Someone Just Leaked Obama's Rules for Assassinating American Citizens
reason.com
reason.com
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.
There is no law here. Only an arbitrary, internal memo.
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.
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).
"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."
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?
Also, yes, of course they knew.
http://www.thisamericanlife.org/radio-archives/episode/384/f...
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.
Samir Kahn was a propagandist/journalist, Anwar al-Awlaki was a YouTube troll.
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.
Example
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.*In a "guns and butter" sort of way
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 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.
A chain is only as strong as its weakest link...
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.
“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.)
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.
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.)
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.
No they don’t. How did that crazy idea ever cross your mind?!
To me, what you're saying isn't different from saying "no, it's not feudalism, because there's a monarch".
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.
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.
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.
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.
Dragging welfare into this doesn’t even begin to make sense. You do it purely for ideological reasons.
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.
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.
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.
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.
"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)
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.
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.
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.
> 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.
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.
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 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.
Honestly, I agree, but there were millions of people all over the world protesting the war, and it didn't change a damn thing.
[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.
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.
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 ?
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.
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.
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.
ie, all men are mortal, but not all mortals are men.
words have meaning.
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.
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.
Whoa whoa whoa, hold up there. Explain that bit to me.
These are very plainly executions.
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.
Your reading of this memo is ludicrously generous.
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.
If not, then I would consider it an execution.
Did the sniper execute his target, or fire the first and only shot of a battle?
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 am well aware of Yamamoto's killing. Allow me to refer you to the killing of Herberts Cukurs.
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".
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'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.
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.
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.
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.
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.
Did I miss anything?
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.
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.
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 answer would be "the judicial branch", but funny how they're cut out of the equation.)
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.
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.)
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.
How about non-lethal chemical agents?
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.
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.
I think you're assuming that due process and judicial process are the same thing, but I don't agree with this.
"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...)
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.
Interesting article about Japanese troops who were not aware of the surrender, or refused to recognize it: http://en.wikipedia.org/wiki/Japanese_holdout
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?
That wording is a bit of a recipe for endless war (as written a dozen years later).
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.
In any case, the threat of legal repercussions exists, and is likely enough to prevent US citizens from being assassinated arbitrarily.
It's something a lot of people rightfully disagree with.
1. Authorization for Use of Military Force, SJ Resolution 23 http://news.findlaw.com/hdocs/docs/terrorism/sjres23.enr.htm...
The framers were extraordinarily clear on this. You're exactly wrong.
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.
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.
What about (people labelled as) terrorists who happen to be American residents?
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.
Of course, Privileges and Immunities is also a weird zombie clause.
I don't think that's clearly the case, although it certainly could be argued to be so.
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.
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
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 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.
> lethal force [..] against an American citizen
Wherein lies the difference?
Reading comprehension, mostly.
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)
1. That the US willingly kills it's own citizens without trial
or
2. That you found a way to justify it and you're OK with it.
What a crazy, crazy place.
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.
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...
- Poses an immediate threat to the public or the officer
- there is no weapon in sight, or
- the weapon is pointing at the ground etc.
Obviously preserving human life trumps any other concerns, this includes the "bad guy's" life.
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.
This is not true.
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.
> 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.
http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_W...
So your ends justify their means.
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.
Terrorism is not some new tactic that calls for a radical change in legal powers. These laws are nothing but an extreme power grab.
[1] http://www.kansascity.com/2012/10/16/3870092/appeals-court-d...
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.
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.
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.
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!
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.
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.
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.
BTW I thought President Jimmy Carter made assassinations illegal when he was President? Has that law been lifted?
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.
http://en.wikipedia.org/wiki/Authorization_for_Use_of_Milita...
>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...
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.
It seems quite logical to call them "Obama's" whether they are rules or justifications..
http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_W...
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?
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.
Thank you for not misleading readers with your title in order to get views and points.