "bad guy's" life.

The policemen would be guilty of murder in any reasonable society.

If someone is threatening the lives of others as hostages, what degree of force is justified to stop them from taking those lives?

Not lethal. Lethal force is not necessary in any circumstance whatsoever.

I hope not, if the family of any criminal out there could get policemen jailed for doing their job, there soon won't be much policemen left.

A policeman's job is to enforce the law, not kill criminals. In this case that means arresting the bank robber so he can be brought to trial. If the bank robber comes out of the bank "guns blazing" then the police are certainly justified to shoot him as a matter of self-defense.

If, however, the bank robber steps out unarmed and is shot and killed, the family should have the right to bring a wrongful death suit (or something, IANAL) against the police officers in question.

It doesn't matter how many times it mentions the fourth and fifth amendments if these powers of the executive branch are checked only by the executive branch.

There's nothing actually stopping them from overriding the fourth or fifth amendment unless there is public or judicial oversight. And if you give someone power, they will eventually use it for an unintended purpose.

Yet somehow America managed to survive two centuries without the desperate need to assassinate its own people being enshrined into law.

Terrorism is not some new tactic that calls for a radical change in legal powers. These laws are nothing but an extreme power grab.

> Sometimes you have to kill people.

This is not true.

> > Sometimes you have to kill people.

> This is not true.

The position that one must never kill someone else is certainly a defensible position, defended over the centuries by many honorable people. I respect that position. But, even though I have largely pacifist ancestors, I think as a father of a daughter that if the Taliban tried to set up their women-oppressing rule anywhere my daughter might have occasion to live or work, I would oppose them by all means necessary, up to and including lethal force. That's not because forcing women to be covered from head to toe when they go out of their homes is itself a capital crime, but because some Taliban fellow-travelers also commit capital crimes like murdering women who try to teach mothers how to vaccinate their children to keep the children from dying from infectious diseases. I would not be ashamed to kill a baby-killer or woman-murderer.

AFTER EDIT: I will now take time to give a careful lawyer's read to the document (white paper) linked to from the blog post submitted here.


> I would not be ashamed to kill a baby-killer or woman-murderer.

So your ends justify their means.

This is what the George W. Bush Administration believed and the masses of the majority of the Internet were in an uproar over it. Why has it changed now?

We got used to it.

Give it a few more generations and we will completely forgot what it was like pre-9/11. In 7 year more years ask any 18 year old what their world view is and I imagine it would be completely detached from the reality we grew up with. So it is.

Obama owes Bush Admin a great debt for the expanded executive powers over the years. A lot of Obama supporters back in 2008 had an erroneous belief that once in office Obama would return the balance of power, instead he opted to protect it as well as not pursue prosecution of acts of torture from the previous administration. Maybe that's just the kind of big boy pants decisions that need to be made for the sake "national security" or maybe it's just the leeway required to operate in a post-9/11 world.

Who knows, I'm just a computer nerd, not a poliwonk.

And if we're going to be fantasy quarterbacking maybe at the end of 2016 Obama will leave the office emancipating every inch that were taken in the past two decades, decriminalize, and fully end the global war on terror. That's some Abraham Lincoln level stuff right there.

How do you believe the police should have handled the Sandy Hook gunman?

Imminent violent threat != association with a group "'recently' involved in 'activities' posing a threat of violence."

The strength of your principles is only tested at the extremes. I hate Westboro Baptist Church, but I'll support their right to say what they want, because that's how much I believe in free speech. And even terrorists deserve the right to a speedy and public trial if they're American. It's part of our constitution, something we're supposed to stand for as a country. It even makes me sad the way we handled the whole Osama Bin Laden assassination. How much of a bigger statement would it have made to the world if we had pulled him out and made him sit trial for his crimes? What happened to our principles that we used to care so much about?

W/re WBC, I think while they have a right to hold views, express them, share them, I do not think, and others have agreed[1], that they have the right to disrupt other people's proceedings (funerals) as part of their right to free expression.

[1] http://www.kansascity.com/2012/10/16/3870092/appeals-court-d...

freespeech is not about going to someone's funeral and spiting on his grave yelling he is going to HELL.

The following questions come to mind.

1. What is "an informed, high-level official of the US government"; is it the President only, or does it include Cabinet Members? Is it restricted to political appointees, or does it extend into civil service roles as well?

2. "imminent threat of violent attack against the United States" sounds like a definition of a legal standard, what are the elements of such a standard and would the mere possession of weaponry sufficient to carry out such an attack meet it?

3. The phrase "senior operational leader of al-Qa'ida or an associated force" is used repeatedly in the document; what qualities put one in the category of an "associated force"? Would it be plausible to say that Wikileaks could be described as an associated force with al Qa'ida? Could the Syrian government be so described? What are the strictures here?

4. Given that several known killings of American citizens seem on the face of it to violate the guidelines of this document; most notably the death of Abdulrahman al-Aulaqi http://en.wikipedia.org/wiki/Abdulrahman_al-Aulaqi it would behoove the government to explain the apparent contradiction. Or if the definition of "operational leader of al-Qa'ida" has been watered down to "military aged male"; to state that publicly.

There is no question that dealing with non-state paramilitary actors undermines the nation state paradigm that the existing law of war assumes and that there are a number of edge cases where it is hard to determine whether a given individual should be treated as a combatant or as a criminal; however we as a nation and as a society cannot afford to let our leaders become mere killers without restraint; no matter how heinous the opposition.

The "military aged males" killed by drones aren't US citizens. This memo does not suggest that the US can kill any military aged male regardless of nationality.

And no, it would not be plausible to say that Wikileaks could be described as "associated with al Qaeda". You could have used the same reasoning in the 1930s and 1940s to suggest that the US could have killed Charles Coughlin; after all, he was on the radio advocating for Mussolini and Hitler!

In the particular case I referenced, he was, Abdulrahman al-Alauqi was born in Denver and was aged 16 when he was killed.

Coughlin could have faced the death penalty for sedition; but he was silenced by his bishop before that was necessary. And the logic in this document is perniciously close to that used to incarcerate thousands of US citizens of Japanese descent after Pearl Harbor.

This is why we should not vest the executive with untrammeled ability to kill on their own authority, but should restrain them to a procedure that asks them to justify the exigency to a judge at the very least.

It seems doubtful that wiki leaks would qualify, Assange is still breathing. Also, Assad is practically begging to be assassinated( not saying it should be the US that does it), I don't know why anyone would be sympathetic to someone like him. Still, he doesn't really seemed to be linked to terrorism, and he's not really a threat to anyone outside of Syria, so I doubt he'd qualify either.

The indictment against Bradley Manning states that he is being charged with knowingly giving information to the enemy. Since he gave the cables to Wikileaks, is Wikileaks "the enemy"?

It's a valid question.

> It's a valid question.

Not really. Releasing secrets to the media counts as giving it to the enemy. Wikileaks was just a middleman, sort of like a hit man or a bag-man -- one can still hold the originator responsible.

I'm not taking a position on this case, only the logic you're using.

When Geraldo Rivera was in Iraq, attached to a combat unit, he went on the air and revealed his unit's future plans and location in far too specific terms. He was immediately expelled from the country on the same grounds -- giving information to the enemy -- even though he just broadcast the information, without any specific recipient in mind. Just like Manning.


It's worth noting that Geraldo Rivera isn't in Gitmo, either.

Yes -- but that outcome was based on politics, not law.

>It's a valid question.

Even if it is, it's not the one you originally posed. Above, you inquired whether or not Wikileaks is considered to be an affiliate of Al Qaeda.

No. I was asking what the standards were for being declared an allied force of al-Qa'ida and whether Wikileaks the organization would be considered one by this administration.

These are excellent questions, all of which need to be clarified sooner or later. While I'm still digesting this white paper and need to do a much more reading of the sources it quotes as well as study of the underlying issues, here's my gut feeling about what those answers will turn out to be (any or all of which might be completely wrong):-

1. I'd guess it included political appointees, such as the director of the CIA or head of the NSA.

2. This is the crucial question. The memo appears to think it requires means and motive but that the US is not obligated to wait for an opportunity before acting. Suppose, for example, that AQ had a plan to repeat 9-11 (to save my defining some new scenario). If you knew that such an operation was planned and that an individual agent of AQ had the authority to order it to commence, it would be legitimate to attack that individual even if you didn't know the precise timing and vectors of the attack. To me this is analogous to attacking an opposing general who's responsible for directing military operations against you even if he has never personally shot at you and his fighting consists of directing others' activity.

3. I'd say an 'associated force' was one that had explicitly declared itself to be affiliated with Al Qaeda or to have a common enemy (eg the US) with that organization. So while Hamas, say, is considered a terrorist organization by the US, I don't think it would be associated with AQ since its activities are confined to the Israeli/Palestinian conflict rather than being part of a global struggle. I think the word 'force' is important too, so that we're responding to the threat of actual injury rather than targeting people who just make nasty remarks about us.

4. I think this is a bit of a red herring, since there's no evidence that we were targeting that individual [the 16-yo son of Anwar Al-aulaqi/Awlaki). Unofficially, the target of that strike was one Ibrahim al-Banna (who I personally know nothing about but who I'm going to assume was a legitimate target) and Abdulrahman had the ill fortune to be in his company at the time he was attacked. While I think it's important to minimize 'collateral damage' and civilian casualties (and think drone warfare actually represents an advance in this regard), I don't feel that the incidental possibility (however improbable or unpredictable) of injuring a US citizen should serve as an effective shield for Al Qaeda's executive, such that senior AQ people effectively get issued with personal hostages to prevent them from being targeted. As Justice Jackson observed, 'the Constitution is not a suicide pact.'

I wholly agree that we can't abdicate all responsibility to the executive (ethically comforting though this might be), but nor should we abandon our legitimate interest in self-preservation to procedural paralysis. Thus, for example, the constitution contemplates not only declarations of war, but the issuance of letters of marque and reprisal without limitation in scope.

This memo spends the entire time talking about the 'evil' al-qa'ida and how even if a US citizen joins them then legally they should get to kill them. It goes into deep detail about this scenario for a number of pages.

But it skips over, in 5 lines at the very beginning, that it also applies to anyone they arbitrarily say are associated with al-qa'ida. No details about that.

The important issue isn't the legal justification of some mythical US al-qa'ida as this document tries to stress. It's about the fact that they decide who is an 'associated group' they can also kill and that decision is secret and arbitrary.

I am just wondering but can people in Occupy Wall Street be targeted for assassination just as well as as a 'potential terrorist' in a foreign nation who happens to be a US citizen? If so we may be seeing a new form of US Government.

BTW I thought President Jimmy Carter made assassinations illegal when he was President? Has that law been lifted?

Read the paper. The issue is not "potential terrorist" but rather swearing allegiance to Al Qaida, between whom and the United States there exists a present state of armed conflict. The US is not in a state of armed conflict with OWS.

Also note that the application here is with regard to US citizens outside the US - picture someone training terrorists in a cave in Afghanistan, not someone camping on the streets of New York.

The paper starts off dealing specifically with high-level Al-Qa'ida operatives. However around page 4 or 5 the language changes to "and associated forces". That definition is too broad to be meaningful, which is a bit creepy.

Reading the original 2001 AUMF explains where this language comes from.


It doesn't explain anything. In fact it is even broader than this whitepaper:

>the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons

Hamlily v. Obama (2009) crystallizes the legal interpretation of the phrase a bit. Some key points:

>The key inquiry, then, is not necessarily whether one self-identifies as a member of the organization (although this could be relevant in some cases), but whether the individual functions or participates within or under the command structure of the organization

>The Court also concludes that the authority claimed by the government to detain those who were "part of ... Taliban or al Qaida forces" is consistent with the law of war

>the government has the authority to detain members of "associated forces" as long as those forces would be considered co-belligerents under the law of war

But note that Hamlily applies to detention and not execution. And in this execution whitepaper, it clearly states that the definition of associated forces "includes a group that would qualify as a co-belligerent under the laws of war". The phrase includes leaves a lot of room for the term "associated forces" to apply to other things.

But anyway, IANAL.

Link to Hamlily v. Obama (PDF): http://scholar.google.ca/scholar_case?case=15512898181635760...

Link to AUMF (PDF): http://www.lawfareblog.com/wp-content/uploads/2012/10/Author...

That probably depends on whether the individual is doing something like, say, fighting for anti-US groups in a war zone. I would have thought this was not the tenor of OWS activities, am I wrong?

Unfortunate automatic URL generation.

Is it really that fair to describe this as "Obama's rules"? They were prepared by the Office of Legal Counsel, after all.

In any case, good to see this out there- it appears that the New York Times brought a court case to release these papers but were unsuccessful.

They were written by officials of the Obama Administration for policies established and enacted by the Obama Administration and used to evaluate decisions the Obama Administration is making.

It seems quite logical to call them "Obama's" whether they are rules or justifications..

Good thing all that energy has been put into preserving the 2nd Amendment.

The full text of the purported Justice Department white paper mentioned in the submitted blog post:


Without reading the memo (only the linked article), wouldn't top Al Qa'ida operatives be classified as traitors and enemies of the state? (Maybe that's the legal angle expressed in the memo.) Within the country's borders, the government kills its citizens all of the time when the judgement is made that the suspect represents and immediate threat to the safety and well-being of others (see: hostage situations and police shootouts). Otherwise, the state's decision to end someone's life is a long and arduous process filled with courts and laws and appeals (and rightly so!).

Let's turn this around. Suppose that an American citizen believes they're on the list, and the president is plotting to kill them. In what circumstances should it be legal for them to assassinate the president?

The president is supposed to be just another citizen: one who's very certainly plotting to kill Americans. It's curious how few people apply his reasoning to his own case. Do people believe in some kind of divine right of presidents?

Just curious...do people usually title their white papers with the words "White Paper"?

Historically, a White Paper is an informal position paper, whereas a Green Paper is a request for comment.

Every white paper I've ever seen has the words white paper in the title.. but I don't think its expected, just a convention some organisations use

Nice to read a treatise on how the Fourth Amendment doesn't prohibit executing citizens without trial. Neither does the First Amendment. The Fourth is about "searches and seizures". That it applies to taking possession of someone's life so as to extinguish it is a pretty twisted premise.

If the war is over, then assassination would seem to be possible breach of the Geneva convention.

If the war isn't over, then when will it be over? And is it even legitimate? The U.S. declared war on the concept "Terrorism" during Bush Jr's presidency, not on specific terrorists or al-Qa'ida. The U.S. also declared a war on "drugs" during the Reagan years. Though I'm in support of both "wars" because I'm in favor of the well-being and defense of the U.S. people, I don't think Congress or the president should have a right to declare war on something that cannot end, i.e. cannot terminate via treaty, surrender/capitulation, complete destruction, or victory.

I am a little concerned that we are declaring that it is ok to kill our own citizens without due trial, although I understand there are conditions.

well the point you are missing is , it takes place outside a war context. AlQaida is not the army of afghanistan , in fact most of its members are saudis , egyptians or from yemen. So the Geneva convention "doesnt apply" , that's the why of the enemy combattant status and all that illegal crap made legal.

These are not "rules", these are justifications should the political fallout be of the atomic type. Rules is a horrible euphemism for this absurdity, it implies that there is someone to enforce these rules, which is what is so conspicuously absent from the picture here.

Best. Permalink. Ever.

This isn't the outrage. The AUMF, which fairly elected US legislators enacted, and this white paper simply attempts to interpret, is. What's it been, 11 years now? We've always been at war with Oceania.

This power grab will only continue as governments lose their grip on the digital realm - mainly their ability to keep secrets and collect taxes. Real crypto currencies and encrypted communications will change human organization and governments will fight back with everything they have. These new laws over the past several years have been to address the above - they have nothing to do with 'terrorism' - cyber or otherwise. Government's only effective role is to maintain its power. Everything thing else is secondary.

Can someone explain to me how citizenship comes into play for any of these things? I was always under the impression that non-citizens also had basic rights.

When you consider that humans have been on the earth some 150,000 - 200,000 years it's interesting that only in the last heartbeat of humanity's existence (4,000 or so) did we decide en masse to grant a monopoly on the use of deadly force to someone else, namely bureaucrats.

I had to giggle when I took a look at the URL, "someone-just-leaked-obamas-rules-for-ass." Which made me wonder if this, rather lengthy, but clearly truncated URL was hand chosen. Either way makes you think about more intelligent filters for URL generators.

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