Subscribe via RSS Feed

On the Holder Speech

[ 156 ] March 6, 2012 |

I recommend both Kevin and Adam.

The standards laid out for when a targeted killing can be justified are not, in themselves, unreasonable:

First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

But the problem, as Adam says, is that a great deal of the work is done by the term “imminent threat,” and Holder’s follow-up already indicates slippage:

But don’t assume that when Holder says “imminent threat of violent attack,” he means that you’re actually part of a specific plot threatening American lives. “The Constitution does not require the president to delay action until some theoretical end stage of planning when the precise time, place, and manner of an attack become clear,” Holder said. That would introduce an “unacceptably high risk of failure.” When he refers to “failure,” Holder presumably means failing to kill the target before the attack or plan for an attack materializes, not the possibility that the government might accidentally kill an innocent person.

And it’s precisely this potential for defining “imminent threat” down that makes the lack of oversight unacceptable. If the executive branch can’t demonstrate evidence that there is an “imminent threat” to some sort of independent body, there’s no reason to believe that those being targeted for killing in fact pose imminent threats, and the potential for abusing the gravest power the executive branch possesses remains. Without meaningful oversight, these standards are only as good as the administration applying them. And that’s just not nearly good enough.

Share with Sociable

Comments (156)

Trackback URL | Comments RSS Feed

  1. Murc says:

    First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

    Given the fact there’s no way in hell Anwar al-Awlaki satisfies the first requirement on that list, I can only conclude that the entire thing is basically a fig leaf.

    • Ben says:

      In the speech Holder says that Anwar Al-Aulaqi was the head of Al Qaeda operations in the Arabian peninsula, and that he gave operational instructions to that Christmas 2009 would-be bomber.

      • Murc says:

        Given the fact that the Executive Branch never saw fit to charge Al-Awlaki with a damn thing, I yet remain skeptical about his involvement in crimes against the U.S. Typically the government likes to prove that sort of thing in court so that everything is nice and legal.

        Even assuming both those facts, directing things in the Arabian peninsula has nothing to do with the U.S, and the last time I checked helping some idiot blow himself up qualifies as a ‘crime’, not an ‘violent attack against the United States.’

        The balance of evidence seems to be that he was a criminal douchebag. Sadly, the executive branch chose to deal with his lawbreaking by having him unilaterally killed rather than indicted. It has also decided to promulgate a set of rules by which it will have more people unilaterally killed in the future.

        This is all certainly legal, which demonstrates a whole host of problems with the law.

        • Ben says:

          I totally agree with you. I was just pointing out that the Administration has a ready line for that objection.

        • joe from Lowell says:

          Given the fact that the Executive Branch never saw fit to charge Al-Awlaki with a damn thing, I yet remain skeptical about his involvement in crimes against the U.S.

          You can be as one-way “skeptical” as you want, but you still have absolutely no basis for the claim Given the fact there’s no way in hell Anwar al-Awlaki satisfies the first requirement on that list.

          Seriously, what was that? How could possibly make that statement – that there’s no question he did not pose a threat?

          Even assuming both those facts, directing things in the Arabian peninsula has nothing to do with the U.S

          You have heard of the USS Cole, correct?

          and the last time I checked helping some idiot blow himself up qualifies as a ‘crime’, not an ‘violent attack against the United States.’

          You do know he was trying to blow a hole in an airplane in order to kill everyone on board, right?

          • Murc says:

            I’m not sure what the USS Cole has to do with anything. That was a crime committed quite some time ago. I believe Anwar al-Awlaki was like six or something when it went down?

            You do know he was trying to blow a hole in an airplane in order to kill everyone on board, right?

            Assuming this is true, that makes him a criminal. If that qualifies as an ‘attack against the United States’ which renders him ineligible for things like due process, then something is deeply wrong.

            Basically? al-Awlaki was most likely a criminal who fled beyond casual reach of law enforcement. (I say most likely because the government never saw fit to charge him with anything.) The proper response to this is to plan for his apprehension once its practical, not to decide he gets a death mark and no trial. And if we ARE going to be in the business of deciding that people get death marks, rather than trials, I do not trust the executive branch to handle that all unilaterally and beyond the reach of oversight.

  2. Ben says:

    It seems like there’s another condition similar to the imminent threat language that’s ripe for abuse, and it’s laid out in the sentence introducing the three conditions cited in the post:

    [A]n operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances:

    As Al Qaeda becomes less and less of an operational group and more of an idea or motivating principle, the US is going to gain more and more discretion in identifying who is and is not a member of Al Qaeda. In addition, the phrase “associated forces” doesn’t mean anything outside of operational context. It could be as narrow as people involved in the execution of an attack, or as broad as civilians expressing support for a Taliban-like group that harbors groups designated as Al Qaeda.

    The overall point is that these are terms which have no inherent content, and it is up to the Administration to supply that content as they plan and execute operations. And as with the “imminent threat” language, if they don’t have to justify the operational definition of those terms in front of an independent body, they will become sources of abuse.

    Also I know this is a speech and not a legal document but gotdamn “lethal force would be lawful in at least the following circumstances”? At least try to shovel pseudo-justificatory horseshit with a little more finesse than that.

    • Charlie Sweatpants says:

      “Also I know this is a speech and not a legal document but gotdamn “lethal force would be lawful in at least the following circumstances”? At least try to shovel pseudo-justificatory horseshit with a little more finesse than that.”

      This Administration, like the one before it and the national security bureaucracy that spans them both, doesn’t give a cantilevered fuck about the spirit or the letter of the law in regards to killing “bad guys”. They’ve convinced themselves that they can tell who does and does not deserve to get dead. They’ll go through the motions of having some of their lawyers say “it’s all okay because”, but that’s the extent of their interest. They know almost no one cares about this, so they don’t see any need to bother with high quality horseshit.

    • mpowell says:

      There is a difference, rhetorically, between a phrasing of ‘lawful at least in the following’ and ‘lawful in at least the following’. The latter emphasize that there are additional circumstances where killing would be lawful while the former does not.

      I continue to believe that this is an unavoidable component of being in a continual state of war. In the prosecution of war, it is unavoidable that the executive will have broad and unreviewable discretion in the use of force. But it is preposterous that we have now been at war for 10 years. The AUMF needs to be revoked and then we can start talking about what kinds of non-police actions are tolerable in a peacetime context. That is the only sensible approach, both from a legal perspective and also from a political and rhetorical one.

      • Holden Pattern says:

        This is the Schmittian “state of exception” argument, which some were concerned about under Bush — there was a lot of talk about Carlos Schmitt by lefties during the Bush years. Seems to have evaporated now, though.

        Obama may be a son-of-a-bitch, but he’s OUR son-of-a-bitch. Amirite?

    • joe from Lowell says:

      It has never been the case, in either American or international law, that civilians expressing support for force are, themselves, considered a force.

      Your argument about there not being a context to interpret the doctrine ignores all of the existing context on the subject. This speech about war powers wasn’t given in a vacuum.

      • Ben says:

        1. The “civilian expressing support for force” thing was as far as I could think of taking “associated force”. More plausible scenarios exist.

        2. This speech is elucidating new legal concepts. New concepts mean new implications that may change the previous context of existing law. Now I might be right or I might be wrong. But just saying “previous legal context doesn’t have room for any of this” is no response.

        3. Take it up with Farley. In his post he makes a similar argument (Hanoi Jane and all that) and may be better able to argue the point than I. (He cites the phrase “senior operational leader” instead of both that and “associate forces” but we’re making the same point).

        • joe from Lowell says:

          1. OK. Targeting civilians who aren’t actually fighting or even contributing to the war effort would be a BFD, and it would be a serious problem if the doctrine that was just expressed could plausibly be read to apply to them.

          2. No, it’s really not. It’s applying long-existing legal concepts. There isn’t a single new legal concept in the entire speech.

          3. I did.

          • Ben says:

            2.

            “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

            This isn’t snark: do you know where else that distinction was made? Any court cases? Federalist Papers? Anything? I don’t. Holder seems to hint that there’s a recent court case that does:

            The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.

            Do you have any idea what court case he’s talking about? The closet thing I could think of was Hamdi, which says the opposite of what Holder wants it to:

            It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad . . . In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

            Now I’m not one o’ them fancy big-city lawyers. In fact I’m neither a lawyer nor fancy. But seems to me like that says the opposite of what Holder wants it to say, and I can’t think of a more recent case that deals with GWOT Due Process issues. Let alone one that makes a distinction b/t due process and judicial process.

            Hamdi dealt with prisoners already detained by the US, which isn’t exactly on point, but I’m not trying to base a theory of legal extrajudicial terrorist killin’ on it, and it seems like Holder is.

            3. I’m glad you did, I’m as interested in what he has to say as you. Hope he answers.

            • Ben says:

              I did a little bit more digging. Holder refers to the considerations that the government has to use in evaluating due process when taking away life, liberty or property:

              In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.

              Holder’s overall reference to the balancing approach was developed in the 70s in a case called Mathews v. Eldridge. That case determined that the government has to balance:

              First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

              See what Holder didn’t mention? The second factor, the risk of false positives and the value of additional safeguards.

              Generously assume that Holder isn’t outlining the actual criteria the government uses to balance this stuff and that the omission of the second factor was a rhetorical and not a legal decision. Doesn’t it say something that Holder omits considering how the government can err, and the value in keeping the government from erring? If we were reading things into it, we could infer that the Administration’s legal procedure isn’t very good at identifying false positives or recognizing the need for additional safeguards.

  3. Ben says:

    And this was just special

    Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

    So we’ve stopped using depleted uranium bullets, that’s good news.

  4. owlbear1 says:

    “Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments,” Holder said.

    “..And if they aren’t assured they will face zero-accountability for being wrong they just aren’t willing to risk it”, Holder left unsaid.

  5. soullite says:

    What right do any of you have to complain? You all support this – You’re all planning on voting for it. So other than to make yourselves feel better (a feeling you didn’t earn and have no right to), what’s the point? You’ve chosen your side in all of this. You don’t get to wash your hands of this.

    • witless chum says:

      You think you do, buddy, because you voted Green or whatever? They’re blowing up children in faraway places in your name, too. Your tax dollars, etc. Want me to link to some grisly pictures of what you paid for? Same as me.

      Maybe you’ve earned your better feelings more justly than I have, but the people Obama kills are still just as dead. They won’t become less so by you not voting for him and throwing a fit. If I believed in God I’d have to invoke his name a few times before typing this, but having more soullites in the Democratic Party would be a good thing, not a bad thing.

      I think this country’s foreign policy is malignant, wasteful of money and kills too many people and I’d love to change that. If you’ve got an idea more likely to work than by dragging the Dems leftward, I’m all ears.

      • Furious Jorge says:

        I would argue that, depending on which state soullite calls home and how he voted in 2000, that his vote may very well have led directly to this shit that he spends so much time excoriating us for.

        (By which I mean, if he voted the Purity and Ponies – er, I mean, Green – ticket in a state like New Mexico or Florida or New Hampshire.)

        • DocAmazing says:

          You wanna bite down on that stuff. Gore lost on his own, and the numbers have already been run on that.

          If you want to re-open the internecine strife on the left, you’re picking a pretty bad time to do it.

          • Steve LaBonne says:

            Actually he WON on his own, as the Miami Herald study showed, and his campaign lost a won election by being too stupid and craven to demand a full recount in Florida right from the beginning. How soullite can be blamed for that I have no idea.

          • Furious Jorge says:

            Obviously I want no such thing. Okay, maybe it’s not obvious. But people like soullite who do not inhabit the real world but have no problem throwing rocks at those of us who do bug the shit out of me.

            Allow me to retract the specifics of my comment, if not the spirit.

        • witless chum says:

          I got no problem with voting Green. I just wouldn’t do it again, myself.

          /No enemies to the left.

    • John says:

      There are two political parties that have any chance of being elected to the presidency. One of them is bad on these issues. The other one is really bad on these issues. The one that is merely bad on these issues is also better than the other viable party on nearly every conceivable issue. The fact that one is going to vote for the preferable viable party does not mean that one cannot criticize that party on issues where one disagrees with it.

      Helping to bring about President Romney isn’t going to make these issues any better.

    • Honorable ..Bob says:

      What right do any of you have to complain? You all support this – You’re all planning on voting for it. So other than to make yourselves feel better (a feeling you didn’t earn and have no right to), what’s the point? You’ve chosen your side in all of this. You don’t get to wash your hands of this.

      Of course, you’re absolutely correct.
      They voted for the Affirmative Action president that nominated the Affirmative Action attorney general.

      Things aren’t gonna change…until things change.

  6. david mizner says:

    The core political problem here is that the government is claiming the right to kill anyone anywhere and that this crazy-seeming claim is not entirely crazy given the crazy 2001 AUMF. To be sure, much of what the U.S is doing can and does violate international law — Congressional authorization is not an exemption — but as long as that law remains operative, the left is sure lose all the political and legal arguments over detention, due process, etc. The goal should an end to the 2001 AUMF, preferably but not necessarily through legislation. It would make sense for the end of the AUMF to coincide with the end of combat operations in Afghanistan.

    • Charlie Sweatpants says:

      “The goal should an end to the 2001 AUMF, preferably but not necessarily through legislation. It would make sense for the end of the AUMF to coincide with the end of combat operations in Afghanistan.”

      Agreed, but how likely is that? At some point we’re going to get out of Afghanistan, but the AUMF and the Patriot Act will keep rolling forward as legislative cover for keeping us safe against all kinds of “threats”. The government isn’t going to give up the power to kill abroad or spy at home without a fight, and it’s hard to see a political coalition with enough power to overcome that. Frank Church did a lot of good work, but he paid dearly for it at the ballot box, and that sort of thing casts a long shadow.

      • DocAmazing says:

        You know, suggesting that Church’s loss might just have been due to the people he pissed off could spark a conversation about Occam’s razor and conspiracy theorizing and how deep politics doesn’t happen in the US. Better to bring up what a bunch of zanies those Republicans are.

        • John says:

          The fact that a liberal Democratic senator from Idaho narrowly lost re-election in a very good year for Republicans has to be explained by a CIA conspiracy?

          • Steve LaBonne says:

            More to the point, I think, is that his work was never really all that effective and ultimately was pretty easily undone. Those things would have happened even if he had been re-elected in a landslide. There are very deep institutional and cultural problems that can’t be remedied by one law or one election. If anybody knows of an effective way to train the American sheeple not to be a bunch of goddamned bedwetters who are easily scared into cheering for even the most outrageous “security” measures, I’d love to hear it.

          • Charlie Sweatpants says:

            “The fact that a liberal Democratic senator from Idaho narrowly lost re-election in a very good year for Republicans has to be explained by a CIA conspiracy?”

            Not at all, and whether or not his high profile investigations into flagrant intelligence abuses actually cost him re-election in 1980 (or the Democratic nomination in 1976) isn’t really the point. All that stuff he exposed won him a few pat on the back editorials and basically nothing else. It didn’t endear him to his party or his constituents, and he was working at a time when the people yelling “treason” were relegated to typo-ridden newsletters.

            These days, any serious effort to curtail government power to surveil, detain, or kill would have the entire right wing noise machine calling you a terrorist, the Democratic establishment distancing itself, and marginal popular support at best. It’s tough to see how those things can be overcome absent a pretty remarkable shift in the overall political climate. I don’t think it’s long-term impossible, but as much as I’d like to see it tied to our inevitable Afghan withdrawal, it doesn’t look plausible at the moment.

    • John says:

      But that’s completely implausible. Congress is worse than the president on these issues.

      • david mizner says:

        It wouldn’t necessarily require an act of Congress. Wars end in various ways. In any case, everything is implausible in terms of rolling back the GWOT. In my view, this is the least bad option.

    • mpowell says:

      I agree with this take and posted similarly upthread. As difficult as it would be to end the AUMF, that is a far more plausible path forward than developing the restrictions you would like to see on the executive’s discretion in the use of force in the context of a live AUMF.

    • rea says:

      The core political problem here is that the government is claiming the right to kill anyone anywhere

      That’s a very strange reading of Mr. Holder’s remarks, to put it mildly.

      • Murc says:

        Yeah. The BUSH Administration claimed the right to kill anyone anywhere.

        The Obama Administration merely claims the right to do it 1) outside of the US, and 2) in situations in which it determines, with no review or oversight, that it would be a real good idea to do so.

        The latter IS different from the former.

        • joe from Lowell says:

          3) only as part of a declared war.

          That’s sort of an important bit. Bush claimed that the much-more-expansive vision of when the government could kill people was based on inherent executive authority, and could be invoked unilaterally by the President, even without and Congressional authorization. IIRC, his administration even argued that they could do so over the explicit objection of Congress.

          • DocAmazing says:

            So now the AUMF is a declared war…against an undefined enemy…with no parameters as to when that war is over, because there’s no one to accept a surrender from.

            Good to know.

            • Holden Pattern says:

              I think the primary distinction between the Obama forever war and the Bush forever war is that the Obama forever war doesn’t EXPRESSLY claim the US as part of the battlefield.

    • joe from Lowell says:

      The goal should an end to the 2001 AUMF, preferably but not necessarily through legislation. It would make sense for the end of the AUMF to coincide with the end of combat operations in Afghanistan.

      I think that’s exactly what the administration is building up to. Remember when Panetta took over as Secretary of Defense, and talked about “defeating” al Qaeda meaning, in concrete terms, finishing off “about twenty guys?” Patraeus then followed up by seconded the remarks, saying that the decapitating the leadership of al Qaeda would strategically defeat them, meaning, render them incapable of dealing the United States a strategic blow. This John Kerry-esque sentiment – reducing the threat from al Qaeda to a nuisance, that doesn’t pose a strategic threat – is a description of victory conditions, and they even explained what has to be done to reach those conditions.

      And then Obama holds the press conference in which the Fox reporter asks him about “appeasement,” and everyone focuses on the first line, “Ask Osama bin Laden if I engage in appeasement.” It was the second line that made my ears prick up: “As the 22 of 30 senior al Qaeda leaders who’ve been taken off the battlefield.”

      They’re talking about winning this, and the war being over. I think the administration is going to declare victory in the war against al Qaeda some time in the second term, and it will actually be over. The 2001 AUMF will no longer be in effect, along with all of the war powers based on it (which includes the detention provisions in the 2012 NDAA).

  7. c u n d gulag says:

    We say we’re for freedom, liberty, human rights, and the rule of law, for everyone – and yet, while we drone on and on about that, in reality, we drone on and on…

    • JohnR says:

      All words and lip service, as you know. The Constitution was under attack almost from the moment it was ratified, but the Republicans used the Dreaded Communist Menace to fatally wound it and the Dreaded Islamic Menace to finish it off. History has a special place for Cheney and Bush and their band of weasels. I include Obama in this, since he is in essence a Republican at heart (actions speaking louder than words, and all that). The sad thing is, I’m sure that some of the individuals involved in destroying the United States government really did have good intentions and thought they were acting for the best. Road to Hell and all that.
      It turns out that the price of liberty was, indeed, eternal vigilence, and few of us over the past 100 years felt like paying it. Still, it’s not so bad, right now, is it? It never is, until suddenly it’s worse.

      • c u n d gulag says:

        Yeah, “same as it ever was…”

        But worse.

      • Steve LaBonne says:

        Obama deserves all the opprobrium he gets on this, but frankly it’s difficult to imagine anybody capable of being elected President who would be able to, or even be the kind of person who wanted to, resist the siren song of the ever-expanding national security state (or abdicate powers usurped by his predecessor). Defeatism is not a state of mind I’m comfortable with, but I really don’t see how this ratchet can be stopped, let alone reversed. I shudder to think what will happen the next time there is a successful attack on US soil, no matter who is President at the time. It can indeed get worse, a lot worse. And probably will.

        • DocAmazing says:

          Gee, after the Murrah Building went down we got the death penalty for growing too much pot and nothing at all about Jesus freaks with bombs.

          Embrace me, you sweet embraceable Yoo.

        • c u n d gulag says:

          I’ve written about this too many times, so I’m not going to go into a great deal of details – but, to summarize:

          After decades of being accused of being cowardly appeasers, anyone who expected the Democratic President after “Baby Doc” Bush to not use AUMF if needed, or to NOT do some of the other heinous ‘national security’ things done in our name by the Bush Crime Family (going back to Reagan, when “Papa Doc” was the one doing most of the orchestrating), was delusional.

          The next Democratic President after 9/11 had to prove he was a every bit the national security nut that Republicans were – but more effective. And the privacy baby was thrown out after 9/11, when the national bathtub was filled with security concerns.

          And to have expected the next Democratic President after Bush to roll everything back (to the imperfect way it was before him), was/is crazy

          And to expect the very first BLACK DEMOCRATIC PRESIDENT to roll things back is to go to a completely new level of insanity.

          Sadly, I don’t see any of these genii’s “Baby Doc” Bush let loose being put back into the bottles anytime soon – if ever.
          Nay, not sadly – tragically…

          • Steve LaBonne says:

            I think that’s a little too exculpatory. The utter and open contempt for the very idea of any kind of meaningful oversight goes farther than would be required by any political necessity that I can detect.

  8. Rarely Posts says:

    I’m not endorsing the administration’s position, but it’s always struck me that Al-Awlaki could have just turned himself in, or just moved to London or Paris or Toronto or Cairo, or even just sent a letter to the United States government saying: “you want to try me? I’ll meet you at the airport after you’ve indicted me. Cheers!” A person has a right to a jury trial, not a right to evade police. Of course, this reasoning would be much more persuasive if the Administration had indicted him.

    I do think the “capture is not feasible” is an important qualification, and it really does exclude extrajudicial killing in a widespread number of circumstances.

    • Rob says:

      No it really doesn’t. Capture may not be “feasible” for any number of reasons; expense, risk of life, lack of actionable intelligence far enough ahead of time, hostile community presence even no place to hold such a person.

      • Rarely Posts says:

        Point taken. I guess my real point is that I don’t think the Al-Awlaki case is really a compelling example of what’s wrong with this policy. I’m currently inclined to agree with Kevin Drum’s position articulated in the linked post.

        In particular, I don’t agree with the position that everywhere is a combat zone under the AUMF. However, I have some sympathy with the recognition that some foreign countries and locations, while not traditional battlefields, really are outside of United States’ control, and some actors really are acting more as enemy combatants than as criminals. The more a person’s conduct is that of an enemy combatant in an inaccessible foreign country, the more justified treating them as an enemy combatant.

        • Christopher says:

          A person has a right to a jury trial, not a right to evade police. Of course, this reasoning would be much more persuasive if the Administration had indicted him.

          So, Roman Polanski should be the next target, than?

          The fact that you do not have the right to do something does not mean the government has the right to kill you.

    • Murc says:

      Why should he turn himself in? There was no indictment or subpoena active for him. There was no arrest warrant. Turn himself in for what? I agree that people generally don’t have a right to evade police, but in this case the cops were in fact not looking to him.

      As for “capture not being feasible…” there are tons of people who are committing criminal acts against the US for whom capture isn’t feasible. There are drug kingpins who have caused more people to die by violence in the U.S than most acts of terrorism, whose locations we’re fairly certain of. CRIMINALS EVADE CAPTURE ALL THE TIME. It is only recently we seem to have decided that this is a good reason for summarily blowing them the hell up.

      • joe from Lowell says:

        As for “capture not being feasible…” there are tons of people who are committing criminal acts against the US for whom capture isn’t feasible.

        None of those others have had the war power invoked against them by Congress.

        A state of war is a legal reality, and this administration’s policy pays a great deal of attention to the distinction between what a war declaration authorizes the President to do and what he can do without one.

  9. tjkopena says:

    A couple articles have made good arguments about why Al-Awlaki couldn’t just turn himself in:
    - The kill list is secret, the government doesn’t have to declare their intent to assasinate, so a target would not know unless word leaked.
    - How could a target have any faith they would not be immediately assasinated upon surfacing, whisked off to indefinite detention at Guantanamo, os worse?

    • B-Rob says:

      Well I certainly don’t buy that argument. To start with, al Awlaki KNEW he was on the list; hell I knew he was a target since they tried to get him two other times.

      And yes he did RISK being whisked off to Gitmo in theory, but in practice the Obama administration is Mirandizing people who are caught in the US and prosecuting them . . . a fact that should not have been lost on someone as intelligent as al Awlaki, since that is what happened to the undie bomber he (allegedly) sent to the US to bomb an airplane. In other words, there is nothing but speculation that “prohibited” al Awlaki from showing up at the US consulate with an al Jazeera camera crew, and demanding an attorney. The reality is that al Awlaki, despite his options fir turning himself in, chose not to so he could continue the war. This was his choice and it came up a cropper. But the idea that he had “no options” is demonstrably false. He simply chose not to take them.

      • BradP says:

        And yes he did RISK being whisked off to Gitmo in theory, but in practice the Obama administration is Mirandizing people who are caught in the US and prosecuting them . . . a fact that should not have been lost on someone as intelligent as al Awlaki, since that is what happened to the undie bomber he (allegedly) sent to the US to bomb an airplane.

        Wait… Are you saying that someone who knew he was being targeted by the US government for assassination should have attempted to enter the country?

        The government made it publicly known that it had enough evidence to decide to kill him with a predator drone. Its impossible to reconcile that with the idea that al Awlaki should have just turned himself in for trial.

        • timb says:

          Well, apparently the idea is that the US government would have respected an Al Jezera camera crew, which is funny in a way.

          First of all, the US government hasn’t shown a lot of deference to protecting the lives of Al Jazeera camera crews in the past. Secondly, AJ runs out of the Gulf states and a paranoid guy like Al-Alwaki would have been pretty sure AJ was co-opted by Western intelligence.

          Once a bill of attainder is announced, the victim/target has little reason to believe anyone. Ask Pompey how his dockside Egyptian reception went.

          • B-Rob says:

            So al Awlaki strolls up to the gates of the US embassy in Yemen with an al Jazeera camera crew filming him, and you think the Marines at the gate would have opened fire?

            C’mon! Let’s get serious! You are making excuses where there are none. If al Awlaki wanted to challenge the charges against him, he could have. There were more available options here than you can shake a stick at. He had no interest in challenging anything, so he continued to fight.

            • DocAmazing says:

              No, Al-Awlaki gets his posse together, starts heading toward the US Embassy, is many miles away, and is hit by a sniper team ling before he’s anywhere near the gate.

              Camera teams attract attention, and are frequent targets even in the absence of a guy who is already marked for a hit.

              • B-Rob says:

                You have been watching too many episodes of “Covert Affairs.” That is not how the real world works. We do not have snipers on roofs waiting to shoot on the if-come that someone MIGHT show up to harm the embassy. Indeed, the various attacks on embassies should make it clear that that is not the situation.

                And why does he need to have “a posse” to go to the embassy?

                And the US obviously did not always know where he was since it took the US years to finally get him. Yes, a camera crew attracts attention, and that is just what you want. Cameras rolling, walk up to the gate, press the buzzer and turn yourself in. Or go to the French embassy and do it there. Like I said, if he was motivated, there was no reason he could not have done that. Indeed, the Undie Bomber was on US radar (ineffectively, I admit) because of a walk in at the Nigerian embassy.

                • DocAmazing says:

                  The US has a bunch of KH-11s in orbit at all times, and that’s the part we know about; there’s a hell of a lot of SIGINT going on at any time–that’s how we got the drones to Outer Yemen. In addition to SIGINT, we have lots of HUMINT–information on the whereabouts of people like Al-Awlaki is always trickling in, though our oddly-named intelligence services often decide not to pay attention. That’s all off to one side, though; a camera crew from Al-Jazeera doing anything rings bells. you don’t have to have permanent sniper crews on all of the roofs in Amman; you just have to have a couple of guys on your payroll at Al-Jazeera (and we do) and a team ready to go (and we do).

                  A guy with a US Government hit out on him is not going to be able to travel unmolested, and to suggest that he can is at best naive.

            • BradP says:

              C’mon! Let’s get serious! You are making excuses where there are none. If al Awlaki wanted to challenge the charges against him, he could have.

              First, lets go ahead and reestablish that the administration was convinced enough of his guilt to pursue his assassination.

              We know al Awlaki had some pretty negative views of the US government, but lets put ourselves in his shoes and ask these questions:

              1) How will the trial be presented? Will it be a rational pursuit under the code of law for justice, or more like the parading of a captured enemy?

              2) If the Obama administration has already determined al Awlaki as being a priority deserving of predator drone assassination, do you have the slightest shred of believe that he would have been released upon winning his challenge?

              I simply cannot buy that you can simultaneously declare someone an enemy combatant in a state of war and that declare that that same someone should use civilian modes of justice.

              How well did the very innocent Maher Arar’s brush with US Homeland Security work out for him?

              • Malaclypse says:

                1) How will the trial be presented? Will it be a rational pursuit under the code of law for justice, or more like the parading of a captured enemy?

                The tragedy is that, back in 1945, it was obvious to the world that the US would engage in the former.

                • John says:

                  This was not at all obvious. At the time, a lot of people were seriously skeptical about the Nuremberg Trials, and feared they would be politicized show trials. This is, indeed, exactly what the defendants argued that they were.

                  The conduct of the trials, and particularly the acquittals of Papen, Fritzsche, and Schacht, were probably the main things convincing most people that the trials were fair. Not too many people were convinced beforehand.

                • DocAmazing says:

                  The acquittal of Schacht was a real blow. It helped to get us where we are now–the money men are immune to responsibility for the destruction they cause.

                • Malaclypse says:

                  The conduct of the trials, and particularly the acquittals of Papen, Fritzsche, and Schacht, were probably the main things convincing most people that the trials were fair. Not too many people were convinced beforehand.

                  A fair comeback. But my point was that then we believed in fair open trials, in a way that we are now too fearful to contemplate.

              • joe from Lowell says:

                This objection is ridiculous, Brad. We have the Underpants bomber and plenty of other examples to demonstrate how the administration treats terrorism suspects it actually gets it mitts on.

                Every single one of them – every. single. one. – has been arrested by the FBI, held in civilian prisons with the full of rights of criminal suspects, and tried before federal criminal courts.

                You are making this up.

                • BradP says:

                  There are also dozens of known examples of individuals being cleared after being held for nearly a decade in Guantanamo.

                  I do believe that he also falls well within the criteria of the indefinite detention provision in the NDAA.

                  Our government has been working tirelessly to give the executive a clear ability to hold individuals classified like al Awlaki indefinitely without trial, and you are saying that he should have just turned himself in. Ludicrous.

        • B-Rob says:

          Nope. Show up at the US embassy or consulate with an al Jazeera or al Arabia camera crew and surrender. Show them your passport and, while on camera, demand a trial by jury and an attorney. Since the consulate is US territory, Obama would have been quite constrained from treating him any different than the undie bomber.

          He had another choice, too — go to France, England, Sweden, Australia, or some other country that does not have the death penalty, and request asylum. If he was not actively connected with al Qaeda in the Arabian Peninsula, there would have been not reason to TARGET him further, though they might want to extradite for trial. al Awlaki, an intelligent man with a knowledge of how the West works, did none of these things.

          You think turning himself in for trial would have been a WORSE THING than waiting for a Predator or B-52 strike? Really? No, he had quite workable options. He simply chose not to avail himself of them.

      • DocAmazing says:

        In other words, there is nothing but speculation that “prohibited” al Awlaki from showing up at the US consulate with an al Jazeera camera crew, and demanding an attorney.

        Well, nothing if you don’t count snipers…

        • B-Rob says:

          You are making up excuses. Explain to me why turning himself in to the Brit or French embassy was not an option.

          • DocAmazing says:

            He’d never have gotten that far.

            • B-Rob says:

              This is silly. He was in Yemen plotting and practicing FOR YEARS before the US got him. You telling me that, in a day an age where Osama was hiding in plain sight for years, that al Awlaki could not have been in Sanaa (pop. 1.8 million, a little bigger than Philly) undetected? He could NEVER have walked to the Brit embassy and turned himself in? C’mon!

              • DocAmazing says:

                How much time elapsed between the hit order and the hit? How many attempts were made on his life in that time?

                See, we don’t know what was dome besides the drone strike, because a drone strike’s hard to hide. Other forms of attempted assassination can be played off–as we did for a very long time during the Cold War. If you think that the drone strike was the only attempt on Al-Awlaki, I’d like to show you some properties…

                • B-Rob says:

                  I never said that was the only attempt on al Awlaki! It wasn’t. I recall he was injured in a prior attempt. My point is that there is no reason whatsoever to think that he could not have walked up to the US embassy, handed them his passport, said his name, and been arrested to stand trial. He did not want that because he was busy running a jihadist terrorist organization.

                  I mean, really — if you were innocent and knew they were gunning for you, do you hang out in the desert with bomb makers and run a website and magazine about waging jihad, or do you use every effort to stay safe and prove your innocence? Your father got the ACLU to sue on your behalf . . . you don’t reach out to them to arrange a surrender?

                  Come on, man!

                  You go to the Swiss embassy and ask for asylum! You go to a Catholic Church! You go on TV or the web and proclaim your innocence! He was a sophisticated guy who was raised in the US. He knew how to get out from under a Predator, but he chose not to.

                • DocAmazing says:

                  If you seriously think that the people who already nearly killed you at least once before are going to let you just waltz up to a verym, very public and very, very open place like the Swiss embassy, your lifespan is going to be quite short.

                  The guy was going to be hit regardless. Any attempt to surrender would merely result in his being intercepted and hit well before the site of surrender.

              • timb says:

                How do you KNOW any of this? The US media, relying on government sources told you. And, you bought it

          • rea says:

            The reason it was not an option for him is that he really was a senior operational leader of al Qaeda who gloried in his role in terrorist attacks on the US. A trial in a US court was not something he could risk.

            • B-Rob says:

              Exactly! Seriously, you are a US citizen. You know the US was gunning for you and you had done nothing. What would YOU have done under the circumstances?

              I know what you DON’T do. You don’t hang out with Yemeni terrorists. You don’t stay in a country that is becoming synonymous with terror. And you certainly don’t publish a website and magazine about engaging in jihad against the US. Indeed, he certainly did not act like a person who didn’t want to get hit by a Predator.

              • Christopher says:

                I know what you DON’T do. You don’t hang out with Yemeni terrorists. You don’t stay in a country that is becoming synonymous with terror. And you certainly don’t publish a website and magazine about engaging in jihad against the US. Indeed, he certainly did not act like a person who didn’t want to get hit by a Predator.

                So your argument is that a person who innocent of a crime but is accused of one by a country they openly loathe, and then has several assassination attempts carried out against him by that country would, of course, submit himself to a trial tut suite.

                If it was the Nazis or the Soviets or the Iranians would you really be making that same argument? Seriously?

                Yeah, you may think it’s obvious that the US Justice system works really well, but Al-Awlaki didn’t think so. This is not a crime worthy of death. Neither, in fact, is fleeing the police.

                The fact that there is a conceivable way for somebody to avoid a nasty fate does not make that fate just. A slave could have avoided bounty hunters by simply remaining a slave. People could escape the hollywood blacklist by naming names. If you give that mugger your wallet he won’t shoot you in this back alley.

      • mpowell says:

        I’m not sure how much this really matters, but I do wonder what would have happened if he attempted to turn himself in at a foreign embassy. I don’t think he would have been allowed to turn himself in at the US embassy, though. That’s silly. It would have gotten him shot, I’m pretty sure of that.

        • B-Rob says:

          I sincerely doubt this. The US did not shoot the Undie Bomber after he tried to bomb a plane on al Awlaki’s orders, or the Lackawanna jihadists, or Mir Amal Khansi, or Khalid Sheihk Mohammed, or the Times Square bomber, or the Denver plotter, or any of the other people who are at Gitmo (who were captured at gunpoint) or associated with the Cole.

          So why would this one guy who shows up with a US passport identifying him as a wanted man, get shot, when he has done FAR LESS than KSM? Past experience under the Obama administration says that he would be arrested, put on a swift plane to the US, held in a federal jail and probably indicted in Virginia (the usual venue), Detroit (where the Undie Bomber was captured) NYC (Times Square bomber), or perhaps Texas (where Fort Hood occurred).

          • DocAmazing says:

            So why blow him up?

            • B-Rob says:

              Because (a) unlike all the other people, he was not in a country that was able to capture him (i.e., Pakistan and the US for all the others); (b) unlike the Undie Bomber, for example, he was not docile and cooperative.

              But I think made my point — past history under Clinton, Bush and Obama show that he would not have been summarily shot if he was in US custody on US soil, and especially at a US embassy.

              • DocAmazing says:

                He was also no greater an immediate threat than the others.

                And, as the Wikipedia article mentioned, he had been in a Yemeni prison in 2007–and we apparently had no objections to his being let go.

                Somebody else captured him for us, and we weren’t interested.

                Hmmmm.

      • dave says:

        Its utterly ridiculous to believe that Al-Alwaki “could have turned himself in”:

        1. He wasn’t even indicted. You don’t turn yourself in without even being charged with a crime.

        2. The idea that the government would have allowed him a fair trial is ridiculous on its face. The US has spent the last ten years suing every procedural and legalistic means available, up to and including the redefinition of basic legal terms (“torture”), the creation of wholly invented categories of persons (“enemy combatants”) and the employment of every sophistry conceivable to avoid trying any terrorism suspects.

        3. The fact that US Government opposed his father’s attempt to obtain a trial further underscores #2.

        4. Even if he actually did obtain a fair trial, the outcome of that trial would never be honored by the US govenrment. Al-Alwaki would never see the outside of a jail cell even if he was fully acquitted by a jury of 9-11 survivors.

        5. Al-Alwaki was likely to face extreme torture and other forms of humiliating and degrading treatment while imprisoned awaiting trial. (see Bradley Manning, Jose Padilla, etc.)

        Now that I think about it, its seems to me that our insane, unconstitutional overreaction to 9-11 pretty much created the conditions which now “require” us to assassinate our own citizens. Because of all the other bad shit we do, we pretty much guarantee that anyone we accuse of terrorism will never feel safe to turn themselves in and fight the charges since doing so amounts to putting yourself at the mercy of a star chamber and ensuring a 100% chance of the ending up in prison for ever and probably tortured regardless of the facts.

        In one of my undergrad pre-law classes (2002) we read Kafka’s, The Trial. Even then, just one year after 9-11, I thought that the plot was horrifying but that it could never happen here. Apparently, at the exact same time, govenrment officials were working hard to make it happen.

        • joe from Lowell says:

          The idea that the government would have allowed him a fair trial is ridiculous on its face. The US has spent the last ten years suing every procedural and legalistic means available, up to and including the redefinition of basic legal terms (“torture”), the creation of wholly invented categories of persons (“enemy combatants”) and the employment of every sophistry conceivable to avoid trying any terrorism suspects.

          This is a flat-out falsehood, as applied to the last three years. Every single terrorism suspect – every. single. one. – that the government has gotten its hands on has been arrested by the FBI, held in the federal prison system, tried in front of a federal judge, and enjoyed 100% of the constitutional protections for criminal defendants in the civilian courts.

          It’s frustrating when people who purport to care about such things don’t findthis worth acknowledging, or even noticing

    • Katya says:

      He should turn himself in to a government that has just announced that it intends to assassinate him, so that what? That government can lock him up for the rest of his life without trial? What possible reason could he have to believe that the US would provide him a trial, let alone anything like a fair one?

  10. Glenn says:

    I loved Holder’s sneering about the President not having to “get permission” from a federal judge. Interesting way to describe the judicial process.

    • Steve LaBonne says:

      Of course, a big part of the problem is that nowadays there are precious few Federal judges who would even dream of trying to interfere.

    • timb says:

      Like Steve said below…the one thing Federal judges will not do is intervene in one of these cases. Gotta a crack head who alleges he wasn’t Mirandized prior to his confession, Federal judges are all over it. Have a President who wants to kill someone and a Federal judge ignores it.

      PS The preceding should not be read to imply that I think the former is not important….just less important

  11. B-Rob says:

    To those who think we should not be “targeting” terrorists abroad — if someone has fallen in and cast their lot with a group of individuals waging active war on the US, I don’t see how we cannot target them the same way we target any other individual in that group. If 10 terrorists are in a tent and one is al Shabab leader Omar Hammami (native of Alabama) and the tent is a target for an airstrike, would you have the strike be called off because Hammami is in the tent? If not, how is it any different if Hammami is in a truck with three people or riding alone on a motorcycle. The question is (a) whether Hammami is engaged in terrorism against the US and (b) is out of reach of normal judicial process. If both are substantiated, I don’t see why you don’t take him out.

    Seems to me the question is one of abuse — a president using this rationale to take out mere drug dealers or even political rivals. Perhaps we need to establish some mechanism for the FISA court to review targetings before hand (if possible) and raise any questions about the evidence supporting the determination. In addition, should a person challenge their targeting or the death of a loved one, the FISA court could be empowered to consider a Section 1983 civil rights action, with no “state secrets” shield against discovery before that court.

  12. BradP says:

    As this is an oasis of common ground here, I would like to get a little deeper into the opinions on this.

    What are the proposed alternatives to what Holder has laid out?

    • B-Rob says:

      It gets awful silent when you ask that question . . . easy to gnash teeth about how Obama is messing this up, but few answers that make more sense than what approach he took. You don’t want to risk a Black Hawk Down situation in Yemen by sending in the cavalry to try and capture al Awlaki, and you don’t send him a stern letter. So what do you do if you are not going to just sit there and let him send bomber after bomber to the US? Even better, if he is in a tent with the Yemeni bombmaker, do you NOT take out the tent for fear of hurting the American?

      I hear no answers or even an attempt to answer these simple questions. Which is why I say Obama’s approach may not be wonderful, but it is the only one we got.

      • DocAmazing says:

        How about some proof that he’s the one sending the bombers?

        • B-Rob says:

          Why don’t you answer my question instead of raising more questions?

          You don’t like the Obama approach. Fine. So what would you have done after the Undie Bomber identifies al Awlaki as the commander responsible for his bombing mission?

          • DocAmazing says:

            The Undie Bomber was a nut, and ineffective. If you’re willing to throw the Constitution on the campfire to protect us all against the threat of random loons with guncotton briefs, I’d say your priorities are way out of whack and that you need to read less Tom Clancy.

            • B-Rob says:

              Again, President Doc, you have not answered my question. Why do you keep ducking it?

              Omar Hammami is in a tent in lawless Somalia with nine other members of al Shabab. He is from ‘Bama and is waging war against the US, via terrorism, and recruiting Muslim youth in the US. You know what he has done and you know where he is.

              What would you do?

              • Steve LaBonne says:

                Objection- assumes facts not in evidence.

                • B-Rob says:

                  You are not in court, Steve. You are in the Oval Office. So what do you do?

                  If your answer is “nothing”, then that is an answer. If your answer is “Seal Team 6 to arrest him”, that is an answer (Ron Paul approach). If you say “Bomb it and alert the Hammami family in ‘Bama” (my approach), that is an answer. But people here who don’t like the Obama approach seem awful hard to pin down on how they think it should be handled.

                • Steve LaBonne says:

                  Made-up bullshit is still made-up bullshit in any forum. Establish your premises before you have any business demanding that people answer “arguments” based on them.

                • B-Rob says:

                  You are just ducking. I get it. It is what every other Obama critic has done, too.

                • Steve LaBonne says:

                  Anybody who would make life and death decisions in a vacuum without the most reliable possible information is an intellectual and moral idiot. Especially when it involves a guy who by your own fairy tale is in no position to be an imminent threat. And who in any case is a law enforcement issue and not a legitimate belligerent.

              • DocAmazing says:

                First, I’d ask you to change your underwear. Second, since we know where he is and what he’s done, we know how he operates. We can intercept his associates as they come through and gain more intelligence from them about how his organization operates. We continue to monitor and interdict, and when Omar Hammami places himself in any position to be captured, we do so. Additionally, we have the simple expedient of spreading flyers around Somalia offering ten grand for Hammami’s capture–in a nation of armed hungry people, quite a few will be happy to mount our operation for us.

                What we do not do: burn the Constitution.

        • rea says:

          Jeez, Doc, go read the wikipedia article on the guy.

          • DocAmazing says:

            Quite an article. I stopped counting the use of the word “alleged” after twenty iterations. I did, however, note this:

            After 18 months in a Yemeni prison, he was released on December 12, 2007, following the intercession of his tribe, an indication by the U.S. that it did not insist on his incarceration, and—according to a Yemeni security official—because he said he repented.

            In other words, he had already been captured, and we weren’t any too interested. Hmmm.

            I missed the part where his teenaged son was also the Arab Fu Manchu, but i might just have skimmed too quickly.

        • Ben says:

          As Lana from Archer says: “YUUHP”

          We regulate all kinds of executive actions in the War on Terror through having to present evidence to an impartial adjudicator. We want warrants for the massive intelligence operation, we want terrorists to be tried in court (and, even granting the Administration deference in their argument that military courts/tribunals are sometimes necessary, even those cases are tried in front of a theoretically impartial authority).

          The decision to designate which groups are Al Qaeda, which are the senior leaders, which are involved in active plots, etc. is much more important and potentially abusive than eg intelligence gathering. Yet we demand warrants for the intelligence gathering and not for the designation of which American citizens we can kill with impunity?

          Keep a list, show it to a judge or panel of judges, justify it, update it every 30 days or so. ‘snot perfect but goes a long way toward stopping potential abuse.

        • DrDick says:

          How about pressing formal charges and holding a trial (at least a bench trial before a judge)in absentia (if necessary).

      • DocAmazing says:

        And “bomber after bomber”? How many bombs have we been hit with?

        • B-Rob says:

          We had the undie bomber and the UPS bombs, off the top of my head. In addition, the Times Square bomber was inspired by al Awlaki, as was the Fort Hood shooter. This guy had his hands in many pies.

          • DocAmazing says:

            “Inspired by”?

            Reeeaching…

            • B-Rob says:

              Look . . . he counseled INDIVIDUAL MUSLIMS, in one on one sessions, why and how to attack the United States. He was wit a group that calls itself “al Qaeda in the Arabian Peninsula”, not “the Sanaa chapter of the Boy Scouts of America.” He was in a terrorist group and managed it. So he is a bad example of government excess, if you ask me.

              Note — I am not unsympathetic to the Ron Paul view that the US should not summarily kill citizens. There is too much history of governmental abuse to ignore the risk. Cf. Fred Hampton and the Black Panthers. But at the same time, in a day an age where, unlike in the 1960s, people can travel across the world in a day, and given the stated nature of al Qaeda, its past successes against the US (the Cole, the African embassy bombings, 9/11), no one can tell me that killing al Awlaki while he is hanging out with OTHER ANTI-US JIHADIST TERRORISTS (a key fact, for me) is a “bad” thing.

              There may come a time where the government oversteps. We have a mechanism for that — a section 1983 action for wrongful death (Garner v. Tennessee comes to mind); legislation to set groundrules for future sanctions of thos kind; even electing a new president, like Ron Paul, who will not take the approach Obama has would effect a change in policy and practice. But the inability of Obama critics to articulate a BETTER approach to this specific situation speaks volumes.

              • Steve LaBonne says:

                Because using LOTS OF CAPITAL LETTERS always improves a dumb argument.

              • DocAmazing says:

                I am not unsympathetic to the Ron Paul view that the US should not summarily kill citizens.

                Gee, that’s mighty liberal of you.

                But at the same time, in a day an age where, unlike in the 1960s, people can travel across the world in a day

                Um, they had jet travel in the ’60s. Very popular. Much like today, but without the cattle lines.

                electing a new president, like Ron Paul

                Did you really just say that?

                the inability of Obama critics to articulate a BETTER approach to this specific situation

                Actually, there have been several on this thread, including “slow down and wait him out”. Seems you’re not listening.

      • BradP says:

        I hear no answers or even an attempt to answer these simple questions. Which is why I say Obama’s approach may not be wonderful, but it is the only one we got.

        That’s not quite what I’m asking.

        To be clear, a little background on why I’m asking the question:

        I am a regular on here who is a libertarian that usually just shows up and screams “the government is gonna screw it up!” That’s a libertarian mantra: be it from the insufficient data and capabilities, or be it from myopic selfishness, libertarians take a very rigid position on the role of government and prefers that it simply not govern.

        Liberals tend to follow along libertarian lines to a degree, but differ in their preference for increasing the nuance and complexity of government when confronted with certain perverse incentives and inefficiencies.

        For an example, both liberals and libertarians are likely to agree with some concept of foreign policy blowback. However, where Ron Paul will bring it up as evidence of the preferability of non-interventionism, liberals would use it as evidence for wiser foreign policy.

        So getting back to this, it doesn’t seem like too many think the criteria itself to be unreasonable, they would just like to see some sort of legislation to prevent executive abuse.

        I’d kinda like to know how the oversight would work, and their are just the sort of polysci/legal minds here to provide an idea for me.

        • Bruce Baugh says:

          Just to interject: Nobody who endorses letters of marque is in favor of non-intervention. They just regard Blackwater/Xe/Academi as better at carrying out the US national interest with regard to shooting designated foreigners than the regular armed services.

    • Katya says:

      Proposed alternative: Judicial review. It works for FISA, don’t see why it wouldn’t work here.

      • BradP says:

        Correct me if I’m wrong, but when Bush went around it, not only did he not face any consequences, but our legislative houses rushed to amend FISA to make is so he didn’t really need a legal work around?

      • Furious Jorge says:

        Does it work for FISA, though?

        Serious question. I’ve read that it’s pretty much a rubber stamp court, which implies that what it’s best at is giving the appearance of legitimacy more than anything else.

        • Katya says:

          Hard to say. It’s possible that FISA applicants have their stuff in order before applying to the court, so that requests are rarely turned down. It’s possible that the courts defer to the executive more than they should. But it is a court made up of Article III judges who have life tenure and are independent of the executive branch, so it’s certainly better than nothing. And of course, it depends on Congress not watering down the statutes and procedures. Still, I think that independent judicial review is a good idea, even if it requires good execution to be effective.

  13. jim says:

    What’s doing the work here is not the language of “imminent threat” it’s “laws of war”. There’s a lot of stuff that can be done under color of war. During a war, many more activities can be seen as “imminent threats” than during peacetime.

    It should be noted that the US Government does not use the AUMF as its justification for regarding the US as at war with Al Qaeda. Officially, we have been at war with Al Qaeda since 1996, when bin Laden issued a fatwa that is (now) considered tantamount to a declaration of war. That Al Qaeda is not a state actor doesn’t apparently prevent it from having declared war. So withdrawal from Afghanistan or Iraq doesn’t end that state of war. Neither would repeal of the AUMF.

    • Chuchundra says:

      In fact, Clinton had a Capture/Kill order out for Bin Laden and there were at least two attempts made to carry it out, one with cruise missiles. This was all prior to 9/11 and without the cover of an official AUMF from Congress.

      The idea that this is some new expansion of the security state, something that Obama and Holder cooked up recently, is just wrong.

      • mpowell says:

        This argument rests on the assumption that the executive functions based on strict principles of law. So going after Bin Laden is effectively the same thing as going after al-Awlaki. But it’s not the same thing at all. This never would have happened sans 9/11 and no president would have tried to justify it.

  14. dave says:

    Its the elastic “Imminent threat” language that makes this policy intolerable and thatalso allows there to be majority support for the policy.

    It is clear to me that the govenrment defines “imminent” extremely broadly to the point that it loses all meaning. I reject the assassination policy out of hand because it contains basically unlimited “potential for abuse” as B-Rob put it.

    People inclined to support this policy, however, argue in its favor by talking about “ticking time bombs” and “engaging in terrorism”, as B-Rob put it, which suggest actual imminent threats.

    In my opinion, the US should only be permitted to target its own citizens who are “operationally involved” in a specific terror plot which is actually imminenet (i.e. months not years away).

    I also think that any US citizen should be able to sue the government and the government should be obliged to prove to a judge that the targeted killing of a US citizens based on “imminent threat” was actually justified.

    All other US citizens accused of terrorist activities (i.e. planning, supporting, joining, overseeing, etc.) should be indicted and tried (in absentia if necessary) and proven guilty beyond a reasonable doubt. At that point, if they fail to turn themselves in and the government proves to a judge that they continued to participate in terrorist activities (even passive ones) then they would be subject to targeted killing.

    That’s just my hastily thought out idea.

    • B-Rob says:

      “In my opinion, the US should only be permitted to target its own citizens who are “operationally involved” in a specific terror plot which is actually imminenet (i.e. months not years away).”

      What if they have already done terrorist acts and are just working on a new one, as was the case with al Awlaki and is the case with Omar Hammami?

      How does a trial in absentia stop a terrorist? And as I keep mentioning, if Omar Hammami, a US citizen, is in a tent with nine terrorists and you would otherwise bomb the tent, are you saying we should NOT bomb the tent? If so, you are sorta creating an incentive for other terrorists to always hang out with Omar, since the US never strikes if Omar is around . . . .

      • Ben says:

        What if they have already done terrorist acts and are just working on a new one, as was the case with al Awlaki and is the case with Omar Hammami?

        How does a trial in absentia stop a terrorist?

        It doesn’t. It stops us from having unchecked executive authority to determine which US citizens no longer have constitutional protection. That kind of thing shouldn’t be left up to operational necessity, because it’s kind of a bedrock principle and the scale for potential abuse is almost incalculable.

        Plus, if it’s so obvious that these American citizens have committed and are actively trying to commit lethal harm against the US, it shouldn’t be too hard to justify it in front of an impartial authority.

        • Ben says:

          And I just re-read your FISA court comment above. You seem to be arguing at cross-purposes here, and I don’t really get how the questions posed in your comment here aren’t answered by your FISA court comment above.

        • B-Rob says:

          So Omar Hammami is in a tent with nine Somali terrorists. Normally the US would use a Predator to take the tent out.

          But what would you do, Mr. President?

          • Bill Murray says:

            who decided and how was it decided that they were terrorists, what is their imminent threat to the US?

            In any case I would change the drone target to a group that supports this rule, because supporting this sort of rule is tantamount to terrorism against the US people and their Constitution

            • B-Rob says:

              You are the first one to actually answer the question instead of challenge the premise, ask other questions, etc.

              I don’t agree with you but you at least you stayed on the subject and made sense.

              • dave says:

                I answered the question. The US Government alleges that Hammami is a terrorist. They should prove it. If they prove it and secure a conviction then he has the option of turning himself in. If he doesn’t he is subject to being collateral damage in any operations we have against non-American terrorists. In the meantime, effort should be made to capture him and imprison him. If he takes part in an attempt to attack the US he is subject to assassination as soon as that attack is operational and imminent.

                This isn’t hard.

                Your question assumes there is some emergency that requires we “take out” Hammami the moment we locate him. That assumption is false.

                • Furious Jorge says:

                  I answered the question.

                  Yes, but your answer contained far too much nuance for a Paulista to grasp. Therefore, it doesn’t count.

              • Murc says:

                You are the first one to actually answer the question instead of challenge the premise, ask other questions, etc.

                B-Rob, when did you stop beating your wife?

                Remember, if you challenge the premise here or ask other questions, you’re either going off-topic or not making sense!

    • Dave says:

      Just for the record, that wasn’t me. I think this is all fecking insane, and if the USA arrogates to itself the right to do these kind of things, then Iran has exactly the same right to blow up anyone it likes anywhere in the world for any flimsy reason it cares to invent. And so does Syria, and so does Russia, and China, and fecking Luxembourg, if they feel like it. Jesus fecking Christ. American exceptionalism, just say no.

      • Holden Pattern says:

        Remember, what is done is not good or right according to the act, but according to the actor. This is true both internationally and domestically.

  15. Bruce Baugh says:

    I’ve been wondering.

    Given that the US provided substantial aid to the Taliban (or its predecessors), in what sense is the US government not associated with Al Qaeda and therefore the White House, Congress, Pentagon, etc, not legitimate targets?

    • joe from Lowell says:

      In the sense of numerous intervening years and a complete change in the relationship.

      Congress didn’t invoke its war powers against anyone who had ever been affiliated with anyone who had ever been affiliated with anyone now in al Qaeda.

  16. joe from Lowell says:

    Discussing this question without taking into the account the different legal situation produced by the legal existence of a state of war is pointless.

    Of course that level of executive discretion is unacceptable under civilian law, but it’s exactly par for the course under the laws of war. It’s actually supposed to be a conservative straw man to say that you need to hold a trial before the judicial branch in order to get clearing to fire on the enemy in war time – and that includes determining whether an overseas target is an enemy target.

    • Murc says:

      Discussing this question without taking into the account the different legal situation produced by the legal existence of a state of war is pointless.

      Unless you take the stance, as I and many others do, that to declare we’re in an endless war against a stateless enemy and the entire world is a battlefield is to make a mockery of the entire concept of ‘legal existence of a state of war.’

      It’s actually supposed to be a conservative straw man to say that you need to hold a trial before the judicial branch in order to get clearing to fire on the enemy in war time – and that includes determining whether an overseas target is an enemy target.

      Let’s be very clear here, joe. I content that REGARDLESS OF THE LEGALITY, the Executive Branch of the United States government declaring that criminals have the same status as soldiers and that they may, subject to no review or oversight, may attack and kill them anywhere they like, is both morally wrong and bad policy. Do you disagree with this? If so, I’ll be happy to have that argument.

  17. bfrjcsumxf On the Holder Speech – Lawyers, Guns & Money : Lawyers, Guns & Money bfrjcsumxf bfrjcsumxf bfrjcsumxf

Leave a Reply

You must be logged in to post a comment.