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