Comment by Crito | Hacker News Reader

Comment by Crito | Hacker News Reader

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> "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."

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")

The legal justification is that we are at war and these people have been deemed combatants in that war.

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.

If all those jews were not terrorists, what did Germany have to gain by killing them?

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 ...)

The legal justification is that we are at war and these people have been deemed combatants in that war.

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.

Please show me where the U.S. has officially declared war on these countries it continues to blow up civilians in e.g. Yemen.

> Please show me where the U.S. has officially declared war on these countries it continues to blow up civilians in e.g. Yemen.

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.

> The US declared an open-ended war

No it did not. There was no declaration of war, there was an authorization for the use of military force. Two very different things.

> 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.)

How exactly do you know that the AUMF-2001 invoked Congress' power to declare war 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."?

> How exactly do you know that the AUMF-2001 invoked Congress' power to declare war

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.

The base power needn't be a Congressional power given the section I highlighted. It could be an Article II power, such as the CinC power.

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.

> The base power needn't be a Congressional power given the section I highlighted.

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.

Alright, I stand corrected.

However, I must point out one important characteristic of these pseudo-wars the U.S. keeps having - it's always on foreign soil.

Not at all. You forgot the "War" on Some Drugs.

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