There's an very important distinction between killing someone to prevent imminent bodily harm and putting someone on a kill list and sending the drone out to get them. It's the distinctly non-imminent premeditation that makes the difference.
His citizenship is neither here not there for me. If it's acceptable to target foreign al-Qaeda leaders in overseas theaters (which I believe it is, in many cases), then it's equally acceptable to do the same to an American who chooses to take up such a position.
In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
It's frustrating that, after reading all the other comments here and at the NY Times website, it seems like at least half of the people disagreeing with this article are doing so because they didn't read that passage.
Perhaps this discussion is tainted by the submission title: "Show us the legal case for executing a United States citizen without a trial." The hostage taker hypothetical is an example that goes against that. That person would be a citizen, not in a battlefield, guaranteed the right to a trial, executed by the government, without a trial. The article does not do a good job of distinguishing that example from Awl Alaki. Meaning I think the central argument isn't all that good, and needs to be more specific / nuanced.
Firstly, there is no mention of citizenship. Secondly, the loophole covers any land force, sea force, or militia, and the service can be in any time of war (not necessarily currently engaged in battle) or any time of public danger. There is no mention of loyalty to the U.S. as enemy or ally.
Obviously, the intent of the loophole was to address the question "How can we possibly fight a war if 23 people have to hear evidence before every musket ball flies?" But thanks to poor bounds checking, the protection against arbitrary extrajudicial executions is severely weakened.
By a malicious reading of the amendment, I could argue that, by the tenets of Islam, every Muslim is a member of the militia, and that every member is called upon to wage war upon the unfaithful, heretics, and apostates. That is, they would all be "Militia, when in actual service in time of War or public danger." They don't even need to be at war against the U.S. The loophole does not specify.
It would seem that the source code for U.S. Government should be updated, and a patch released.
http://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the...
Specifically, the US Senate unanimously wrote that the US "has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen" (that being the older term for Muslims).
That nitpick aside, your statement is still true - the loophole would be to declare that, say, the tenants of the Wahhabi branch, or the Ahmadiyya branch, of Islam are not part of the true Muslim faith as meant in the Treaty of Tripoli.
The U.S. could target a South Korean soldier at a defense conference in the U.S. South Korea is still at war with North Korea, so that's a soldier, on the job, during a war. All the requirements are met. It does not matter one little bit whether the soldier is actually a danger to the U.S. or anyone associated with the U.S. It might cause a diplomatic ruckus, but the U.S. is allowed to do it by the 5th amendment.
It's a horrible, horrible loophole.
The requirement is that they be in military or militia service during a war or public crisis. Any war. Any crisis. If you are shooting Martian invaders with a slingshot, you fall into the loophole. If you are an Indonesian soldier delivering drinking water to tsunami victims in Indonesia, you fall into the loophole. Get it?
If you say that being in the militia is a requirement of Islam (and a quick search of a Koran does not find that to be true), then it was equally true when the US signed that statement; and I have no doubt that some Muslim somewhere was involved in a public crisis even at the time it was being signed in the Senate.
But change one single iota of your premise away from specific treaty terms, or clarify that the US has the ability to declare someone to not actually be a Muslim, then you're golden.
You also need to be careful to not trounce over other treaties, like the UN Charter. That's not hard, if the last 50 years of US military interventions is any indication, but it's not so easy as only using the language of the loophole.
You are completely missing the point. This doesn't have anything to do with Muslims or Islam. It has everything to do with some psychos in the U.S. government ruining the rule of law for everybody in the entire world, because it has some tiny benefit just for them in the short term.
The 5th amendment basically says that the normal rules do not apply in a war or public safety threat. Therefore, if you, as an agent of the government, wish to operate outside the rules, you just create a war or public safety threat. That's what we call a perverse incentive.
I could be wrong but I'd tend to believe it is because they are a clear threat and not because one has poor choice in friends or makes suspicious trips to unusual destinations.
If you know the rules, you can exploit the rules.
I am pretty sure that they are already operating under the assumption that, because they want to kill others, America wants to kill them. If that is indeed our legal justification for killing them, publicizing it would not modify their behaviour in any way.
This isn't about getting the list of people targeted for killing. This is about getting the legal justification for the killings at all. If the justification is as you suspect it is, then there is no value in hiding it. That they are fiercely protecting the justification itself strongly suggests that you are wrong.
But the devil is in the details. How does the US define 'clear threat', exactly, I think would be useful for an enemy to know and possibly exploitable.
And I don't think the US is hiding the overall justification which is "These are people who wish to use violence to act against the United States and its citizens to push their own political agenda. In short; terrorists."
I mean, these are not people who are running for Mayor in their particular part of the world and we don't like their policy decisions. They are doing things like running training camps where they teach others how to make IEDs.
Rest assured that anyone who could be considered a terrorist knows that, if they surface on the US's radar, they will be targeted. They take it for granted that they are targeted, because that is the safe assumption to make.
> "And I don't think the US is hiding the overall justification which is..."
I am not interested in the "PR justification", which is indeed "Turrusts!" I am interested in the legal justification. The only thing that they want us to know of that is that it is secret.
If it were nothing out of the ordinary, it would not be so secret.
(Also, normally I try to avoid doing this, but since you are being so persistent in using strong wording in your comments, I feel that I don't have any choice: These are not people running training camps or making IEDs; these are people accused of doing those things. The difference is important, because it is the reason we are having this discussion. It is particularly important because it is suspected that their legal justification extends beyond people who have actually allegedly done anything, and in fact also covers "people who have communicated with those who have allegedly done things" or "any 'military-aged' male in the family of anyone who has allegedly done things")
If these people are not terrorists, what would the US have to gain by killing them?
I am all for oversight and checks and balances. We need to be sure that we are killing actual threats. But I also understand that, as a practical consideration, it might be counterproductive to make the oversight public.
We don't have the luxury of doing full investigations and putting people on trial. It sounds nice, but it is impossible.
For the record: I think it is unfair that you charge me with "Using strong language" and in the same breath deride my position as merely parroting PR "Turrist" propaganda. Cheap shot.
The US declared an open-ended war against those people and organizations that the President determines were involved in the 9/11 attacks, and al-Qaeda is one of those organizations. While one might argue (as many have) that the an open-ended declaration of war was a bad idea, or (as others have) that "al-Qaeda", given its nature, is more of an ideological alignment than an actual organization, the power to declare war has never been Constitutionally limited to declarations with nation-states as the target of the war declared.
However, I must point out one important characteristic of these pseudo-wars the U.S. keeps having - it's always on foreign soil.
No it did not. There was no declaration of war, there was an authorization for the use of military force. Two very different things.
No, they aren't different Constitutionally at all. The AUMF is an exercise of the Constitutional power to declare war, which does not require any particular language to be used in exercising it, just as the Constitutional power to levy a tax depends only on whether the effect is a tax, not whether the Congressional action imposing the liability calls it a tax.
(It's possible that statutory provisions passed by Congress under its other powers may be conditioned on the specific language in a declaration, such that there may be different effects of something like the 9/11 or Iraq AUMF and something that explicitly uses language like "declares war", but that's a distinction caused by the exercise of other Congressional powers, not a Constitutional distinction that makes the former something other than an declaration of war from a Constitutional perspective.)
Because its the only Constitutional power of Congress which could support it.
> rather than Congress' power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."?
The necessary and proper clause isn't an independent alternative to other Constitutional powers, there still has to be a base Constitutional power to which the function is necessary and proper.
You've also overlooked the possibility that the AUMF is simply unconstitutional.
In any event, to end this sub thread, at least for my part, whether we are at war or not still doesn't answer the question because declaring war is not a carte blanche to ignore the rest of the constitution (see Hamdi v Rumsfeld). It in no way comports with war traditionally understood to assassinate personel vaguely associated with the enemy involved in the production of propaganda thousands of miles from any active battlefield. Nor is such a killing 'necessary and appropriate' in the words of the AUMF.
That doesn't change the answer. There's no other Constitutional power to which there is even a colorable argument that the AUMF is "necessary and proper" such that it would be supported independently of Congress power to declare war.
> It could be an Article II power, such as the CinC power.
It's doubtful that any such power exists -- the designation of the President as Commander-in-Chief of the military in Article II is a limitation on Congress' Article I power to regulate the military (specifically, it prevents it from dividing the roles that the founders saw as having an executive character by creating a separate C-in-C of the military, which its Article I powers would otherwise permit). But its not a power of government -- the designation of the President as CinC doesn't give the government any power that doesn't come from some other provision of the Constitution, it simply limits the manner in which other Constitutional powers may be exercised (it distributes some powers to the President to the extent that they already exist within the federal government, but for them to exist within the federal government, they must be grounded elsewhere in the Constitution.)
> In any event, to end this sub thread, at least for my part, whether we are at war or not still doesn't answer the question because declaring war is not a carte blanche to ignore the rest of the constitution
The answer was offered to the question of when did we declare war on the targets of these actions, and was not intended to say anything more about the Constitutionality -- and, even more so, appropriateness even if Constitutional -- of the actions, which is, I think, a much harder question that can't be answered without a thorough application of principles to the changing factual circumstances of technological means and realities of modern warfare.
Who exactly are we at "war" with? On what Constitutional basis was this "war" declared? Under what conditions will hostilities cease? On the enemy's side, who has the authority to sue for peace or sign surrender documents? What laws of war under the UN, Geneva Convention, and/or various treaties apply to this one?
You don't get to do anything you want, and kill anyone you want, just by declaring a "war" on an abstract noun.
Not that the question is bad, it's just that it's not rhetorical at all, you might want to try to actually answer it. And while you are at it, you might also want to read up on how most of the things that were done to jews (and some other minorities) in the third reich were also legal, at least according to german law at the time.
(edit: and mind you, they also had ways to justify those laws, it's not like they just made the "be evil law", of course it was all about protecting the home country or race or whatever, if you wait for an abuser of power to declare themselves an abuser, you'll generally wait until after all the bad stuff has happened ...)
Without disclosing the rules, it opens us to moral hazard. There is no incentive to feel accountable, and as we've learned lately, the government does not do well without accountability.
Hey, it worked for me as a kid.
https://firstlook.org/theintercept/article/2014/02/10/the-ns...
Hence, the call for the disclosure of the memos.
I'd love to be able to trust the governments ability to decide who and what is a 'clear threat', it'd make a lot of things a lot easier. But unfortunately history - including fairly recent US history - is chuck full of evidence to the contrary.
To the extent that there is a difference, I'm much more concerned about the former, but worry that the government may (naturally) be more concerned about the latter.
Please tell me the US government had the foresight to avoid choosing---as the name of a core algorithm employed by its covert services---a name shared by the fictional criminal organization for world domination in the Marvel Comics universe, which is itself opposed by that fiction's analog to America's covert services.
Someone in the chain of command is either deeply ignorant of Marvel Comics (completely understandable) or deeply, deeply cynical about the state of the world (completely concerning).
Meta-data.
And no, that is not a snarky joke. Reference: recent ex-NSA's (chief?) quoted revelation.
"Oh, we're not monitoring your calls, that would be bad! Just simple meta-data, nothing to worry about at all..."
If there's a hostage taker pointing a gun at someone's face, I can see what we're trying to do: step in at the last minute and prevent someone who is already visibly committing a crime (brandishing a weapon, threat of lethal force) from killing a person. Some unarmed guy outdoors, though? From a mile away? Because a committee put him on a list? What was he about to do that we stopped?
The point is there is no oversight the president can just kill whoever he want not to mention it shouldn't be legal to begin with.
There's a reason for a trial and part of it is weeding out procedural mistakes or abuses of power.
And the government doesn't feel like it's obligated to make a public case for what they've done.
Great. A lot of new followers for my books are from Pakistan.
These guys are destroying the best parts of America because they're lazy, they're incompetent and/or they don't respect the Rule of Law. Any of these three reasons is sufficient not to allow anyone involved in these criminal acts to prosper, flourish, or succeed in any meaningful way in our country.
I see no way in which the drones sent could be reasonably explained as attempting to apprehend or arrest the subject.
Is there any proof or evidence? It seems the lack of evidence made public is why people are upset.