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More on Holder

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Some additional thoughts on the Holder speech:

1. I’m generally in agreement with Adam/Marcy/Scott/ et al regarding the question of due process and judicial oversight in the targeting process To be sure, there could be contexts in which a situation is so critical that the executive cannot waste time seeking judicial approval or facilitating judicial oversight. However, it is not at all clear that the case of Anwar al-Awlaki fits this context . The U.S. believed that al-Awlaki resided in Yemen for a long period, and that he had acted as a senior operational leader for some time. There was ample opportunity to submit the al-Awlaki case to some form of judicial oversight, if not judicial approval; while submitting the details of the strike itself to a judge might be onerous, the facts had not changed appreciably in the weeks and months prior to the attack.

2. Holder argued that the death warrant only applies to Americans targeted overseas, but it is not 100% clear why he distinguishes between foreign and domestic jurisdictions. The distinction may rest on the feasibility question; we assume that the United States government has the ability to capture terror suspects within the United States, or at least give them a reasonable chance of surrender. Also, the only organizations currently operating armed drones are prohibited from operating in the United States. Nevertheless, some clarification as to why a drone strike against a terror suspect in a heavily fortified US compound would be improper while the same drone strike on a foreign target would be acceptable would have been helpful.

3. One of the most important questions regarding the rules that allowed the killing of al-Awlaki involve the breadth of the mandate; who else could the United States government order killed without public due process? A wide variety of Americans have engaged in behaviors that brush the edges of the the boundaries established by Holder. Paul Robeson and Jane Fonda harshly criticized the United States while abroad (the latter in a country engaged in war with the US). Iva Ikuko Toguri D’Aquino, an American citizen long suspected of being “Tokyo Rose,” was accused of engaging in Japanese propaganda efforts during World War II. In these cases, the lack of connection to specific military planning against the United States would presumably provide protection; none of the three were suspected of playing any operational role in Communist or Japanese war planning. However, given the ambiguous nature of the Holder’s metrics for evaluating “senior operational leadership,” the executive branch could conceivably have claimed justification based on undisclosed evidence of direct collaboration in attacks against the United States. In the case of Robeson at least, the lack of affiliation with an organization deemed by statute to be at war with the United States would probably provide additional protection.

The story might be different for such opponents of the government as Timothy McVeigh or John C. Breckinridge. Were capture of McVeigh deemed infeasible, and were he deemed to play a senior operational leadership role in a terrorist organization, a drone strike might just fit under Holder’s rules. Much would depend on whether the authority to order such a strike depends on Congressional authorization or is inherent to the power of the Presidency; Holder dances around this issue, although he does argue that groups not specifically affiliated with Al Qaeda (and thus not subject to the AUMF) are exempt from military commissions. Nevertheless, it is not impossible to imagine the Justice Department finding some statutory support for executive action against a suspected domestic terrorist such as McVeigh. With regards to Breckinridge, the United States obviously believed itself at war against Southern rebels, which would presumably allow the targeting of rebel leaders regardless of their status as American citizens.

4. The biggest issue, as Scott et al have suggested, is that the due process in question is neither public nor subjected to any kind of independent scrutiny. I do take the idea that Anwar al-Awlaki could have tried to surrender seriously; it’s by no means clear that he had even a vague interest in challenging the any evidence that the administration had against him. But the fact that the evidence largely remains secret is really a problem for treating this process as legitimate. It’s obviously best not to take the government at its word on the question of killing enemies of the state, even if those individuals genuinely are enemies of the state. Indeed, several other parts of the doctrine allow what amount to political judgement calls regarding the wisdom and legality of particular strikes.

5. The “imminent” issue is also very problematic. Imminent appears to mean “last clear opportunity to strike” rather than the more traditional definition of “about to happen.” There’s nothing good about this, although I can surely understand how the administration found itself in this place. For one, “last clear opportunity to strike” can be interpreted in remarkably expansive terms; how can the state be sure that someone is or isn’t going to pop his head up again? For another, the “last clear opportunity to strike” has bad implications when extended to other questions, such as whether it’s legal to strike Iran during a “zone of opportunity” under an “imminent threat” logic even if Iran is several years away from a nuclear weapon.

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  • Jim Pharo

    I see a conflation in this discussion between judicial oversight of individual cases, a la FISA, and oversight of the program itself, presumably a once-and-done sort of thing.

    I also don’t understand Mr. Holder’s repeated claims that this is something to do with the military. When did the CIA become part of the military? Isn’t CIA running the drone program?

    Inquiring minds want to know…

  • Dave

    Bullshit bullshit bullshit. The USA has declared itself in open defiance of the very concept of international law, and of the sovereignty of other nations. It is a rogue state, and all this discussion is just dancing on the head of one of the pins holding its dirty great murder-machine together.

    • david mizner

      Yeah, there’s that. We can argue over due process and other constitutional concepts, but this comes down to the U.S. doing whatever the fuck it wants to do, because it can. If any other country were doing to Americans — like say to all those pols who pose an “imminent” threat to Iran — what Americans were doing to alleged terrorists, the United States would’ve already blown the world up seven times over.

    • This makes the U.S. comparable to roughly 100% of the worlds’ other great powers.

      File this in the “international law is not made by your heart’s desires” category.

      • ckc (not kc)

        …both sides do it?

  • JohnR

    Eh, there are always plausible rationales for expanding the power of the state. That’s why the limits were so clearly drawn in the Constitution. That’s why Cheney’s decision to formally dispose of the Constitution was such a critical moment. That moment, and the chance to patch up our constitutional form of government have now pretty irrevocably passed. The Constitution now means little or nothing in practical terms; it’s merely a piece of paper after all. Like it or not, we are now no longer the United States that the ‘Founding Fathers’ had so much hope for. We’ve passed our own “Roman Republic ending” and are heading into the Imperial Decline period at breakneck speed.

    • Pathman25

      That’s a point I’ve been making as well. It didn’t go over well at the Great Orange Satan. It was like they couldn’t grasp the concept. How sad.

    • Mike McCarthy

      I, for one, welcome our new Imperial overlord. Whichever general makes it happen.

  • DocAmazing

    Were capture of McVeigh deemed infeasible, and were he deemed to play a senior operational leadership role in a terrorist organization, a drone strike might just fit under Holder’s rules.

    Even more interestingly, under B-Rob’s “sharing a tent” scenario, this might empower the DoD to gut a couple of Southern towns in the pursuit of Eric Rudolph.

    • mds

      As was reconfirmed by the brou-ha-ha over the Department of Homeland Security’s “right-wing terrorism” report, white Christian males who commit violent acts inside the United States can no longer be considered terrorists, especially if they are acting from militia-inspired opposition to the federal government. So the McVeigh / Rudolph scenario would only be interesting in light of how fast the exemption to the executive “kill anyone anywhere” policy would be stampeded through Congress.

  • Anderson

    Nevertheless, some clarification as to why a drone strike against a terror suspect in a heavily fortified US compound

    E.g., David Koresh. Just think how much fun Waco could’ve been with drones!

    (If you’re going “but Koresh wasn’t a terror suspect,” well, you’re just not trying hard enough.)

    • dave

      This. I was just going to comment about how interesting it is that the same people who were OUTRAGED about Waco, now argue for a legal regime that would have permitted the carpet-bombing of that whole compound from the get-go.

  • Slocum

    It’s open season!

    But, then again, it really always has been.

  • stevo67

    With Obama and Holder we have finally approached Star Chamber status, with the only exception being that the Chief Executive says “go, or no go”. What a weak, lame, and far too casual manner for the taking of a fellow citizen’s life.

    At least the monarchy had the balls to sign a “Writ of Execution” and give the death some measure of gravitas.

    If the Nuremberg courts were still open Obama would be indicted.

  • Alan in SF

    All these angels-on-a-pinhead arguments ignore the basic reality at work here: No President or agent of the executive branch will ever be investigated or prosecuted for going beyond, or ignoring, whatever guidelines or safeguards are supposedly in place. Look forward, not backward. You might as well be arguing over the exact timing requirements of the roughing-the-quarterback rules in New Orleans Saints’ games.

    • Ben

      Given the right judges, the right scenario, the right mood of public opinion? The President, probably not, but it seems like there’s a non-negligible possibility that some of the makers of the most egregious decisions might be investigated or prosecuted. That’s why it’s important to keep the legal arguments by which prosecution may someday happen alive and kicking. It’s not much, but it’s something.

      Plus, the Saints thing is a bad example. Gregg Williams is out of the game.

    • L2P

      No president?

      Obama will certainly be investigated for this. Bush would NEVER have been investigated. But yeah, there is no way this won’t be used as political payback.

  • Jim Lynch

    The same insular political establishment, that only 9 years ago betrayed the United States by launching the War of The Big Lies, now claims “double 0” status for itself in perpetuity.

    Even if Rick Santorum were to be elected to the presidency.

    Got to admit, I don’t like the sound of that.

  • Lara

    Did Holder say anything in his speech about the drone strike against the sixteen-year-old Abdulrahman al-Awlaki (who was also a U.S. citizen)? In all the discussions about targeted attacks, this death is the one I keep coming back to. Since the 2005 Roper v. Simmons decision, it’s been unconstitutional in the U.S. to execute people for crimes committed as minors. I think this decision was the right one, and would find it fairly appalling if the state once again claimed the right to execute a sixteen-year-old, even after a full trial and appeals process. However, the state-ordered killing of a minor citizen, without any kind of transparency or accountability, enters into the realm of dystopia. This is true regardless of whether or not the CIA was aware of Abdulrahman al-Awlaki’s identity before authorizing the strike – if the agency lacked such basic information, that alone constitutes an excellent reason to avoid the use of lethal force.

    (Obviously, the fact that Abdulrahman al-Awlaki was a U.S. citizen doesn’t create a moral distinction between his death, and the deaths of Iraqi or Afghan children killed by drone strikes. The loss of any child is a tragedy. I suppose it really only matters for selfish reasons – if my government claims the right to kill a teenage citizen without due process, it becomes harder to trust that such sweeping authority will never be used against me, or anyone that I care about.)

    • rea

      the drone strike against the sixteen-year-old Abdulrahman al-Awlaki (who was also a U.S. citizen)?

      There was no drone strike directed against him. He was riding in the same vehicle as a member of the al Qaeda leadership, in a part of Yemen controlled by al Qaeda and its allies. A classic case of “collateral damage,” in other words.

      • Lara

        I guess I don’t think it really matters whether the drone strike was “directed” at him or not, since in either case we’re left with a situation in which executive branch officials authorized a strike resulting in the death of a sixteen-year-old U.S. citizen. Saying that Abdulrahman al-Awlaki was “collateral damage” doesn’t justify his death. It only underscores the need for better procedures, to prevent such killings from taking place in the future, and to hold accountable those who gave the orders which ended a teenager’s life.

        • joe from Lowell

          If the target – a group of senior al Qaeda leaders – was a perfectly legitimate one, and this kid who had gone to meet them happened to be there during the strike, how does that show a procedural problem in selecting the target?

          • Christopher

            The death of a child is a pretty big fucking procedural problem, you utter ass.

            • joe from Lowell

              If you’re too emotional to enter into a discussion of a legal issue, then kindly don’t.

          • DocAmazing

            You really didn’t write that, did you?

            • Holden Pattern

              Well, I think it’s OK, as long as we didn’t crush the child’s testicles.

              • joe from Lowell

                And two more people unable to discuss the legal question.

                Why should anyone take anything you have to say seriously if you aren’t capable of any better than MAKING REALLY LOUD NOISES?

                • DocAmazing

                  Yes, deliberately targeting a child who is a US citizen is a legitimate military activity.

                  Congratulations, Joe! You’ve reached Republican levels of moral development.

                • Anonymous

                  “deliberately targeting”

                  assumes facts not in evidence

                • DocAmazing

                  See Lara’s comment below. If they knew he was there, it was deliberate, if not, negligent.

                • joe from Lowell

                  Yes, deliberately targeting a child

                  Not much of a reader, are you?

                  If the target – a group of senior al Qaeda leaders – was a perfectly legitimate one, and this kid who had gone to meet them happened to be there during the strike

                  If you were as able to keep your wits about you as the median twelve-year-old girl, you wouldn’t continually embarrass yourself like this.

                • joe from Lowell

                  See Lara’s comment below. If they knew he was there, it was deliberate, if not, negligent.

                  The fact that the targeting wasn’t deliberate is, in fact, central to your point.

                  lol

          • Lara

            The problem is that whatever procedures were followed before authorizing the attack were not sufficient to prevent the death of a teenage U.S. citizen. If the CIA knew that a teenage U.S. citizen was present in the group, then they shouldn’t have targeted it with a missile, because the U.S. should not deprive a citizen of his life without due process of law, and in any case should exercise a very, very strong presumption in favor of not killing chilren. If the CIA didn’t know that a teenage U.S. citizen was present in the group, then that basic lack of information about the individuals who were present should in itself have precluded the lethal use of force. Drones give the United States a great deal of power to kill people at will – we shouldn’t use that power without even knowing who it is that’s being killed.

            • Ben

              Silly Lara, due process does not mean judicial process, Holder said so. The same group of unaccountable executive branch honchos who decided to send other cruise missiles decided to send this cruise missiles. Due process!

              • joe from Lowell

                And will you be treating us to an explanation of why Holder was wrong to say that due process in the context of a war doesn’t mean a criminal trial before a judge?

                Because there are a couple hundred years of legal and military history in this country alone that say he’s right.

                • DocAmazing

                  Way to dodge the issue, Joe.

                • joe from Lowell

                  “The issue” he raised, the issue this subthread is about, is exactly the issue I brought up: the legal status of the targeting decision.

                  That you can’t force yourself to think clearly is not my problem.

            • So let’s run with this standard, and make it known that, if you can recruit enough U.S. citizens to fight with you and assign them to be “bodyguards” for your senior leadership, the U.S. military will be prevented from launching military strikes against your leaders if you decide to wage war against the U.S. Makes perfect sense.

              • DocAmazing

                It’s perfectly OK to kill those US citizens, however, if they’re Skeery Muslims.

                Glad we cleared that up.

            • joe from Lowell

              Thank you, Lara. It’s good to see that there is someone capable of keeping her head.

              The problem is that whatever procedures were followed before authorizing the attack were not sufficient to prevent the death of a teenage U.S. citizen. … If the CIA didn’t know that a teenage U.S. citizen was present in the group, then that basic lack of information about the individuals who were present should in itself have precluded the lethal use of force.

              But what you’re saying here is that no military action, even in the context of war, can take place unless there is 100% certainty that there won’t be any collateral damage. This is far beyond American law, Geneva, or any international law. It is simply not possible for any procedure to provide the type of guarantee you’re talking about.

              • Lara

                I think there’s a difference between saying that no collateral damage is ever permissible, in any case whatsoever (Lee Adama shouldn’t have blown up the Olympic Carrier!), and saying that the U.S. military should take far more stringent measures than it currently does in order to prevent the deaths of civilians and children. Drone strike technology, in particular, allows U.S. officials the luxury of time and consideration before authorizing attacks. Soldiers who are under fire might have to respond without full awareness of their surroundings; drone operators can always choose not to engage.

                (This is not to say that drone warfare is a good thing in general, since there are a number of strategic, political, and moral reasons to be extremely leery of the practice. It’s only to point out that the tactical flexibility of drone warfare increases the responsibility on the U.S. to avoid the killing of children and civilians.)

                • joe from Lowell

                  Drone strike technology, in particular, allows U.S. officials the luxury of time and consideration before authorizing attacks.

                  Sure, but there seems to be a leap in logic. You seem to be assuming that because the drone operator has this extra time, we can assume that they knew Awlaki’s teenaged son was in the location. You seem to be going so far as to say that any collateral damage in a drone strike should be assumed to have been known beforehand, and that the operator was negligent.

                  I think you’re attributing an implausible level of omniscience here. There is still plenty of fog of war. Drone strikes may indeed lower collateral damage for the reasons you explain, but it doesn’t follow that they are able to eliminate uncertainty completely, or even nearly so.

              • Lara

                It seems like the disagreement here is over the degree of latitude that U.S. forces should have to carry out lethal drone attacks, in the absence of specific knowledge about conditions on the ground. I’d argue that if the U.S. doesn’t have clear knowledge of who the people in a given area might be, or whether any of them are children, then it’s a presumptively bad idea to fire missiles at those people. (It’s possible to imagine cases in which this presumption might be overcome, but any such justifications should be far stronger than those which U.S. officials have so far adduced in support of the attack that killed Abdulrahman al-Awlaki.) Essentially, I’d like to see us adhere to the same standard that I think we would naturally apply to a foreign country conducting drone strikes within the U.S. – we would vehemently demand answers and accountability whenever children or civilians were killed, and would not accept lack of omniscience as an acceptable excuse for their deaths.

                • joe from Lowell

                  I’d argue that if the U.S. doesn’t have clear knowledge of who the people in a given area might be, or whether any of them are children, then it’s a presumptively bad idea to fire missiles at those people.

                  Now we have to get into a discussion of how clear is clear – and to do so in the context of people fighting a war.

                  Essentially, I’d like to see us adhere to the same standard that I think we would naturally apply to a foreign country conducting drone strikes within the U.S.

                  The standard we would naturally apply to a foreign country conducting drone strikes in the U.S. is that they should not ever do it, even against purely military targets, no matter what the circumstances, no matter what the state of war, no matter how certain they were of who they were targeting. I really don’t think that’s the standard.

        • Anonymous

          Lana,

          This comment demonstrates a lack of understanding of the term “collateral damage”. Existing international law regarding war requires efforts to minimize collateral damage. One could argue, perhaps even plausibly, that drone strikes are problematic because they don’t sufficiently minimize collateral damage. That’s not what you’re arguing, though: you seem to be suggesting that the specific identify of individuals who are victims of collateral damage in itself casts a legal cloud over the operation (for reasons that aren’t at all clear). I really don’t understand how you think this is supposed to work.

          • Lara

            Hmm. I suppose it’s true that I have some broader issues with the concept of “collateral damage,” at least as it’s invoked in contemporary political discussions. Even the blandness of the term seems like a copout – a way of glossing over the fact that the U.S. claims the right to kill some number of civilians in pursuit of its military objectives. What I’d argue is that activities which result in the deaths of civilians and/or children should be subject to rigorous scrutiny, because killing civilians and children is wrong. (It may in some cases be justified, in order to prevent a greater harm from occurring, but “justified” is not the same as “not wrong” – it’s only less wrong.) I’d also argue that the specific identity of Abdulrahman al-Awlaki matters because of what it demonstrates about the powers currently being claimed and exercised by the U.S. government. Executive branch officials ordered an attack that resulted in the death of a sixteen-year-old U.S. citizen, and no one has been held accountable for that action. When I say that this is wrong, I’m making more of a normative moral statement than a descriptive legal one, but I’m comfortable with that.

  • wengler

    I am beginning to see why none of the Bush criminality was even investigated, let alone prosecuted. We have two parties that believe the rule of law is worth as much as a pot of piss.

    Fundamentally, the problem is the ability of the US government to do these things in the first place. The military-industrial-congressional complex feeds these sorts of decisions as it sucks up more and more resources for itself and makes its executives unfathomably rich. Wealth and status-seeking builds paranoia which needs more weapons, more criminality and more inequality in prosecution of the law to protect it.

    Death warrants issued on the basis of secret evidence. You’ve come a long way America.

  • rea

    You’ve come a long way America.

    Compare Ex Parte Milligan, 71 US 2 (1866). Holder’s position seems fairly in accord with the limits on government power discussed in that case.

    • Holden Pattern

      Really? A case that held that the military couldn’t try or execute civilians in military courts operating the open is in accord with Holder’s position that the executive can try AND execute civilians based on secret evidence?

      The fuh?

      And are we seriously arguing that a bunch of people half a world away are as real a threat to the country as the entire Confederacy? Again, I say, the fuh?

      Or are you saying that the government was trying on the same stuff a century and a half ago, so it’s the same as it ever was?

  • Pingback: New topic: Instead of contraception, assassination! « Fraser Sherman's Blog()

  • joe from Lowell

    1 &4. A legal analysis that doesn’t take into account the legal reality of a state is war is pointless. These are not criminal suspects upon whom a sentence is being carried out, but targets identified by the military we sent to fight a Congressionally-authorized war as the enemy. We’re going to interject the federal judiciary into wartime target identification? If there’s a procedural deficiency, it’s one that needs to be solved within the confines of the executive branch.

    2. They should make the argument more explicit. I don’t think the line is feasibility, exactly, but the presence of a legitimate projection of government writ. We aren’t conducting drone strikes in Italy or Thailand, because the governments there can and do arrest al Qaeda members.

    3. Again, you’re ignoring the legal reality of the war declaration, and who it was declared against. It wouldn’t even be legal to use these powers against a Hamas or Hezbollah terrorist, never mind Timothy McVeigh. These are not rules for how the U.S. will act against perceived terror threats in general, but how it prosecutes this particular war that has been declared against al Qaeda.

    5. I don’t know what Holder was talking about this standard as an “imminent threat” standard, because that’s not at all what he logic was about, and because neither American nor international law required the existence of an imminent threat to legitimize a military strike. The standard he was actually articulating – that we’re going to hold off and hope for the chance to capture instead of kill, but will take the shot if the target is about to disappear – seems fine as a means of waging the war, but it has nothing to do with the imminence of a threat.

    • JohnR

      “..war that has been declared against al Qaeda.”

      Ah, so when the government declares war on the Bloods or the Crips, it will be absolutely legal for the government itself, or any agent thereof to assassinate members of those gangs by any means necessary, whether they’re in LA or in some other US city. As long as it’s on the orders of the President or his agent.
      Well, that’s good to know.

      • Really? That’s the best you could come up with?

        • Murc

          Er… what’s wrong with John’s statement?

          Al-Qaeda is a gang of criminals. Declaring ‘war’ on them is in fact directly analogous to declaring war on the Crips and Bloods.

          • No it isn’t. There’s no particular legal reason Congress can’t authorize military engagement with a non-state foreign entity. It might not be wise from a policy standpoint, but it’s something you can do if you decide you want to. Authorizing an actual state of war against your own citizens within your own sovereign jurisdiction (exempting cases of rebellion, anyway) is something for which there is no real precedent and that would obviously violate the Constitutional rights of the targeted (leaving aside the question of whether courts would actually uphold said rights for the time being).

            I can’t believe I actually had to type that full response out.

            • Holden Pattern

              So, we can declare war on, say, the Sinaloa Cartel or Los Zetas, and just start killing their people from the air?

              I mean, it’s pretty clear that the Mexican government can’t control them, and they’re a clear threat (probably far more of one than Al-Awlaki was).

              • Murc

                So, we can declare war on, say, the Sinaloa Cartel or Los Zetas, and just start killing their people from the air?

                I’ll be honest. I am amazed that hasn’t happened already.

                • Mexico is too close to the U.S. for this. Americans would actually see the results of this. No way it happens in Mexico. No way.

                • Holden Pattern

                  Mexico is too close to the U.S. for this. Americans would actually see the results of this. No way it happens in Mexico. No way.

                  Which I think cuts to the heart of the issue: almost all of the arguments FOR the “legality” of what’s happening here boil down to Captain Jack Sparrow’s rules for the executive branch, and not anything more principled than that.

              • Well, yeah. At least under U.S. law (but remember that the U.N. blessed military action against al Qaeda, so there aren’t any major international law hang ups here either).

            • Murc

              I don’t often agree with Holden, but I agree with Holden.

              And with regard to this…

              There’s no particular legal reason Congress can’t authorize military engagement with a non-state foreign entity.

              Legally speaking, you’re almost certainly correct.

              I find that sort of horrifying.
              Legally

          • joe from Lowell

            Er… what’s wrong with John’s statement?

            I fear that it will cause the IQ of anyone reading it to drop a point or two, that’s what.

            • DocAmazing

              Almost as much as Brien’s statement below.

            • JohnR

              Thanks for those kind words, Joe! Having lived in Massachusetts for some years, I understand the basis for comparison you have to make such judgements. So, you feel that my little analogy was too far outside the bounds of reality, eh? You don’t find in history any examples of a position being relentlessly pushed until it has reached a limit far beyond that any “normal” person would have believed at the start? Tell you what – the fact that we’re (well you Serious Folks are, anyway) having a considered, thoughtful discussion about how the United States government can go about doing things that even 50 years years ago would have brought shocked disbelief to most US citizens kind of proves my point. If your only counterargument is “Well, that’s just silly, and you’re just a big old silly silly-billy!”, I feel mildly confident that I may have the edge.

  • “Holder argued that the death warrant only applies to Americans targeted overseas, but it is not 100% clear why he distinguishes between foreign and domestic jurisdictions. The distinction may rest on the feasibility question; we assume that the United States government has the ability to capture terror suspects within the United States, or at least give them a reasonable chance of surrender.”

    Isn’t this only true to a matter of degree, though? We might not allow the authorities the right to just blow them up, but if law enforcement officials were charged with breaching some sort of heavily fortified compound with the expectation that they would meet with armed resistance they would certainly be allowed to employ things like tanks, swat teams using military tactics, and other things that would make it highly likely at least some, if not many, of the targets would be killed in the operation.

    • DocAmazing

      Not the same as just bombing the place, dude.

    • JohnR

      That’s actually a reasonably interesting argument. The thing is, the entire “law enforcement” aspect of the situation has been deliberately discarded already. Holder’s position is basically the Mafia response to a threat to the Family. You can pretty it up all you want, but it boils down to “Trust us – we know what we’re doing!” (Little shout-out to my buddy Sledge H., there)

  • justaguy

    I don’t understand why there’s a legal distinction between assassinating a citizen vs a non-citizen (the political distinction is, of course, obvious).

    If they’re being killed as an act of war, then I don’t see how they would need due process – you don’t give every soldier you shoot on the battlefield due process. I’m not saying I find the whole act of war rationale particularly compelling – but that seems to be an important element of Holder’s argument.

    If they’re not being killed as an act of war, but as part of some new unelaborated executive power, why distinguish between citizen and non-citizen? Is there any other place where due process rights are substantially different between citizen and non-citizen?

    Either I’m missing something (which is entirely likely) or this is a little half baked.

    • JohnR

      Is there any other place where due process rights are substantially different between citizen and non-citizen?

      You mean apart from the Constitution of the United States? Or am I missing something embarrassingly obvious?

      • justaguy

        Ummm…. the due process clause of the Fourteenth Amendment reads:

        “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

        So, any person is entitled to due process – it isn’t just something citizens are granted. Is there any moment in a criminal procedure that a citizen is given due process where a non-citizen would not be?

  • Christopher

    How did we get here?

    We have people, arguing on a liberal blog, that the President has the right to use secret evidence obtained with secret laws to kill its own citizens.

    And don’t give me that “but he was a really really scary American citizen!” either.

    If the fact that the executive branch saying, “No, trust us, this guy’s really bad!” is enough to kill a man, why do we even have trials? Why not just let the cops compile evidence and decide on their own who needs to be killed or jailed?

    Joe from Lowell: Incidentally, the problem with declaring war on a stateless enemy is that it becomes harder to prove who the enemy is. Why you think, after Bush, that “No, seriously, we totally know this guy’s a terrorist, we have so much evidence that it would waste too much of your time to show you it.” is a reasonable standard of evidence is absolutely beyond me.

    • Murc

      I am perhaps putting words in Joe’s mouth, but he really does seem to accord al-Qaeda an awful lot of… well, respect, for lack of a better term.

      I don’t mean his saying that it was legal to declare ‘war’ on them. That is, regrettably, true. But he seems to think that doing so wasn’t, on its face, sort of insane. That treating a bunch of cave-dwelling criminals like they were a nation state or if they were, say, Cobra, wasn’t something that would be laughable if it weren’t so serious.

      • Ben

        I would be a lot more scared of Al Qaeda if Joseph Gorden-Levitt was their leader. He’s equal parts collected and intense. Perfect for a terrorist organization.

        • Murc

          Clearly, the possibly of Cobra incepting our leaders REQUIRES these targeted killings.

  • Digby has an article on this, which argues that it will continue until there is a visible and effective agency of international law.

    It is a sign of how deep in this we are that you do not mention the reason that the US did not assassinate Breckenridge (or Lee) after a trial in absentia, which is what you are advocating here: it would have violated the laws of war. Less than a century ago, we went to war to end unlawful acts; now we do not even admit the concept.

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