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The Arbitrary Executive, New Occupant

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Jo Becker and Scott Shane’s extensive, extremely useful analysis is not entirely without flaws. There’s a strange bit of Green Laternism where Becker and Shane talk about how Holder and Hillary Clinton wanted to lobby Congress but Obama shut them down — with the implication that this might have made a difference — which is pretty silly. I’d listen to counterfactuals it if the bill passed by a vote or two, but the vote was 90-6; the idea that Clinton and Holder using the BULLY PULPIT could have shifted 54 votes is so implausible as to be self-refuting. The subsequent reference to LBJ is also utterly inapposite; giving in on issues where you have no chance of winning to advance other legislative priorities where you might actually have the votes was page 1 in LBJ’s playbook. When evaluating the arbitrary executive, it’s important not to forget that this is how Congress wants it.

It’s also unnecessary, because the article is plenty damning without the Gitmo overreach. Glenn has already highlighted a key takeaway, in which “militant” is given an absurdly broad definition to minimize civilian casualties. (Which, of course, should remind is of Daniel Davies’s dictum that “[g]ood ideas do not need lots of lies told about them in order to gain public acceptance.”) But this is just one example; in many different respects the article is a classic example of the dangers of arbitrary executive power. Every president is convinced that he can be trusted to handle it; and even if a president is more judicious than his predecessor this is almost certainly wrong:

What the new president did not say was that the orders contained a few subtle loopholes. They reflected a still unfamiliar Barack Obama, a realist who, unlike some of his fervent supporters, was never carried away by his own rhetoric. Instead, he was already putting his lawyerly mind to carving out the maximum amount of maneuvering room to fight terrorism as he saw fit.

After a while, the arbitrary executive will stop even bothering to weep before he eats the oysters.

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  • R Johnston
  • Ugh

    “His guidance was formalized in a memo by General Jones, who called it a ‘governor, if you will, on the throttle,’ intended to remind everyone that ‘one should not assume that it’s just O.K. to do these things because we spot a bad guy somewhere in the world.'”

    Except that it is, apparently.

  • Warren Terra

    Minor quibble:

    but it the vote 90-6; the idea that Clinton and Holder using the BULLY PULPIT could have shifted 54 votes is so implausible as to be self-refuting

    You mean 24 votes, not 54. There are also a couple of grammatical errors in the passage that doubtless resulted from hasty writing and in no way impede understanding.

    • Warren Terra

      Never mind; I shouldn’t really comment when I haven’t slept in a day and a half.

    • david mizner

      I would’ve voted against it myself, as Obama simply wanted to transfer the Gitmo system of injustice northward. That’s why Feingold voted against it. Obama could’ve closed Gitmo had he been willing to release the people the U.S. is detaining indefinitely and given the rest trials. There was a window when he could’ve transferred all the Gitmo detainees to the U.S. for federal trials, as he did for Ghailani.

      Admittedly, this would’ve been a very bold political act, but it’s not strictly accurate to say Congress is what stopped him from shutting down Gitmo.

      • It would have been bold, and it would have required a belief in justice, human rights, and the primacy of law.

        But Mitt Romney has a Swiss bank account!

        • Warren Terra

          Oh, good, the stormtrooper is back.

          • Huh?

            • elm

              Is it possible you don’t know the provenance of your screen name?

      • Warren Terra

        For “very bold political act” read “prelude to impeachment”. Obama proposed to try KSM in a civilian court on the mainland, and got his head utterly handed to him, with no meaningful support in sight. Obama tried to release five Uighurs in Gitmo for no reason other than a dumb rewards program, and it took a year of wingers during ehich the wingers screamed about him appeasing terrorists, again with no meaningful support in sight.

        I honestly don’t know what can be done about the Gitmo detainees; many we’ve got no usable evidence against may ave actually been terrorists, while others may have become terrorists since we stole their lives for a decade. Releasing members of either category is political suicide, not courage, and perhaps even the wrong thing to do. Holding them untried is also wrong. I don’t see a good solution; I suspect there isn’t one.

        The one thing I think we can all agree on is that it was a grievous error not to prosecute Dubya’s torturers and prison officials who crafted this dilemma for the next President to handle.

        • david mizner

          Well, not it’s even tougher now because there’s a ban on transfers to the U.S. for trials, so even if he wanted to shut down Gitmo, he would have use to bullshit, unconstitutional military commissions. But the ban is temporary, so probably the least bad thing would be to put a halt to the military commissions, including the ones for KSM and his 4 co-conspirators, and fight against a renewal of the ban, but this would require a viewpoint and commitment to human rights that have been nowhere in evidence.

          In any case, the Green Latern debate aside, there was no real commitment from the White House to give KSM a fair trial (aside from Holder, who clearly wanted to do so). Confronted with opposition in New York and in Congres, the WH (Rahm, especially) went scrambling to backtrack, despite the claim that this was the AG’s decision (a claim you sometimes still hear.)

        • mark f

          Releasing members of either category is political suicide, not courage, and perhaps even the wrong thing to do. Holding them untried is also wrong. I don’t see a good solution; I suspect there isn’t one.

          The one thing I think we can all agree on is that it was a grievous error not to prosecute Dubya’s torturers and prison officials who crafted this dilemma for the next President to handle.

          Certainly if that first part is true of releasing anonymous prisoners back into freedom halfway across the world, it’s also true of prosecuting high-ranking members of the president’s opposition party? Even despite what may be the absolute propriety of either move?

          • Colin Day

            Next you’ll tell me that Republicans went after Clinton for committing perjury over a blow job.

            Wait, that actually happened?

      • Joe

        The families, press and lawyers probably don’t agree that some federal prison in Illinois is no different than some isolated place in the middle of the West Indes.

        What is he going to use to PAY for the trials, btw? It’s so easy to rail against him w/o actually dealing with the hard questions, perhaps.

        • joe from Lowell

          The families, press and lawyers probably don’t agree that some federal prison in Illinois is no different than some isolated place in the middle of the West Indes.

          Prior to Barack Obama actually trying to make that happen, neither did awesome internet progressives.

          At which point “Close Guantanamo” suddenly ceased to be meant literally, and became a metaphor for blah blah blah.

      • Ed

        Admittedly, this would’ve been a very bold political act, but it’s not strictly accurate to say Congress is what stopped him from shutting down Gitmo.

        Yes. I thought the takeaway points were that Gitmo took a back seat to other considerations, including health care, and the Administration made its own missteps. You can argue post facto that it was never going to happen, but we’ll never really know. Obviously reasonable people in the Administration thought it could be done or at least fought for.

        • Scott Lemieux

          thought it could be done or at least fought for.

          The second is, I suppose, true; the first transparently false. If Clinton actually believed that shit, which I doubt, she learned nothing from her husband’s health care debacle (which wasn’t nearly the no-hoper trying to flip 54 votes with no leverage and no domestic constituency would be.) So, in other words, you think that the administration should have engaged in a pointless fight that 1)would have had no chance of succeeding and 2)undermined parts of the domestic agenda that actually could pass. If LBJ thought that way his domestic agenda would have gone the way of JFK’s.

      • Socraticsilence

        Very Bold in the way say arbitrarily legalizng all banned substances would be bold- you know in that it would be utter political suicide and would’ve essentially ended his presidency.

  • Incontinentia Buttocks

    The idea that Holder and Clinton could have switched 54 votes through lobbying seems massively unlikely to me, too.

    But how is the belief that they could have an example of belief in the BULL PULPIT, which I had thought meant the ability of the President to move public opinion through speech, not the ability of subordinate members of the administration to change congressional votes through lobbying?

    Also: is your disagreement here about the level of Senate opposition (which, as I’ve already said, seems fair enough to me) or about the very notion of lobbying Congress?

    • Incontinentia Buttocks

      BULLY* (obviously)

    • Scott Lemieux

      Well, I use the BULLY PULPIT here because it’s not like Clinton or Holder had any leverage; the idea seemed to be that just “fighting” would be enough. I agree that it’s not precisely the bully pulpit per se. Only on a very, very low-priority issue would mere lobbying by members of the cabinet influence votes.

      • Yeah, if you’re not sure you can win, it’s alright to not even try. If my doctor told me I had cancer and he wasn’t sure he could cure it so I should leave immediately, that would be fine. Captain Sullenberger should have said “I’m not certain I can land this plane, so let’s all commit suicide.”

        And Hillary Clinton is just another cabinet member. She has no pull or influence upon the American public. No one cares what she has to say.

        • Murc

          Well, you know, I’m open to persuasion on this one.

          Walk me through how the Administration gets to a majority voting to close Gitmo. Lists of Senators are readily available; give me your list of possible flips and how that could’ve been done.

        • Scott Lemieux

          And Hillary Clinton is just another cabinet member. She has no pull or influence upon the American public. No one cares what she has to say.

          Just to be clear, your position is that the Secretary of State could make the closing of Gitmo so popular that it would flip 54 votes, when no president has ever done anything remotely like that. Or are you saying that Hillary Clinton is a beloved figure among conservative Democrats and Republicans and they would change votes at political risk just to please her? Either way, this is the kind of sophistication about American politics that leads you to the conclusion that there’s nothing much to choose between Obama and a guy who wants to restore the Articles of Confederation.

          And, of course, if you’re serious about “trying” — which means using actual leverage — there are real opportunity costs involved. Once used, some inducements and threats can’t be used again.

  • david mizner

    My primary arguments against Obama’s targeted killing policy are moral and strategic (wrong; stupid), but this is the best evidence yet that this policy — kill people based on where they are and how they “behave” — is illegal. It’s always been hard to make an airtight case because the Obama admin keep hey details secret (for that very reason), but it’s increasingly clear that this policy violates the core principle of international law — the distinction between civilians and combatants.

    • david mizner

      A core principal, not the.

      • Colin Day

        A core principle. Core principals are what Romney has stashed in Switzerland and the Cayman Islands.

    • Richard

      I dont understand your conclusion. International law has never condemned or made illegal military actions that put noncombatants at risk. In fact, all military operations do so, especially since nations abandoned set piece fights between opposing armies. You have to try to reduce the possibility of noncombatant deaths but all aerial bombings, long distance shellings, use of mortars,use of machine guns – in fact, almost every tactic of modern warfare – puts noncombatants at risk. International law simply doesn’t prohibit aerial bombings, long distance shelling or drone flights even if you think that these tactics are wrong.

      • david mizner

        You’re mixing up two different issues — the risk to civilians and whom you target.

        On the first issue, the targeted killing MIGHT violate international law, according to which proportionality is key.

        On the second issue, the salient point isn’t that the administration is putting civilians at risk but is illegally expanding the definition of who can be targeted.

        • david mizner

          In other words, the fact that the U.S. kills certain civilians doesn’t by itself mean the U.S. has violated the law. The fact that the U.S. targets certain civilians (people it has good reason to believe are civilians) probably does. Gotta love the law.

          • Richard

            I understand your point now. However, I think that question then becomes whether an avowed member of al-Queda is a civilian. In other words, can you target for killing a member of a non-governmental group that professes it is at war with you and has taken military (or terrorist if you prefer that term) actions against you but doesn’t meet the traditional definition of a government or of an army. I think you can (although certainly believe that such targetings need to be limited as the article indicates is being done).

            • timb

              You would think there’s a way to answer that question without killing them based on a hunch

        • joe from Lowell

          On the second issue, the salient point isn’t that the administration is putting civilians at risk but is illegally expanding the definition of who can be targeted.

          I assume you’re talking about this:

          Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

          This isn’t about targeting at all, but about how to classify people after strikes when people who were not the targets are killed.

          • RepubAnon

            So, what if the Syrians decide to classify anyone living in certain areas as “terrorists” and start lobbing artillery rounds at them instead of Hellfire missiles from drones?

            • joe from Lowell

              That, too, would be an issue about targeting, and have no relevance to the question of how to classify people killed in strikes who were not the targets.

              • david mizner

                If a male of a certain area is in a certain area, he is a combatant, and if someone is a combatant, he can be targeted.

                • joe from Lowell

                  That may be your opinion, but there is nothing in the article that indicates that it is the administration’s opinion.

                  You misread the except (or, more likely, unquestioningly accepted someone else’s misreading). Hey, it happens. It happens to all of us!

                  You should just say, “Oh, gotcha, I read that wrong,” or maybe just let the subject drop, instead of casting about for a reason to pretend you didn’t.

                • Furious Jorge

                  That may be your opinion, but there is nothing in the article that indicates that it is the administration’s opinion.

                  Except for this:

                  It is also because Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

                  In fairness, it is on page 3.

                • elm

                  I take Joe’s point to be that the administration policy is that after a strike happens, you count all men of a certain age as combatants and not, as David claims, that the administration is saying you can target any man of a certain age legitimately because they are combatants.

                  I don’t know enough to know who’s right, but the portion you cited (which is the same portion Joe cited above) doesn’t demonstrate David’s point.

                • joe from Lowell

                  Jorge,

                  Why did you just quote a section that explicitly proves my point – that the selected passage has nothing to do with targeting, but is about classifying people killed in a strike who weren’t the targets – as if it was a refutation of that point?

                  Why are so many people having difficulty with this? This is a very obvious, easily-understood distinction, and the language in the article could not be clearer.

                • mark f

                  the selected passage has nothing to do with targeting, but is about classifying people killed in a strike who weren’t the targets

                  Seems mobius strippy.

                • joe from Lowell

                  …except that a mobius strip leads back to itself, while – once again – the classification of casualties after a strike has no relationship to the targeting of strikes.

                • mark f

                  Oh, come on. I’m a lot closer to you on this topic than I am to Mizner, but it’s either naive or an appeal to naivete to suggest that the potential impact on casualty statistics doesn’t figure in the debates about where to strike.

                • joe from Lowell

                  I see what you’re getting at now – not the doctrine of target selection, but factors influencing actors as they apply that doctrine.

                  I was just discussing the doctrine, in all of my commentary on this topic.

                • mark f

                  Fair enough. “This policy could be bad because of X” doesn’t necessarily mean that “X” is actually happening. And Mizner’s tendency to assume the worst at all times does need correcting.

          • david mizner

            It’s unclear at this point whether he deems those people combatants only after the fact, or regards them as such before as well. In any case, Obama has expanded the definition of who can be targeted past the point of what the law allows. Signature strikes for example, which target people based on “patterns of behavior.” And consider this international law decimation of Brennan’s speech:

            Brennan’s says that “(i)n this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.” The use of the WW II analogy is not new, but Brennan’s sweeping and incorrect claim of who is targetable under international law is something deeply troubling that I don’t think has quite so starkly appeared in previous official U.S. apologia for targeted killings, whether by Koh, Brennan, Johnson or Holder.

            The analogy between al Qaida or associated forces, on one hand, and German and Japanese commanders during WW II, on the other, is flawed. German and Japanese commanders in WW II were targetable because they were members of the armed forces of the enemy. It is far from clear, however, that “individuals who are part of al-Qa’ida or its associated forces” are members of “enemy armed forces.” First, al-Qaeda today is not the al-Qaeda of 9/11, and the 2001 Authorization for Use of Military Force specifically limited military force to those who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. Even assuming arguendo that they are, those being targeted might have no role in hostilities against the U.S., they might have no role in hostilities at all against anyone, or they may have undertaken some hostile acts but no longer do so. The law of armed conflict does not limit targeting to enemy armed forces, but it does prohibit targeting others unless, and only so long as, they are directly participating in hostilities or otherwise perform a continuous combat function. In other words, while members of the armed forces are targetable due to their status, any other targeting powers derive from the individual’s conduct, not his or her status. Brennan lumps all these people into one targetable category – a clear misapplication of international humanitarian law that offends the most fundamental principle of that law: the principle of distinction between combatants and civilians.

            http://opiniojuris.org/2012/05/02/thoughts-on-brennans-speech/

            • joe from Lowell

              It’s unclear at this point whether he deems those people combatants only after the fact, or regards them as such before as well.

              No, it’s not. The section is entirely about counting people they did not know were there when they launched the strike. The article is quite explicit about the topic of that section.

            • joe from Lowell

              Signature strikes for example, which target people based on “patterns of behavior.”

              You are again misstating the facts. Signature strikes do not target people based on their patterns of behavior, but locations. From the article:

              In Pakistan, Mr. Obama had approved not only “personality” strikes aimed at named, high-value terrorists, but “signature” strikes that targeted training camps and suspicious compounds in areas controlled by militants.

              I can see how the word “behavior” is misleading – it seems to suggest that they are identifying a person as a terrorist/combatant based on his “behavior.” A better word would have been “activity,” since that would have made clearer that they are talking about things like patterns of vehicles coming and going, equipment on roof-tops, and the like.

              And to call that piece a “decimation” is an act of wishful thinking. It is riddled with factual errors and illogic.

              First, al-Qaeda today is not the al-Qaeda of 9/11

              And the Japanese military of 1945 was, in exactly the same way, “not the Japanese military of 1941.”

              the 2001 Authorization for Use of Military Force specifically limited military force to those who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001

              The actual AUMF reads: against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons

              Whatever feelings the author of that piece may have about the difference between al Qaeda and al Qaeda, the “he determines” language renders his (rather fanciful) opinion moot.

              Even assuming arguendo that they are (that is, that al Qaeda is al Qaeda), those being targeted might have no role in hostilities against the U.S., they might have no role in hostilities at all against anyone, or they may have undertaken some hostile acts but no longer do so. The law of armed conflict does not limit targeting to enemy armed forces, but it does prohibit targeting others unless, and only so long as, they are directly participating in hostilities or otherwise perform a continuous combat function.

              That’s just great, except that the argument begins by “assuming arguendo that” members of al Qaeda are members of al Qaeda.

          • That looks like a pretty awful counting method, all the more so when the strike zones aren’t clearly military.

            • Cody

              It is definitely suspect. However, if OBL is standing in a room surrounded by 5 20 year old men with ak-47s. do you blow up the whole room? Or do you say that those 5 people could be civilians who don’t even know OBL is there, or are unaffiliated with Al-Qaeda.

  • TT

    This line sure rankles:

    “Nothing else in Mr. Obama’s first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record.”

    I favor an “aggressive counterterrorism record” against al Qaeda and other threats as much as the next American. I just don’t see why shitting all over both the Constitution and federal and international law must be the prerequisite for having one. Conservative framing wins again.

    • Joe

      It “baffles” some of them since (a) they ignore that he wasn’t some civil libertarian in ’08 even if you can quote some nice (with loopholes) remarks he made about Bush going too far (see, e.g., signing statements) (b) there often is in the real world no realistically ideal solution (c) they don’t like the rules (e.g., Americans can be killed w/o going to court in military conflicts) (d) are upset at policy that he upfront said he’d do (expand Afghanistan and target terrorists specifically) etc.

  • Ugh

    David Axelrod, the president’s closest political adviser, began showing up at the “Terror Tuesday” meetings, his unspeaking presence a visible reminder of what everyone understood: a successful attack would overwhelm the president’s other aspirations and achievements.

    Terror effing Tuesday? Jeebus.

    I guess the POTUS lesson is, better a thousand dead foreigners than one dead American, even if that ratio doesn’t hold in the long run.

    • wengler

      This is an indication that the President knows American politics well. Though I think most countries’ people would act the same.

    • rea

      Terror effing Tuesday? Jeebus.

      Well, of course, what he ought to do is stop paying attention to the threat of terrorism, say, “You’ve covered your ass” to his briefers, and go cut brush on his ranch.

  • Bart

    Very depressing. Since I couldn’t finish it, what lobbying of Congress was Hilary planning?

    • Richard

      To authorize the closing of Guantanamo.

      And I didn’t find the article depressing. Maybe the opposite.

  • wengler

    Instead of this series excoriating readers for real or imagined slights against Obama, it would be much more informative to profile the crazy people that make certain that no good thing ever passes.

    Obama has a difficult job trying to reason with people that have trouble considering facts and evidence when developing policy, but you have to remember too that Obama is a politician and his constituency is still often the same people as the Republicans’. That’s what happen when a narrow sliver of people own this country.

    • So…President Obama was forced to destroy innocent people with drone strikes?

      • Cody

        More like the people electing him (a.k.a. the American public) prefers that he kills lots of people with drone strikes whether or not they’re innocent.

  • TT

    That’s what happen when a narrow sliver of people own this country.

    Apples and oranges. The constituency in favor of “Please bail out me and my irresponsible banker/hedge fund friends when we fuck things up but let us keep our billions in profits” is microscopic compared to the constituency in favor of “Please ignore everybody’s Constitutional rights except mine when fighting the War on Terror”.

    • njorl

      The latter constituency is a significant majority of the population.

  • Every president is convinced that he can be trusted to handle it

    But not every president has had the US military assassinate American citizens.

    • Malaclypse

      You are aware that American citizens fought in the Wehrmacht, right? Do you think FDR issued special orders about them based on their citizenship status?

      The morality of killing does not change based on citizenship.

      • david mizner

        No, but the reality that the WOT is a worldwide war without end and without limits is the most popular (with Americans) argument against it, so please keep saying it —

        Obama has killed Americans, including kills American teenagers, and he signed a law allowing the indefinite detention of Americans, etc.

        Similar to the way death penalty abolitionists and anti-abortion rights zealots have gotten traction — highlighting the most politically unpopular manifestations of policies.

        Or to paraphrase you, the morality of the death penalty does not change based its victims crimes, or lack thereof.

        • joe from Lowell

          So you agree that the factors you make sure to highlight – citizenship, drone platform – are of no legal or moral consequence, and that you pretend they are purely for emotional effect.

          Good to have that on record.

          • david mizner

            I never maintained the citizenship was of any moral or legal significance, but on your larger point, it’s called politics, child.

            • Malaclypse

              Then why did you include it as a germane point? Because if you leave it out, your statement becomes “But not every president has had the US military assassinate American citizens accused terrorists,” and that statement would be laughably incorrect.

              • david mizner

                That wasn’t me.

                • Malaclypse

                  You are right, my apologies. Being covered in poison ivy has proven an unpleasant barrier to reading comprehension.

                • joe from Lowell

                  Let’s try to bring something good out of this.

                  We all agree that there is no legal or moral implication to the citizenship status of the people targeted in military strikes.

                  There seem to be a lot of people who think there is – that citizenship is a very important consideration. Perhaps this little meeting of the minds from such disparate thinkers can help put that misapprehension to bed.

            • joe from Lowell

              I never maintained the citizenship was of any moral or legal significance

              Is this sort of like how you never try to get into the heads of politicians?

              You are either the least self-aware person on the internet, or the most dishonest. I have to assume the former, because I can’t believe anyone deliberately trying to be dishonest would write something so obviously, laughably, transparently false.

              • joe from Lowell

                You know what? I’m feeling generous.

                OK, david, you’ve never thought that there was any moral or legal implication to the government killing American citizens in drone strikes. Every time it appeared that you were doing that, you were actually just trying to create an idea you knew to be false in the minds of your readers – that is, lying to them – because you decided it would be politically useful to do so.

                Or, as you so pithily put it, “it’s called politics, child.”

              • david mizner

                Put up a link or shut up.

                • joe from Lowell

                  This is hilarious.

                  No, I’m not going to shut up – but as someone who would quite like to see you discredit yourself even more than you already have over the past couple of weeks, I invite you to keep insisting, to a readership that is quite familiar with your arguments, that you have never suggested that there is legal or moral significance to Awlaki’s citizenship.

                  Please, by all means, make sure you are absolutely clear on this point, using as much repetition as you feel is warranted.

                • david mizner

                  I might have argued about the particulars of al-Alwaki’s case (though Itend to focus more on the killing of his son) but no, I’ve never said citizenship is important. I’ve pointed out that neither the Bill of Rights nor IL distinguishes. And I pointed out that one of the constitutional challenges to the military commissions system is based on the fact that only non-Americans are eligible raising equal protection problems.

                  And as much as your like to invoke the LGM consensus, I suspect that most people here would prefer that people back up their claims about other people.

                  So yeah, put up a link or shut up. Actually put up a link or shut the fuck up.

                • And as much as your like to invoke the LGM consensus, I suspect that most people here would prefer that people back up their claims about other people.

                  Yes! Yes we do!

                  (What I find amusing about your unfounded accusations (or “wonderings”) against Scott and me is how easily falsifiable they are and how hilariously ineptly defensive you are about them.)

                  Or, to manglequote…someone:

                  Links! Bring me links! An appropriately absurd blogocratic response.

                  Now, since I DO like data, I’ll did do a bit of poking (not a lot because, frankly, you don’t deserve much support). You did have at least one comment wherein you held that due process applies regardless of citizenship, and a follow up where you baldly state that:

                  Right, but it shouldn’t make any difference whether al-Alwaki is an American citizen. The Bill of Rights doesn’t distinguish.

                  And, just to put me into moderation, more support for your not making a citizen/noncitizen distinction.

                  So, Joe, I’m not sure what you’re getting at, and would appreciate a few links. I didn’t have much luck finding them.

                • BTW, David, just in case you were wondering, I would stop linking to your past shame if you’d y’know face it and act reasonably. And I take your new found delicacy about unsubstantiated claims about other people a wee bit more seriously if you would, y’know, fess up to your notable failings in this area.

                  (Ok, I might still link to it for giggles, but you’d be able to share in the giggles!)

          • timb

            ludicrous

        • rea

          Obama has killed Americans, including kills American teenagers

          You have two concrete examples, one (the teen) who was killed accidently, because he was riding in a car with an unquestionable al Qaeda leader, and the other who bragged about his role in terrorist attacks in public.

          • Cody

            Well to be fair, it appears that Bill is arguing that we cannot kill ANYONE without due process. Sense citizenship is irrelevant, our government will have to detain and hold trial for any enemy of the state.

      • Yes, I remember well how after World War II we lined all the enemy combatants up and shot them without trial. And I remember Harry Truman saying “this gives me the right to blow up Americans from the air based upon secret evidence.”

        • joe from Lowell

          we lined all the enemy combatants up and shot them without trial

          If you don’t understand the distinction between a prisoner and someone active in the fight, you need to go back and re-read the Geneva Conventions before offering further commentary.

          Because this a discussion about the latter, not the former, and I don’t think you can even tell the difference.

        • Scott Lemieux

          What moral or legal significance does American citizenship have?

          I’m not sure I’d be invoking Truman when it comes to the mass killing of innocents from above. But, hey, at least the victims generally weren’t Americans, so nothing to worry about!

          • joe from Lowell

            But Scott, don’t you remember Truman releasing the reports from Bomber Command to the general public before each and every air strike launched in the European and Pacific theaters?

            You know, because of the illegality and immorality of having the military select the targets for air strikes based on “secret evidence.”

    • Joe

      Right. Lincoln et. al., like Obama, had the military and so forth “kill” them. “Assassinate” has a meaning. You can call abortion “murder” if you like. Not be the law though.

      • rea

        Sherman pointing out Bishop Polk and his staff to a battery, and ordering them to open fire . . .

        • timb

          is part of a battle, where the objective is the force the enemy forces to submit. There is no assassination on the battlefield. And, the battlefield, no matter what the OLC can be ginned up to say to the King, is not the whole planet

          • njorl

            An example of a targetted killing by US armed forces of an enemy individual which was not part of a battle.

            http://en.wikipedia.org/wiki/Operation_Vengeance

            • timb

              Such a shock someone cited Yamamoto. I know I would. Still, you are comparing an Admiral, flying on the way to a combat mission over contested airspace with the killing of American civilian in a foreign country, who, it might be added, was not responsible for 9/11.

          • joe from Lowell

            And, the battlefield, no matter what the OLC can be ginned up to say to the King, is not the whole planet

            That’s funny; I don’t recall any legal opinions being needed to authorize the bombing of German air fields, munitions plants, and oil refineries.

            Far too much of the criticism of these strikes seems to revolve around the misapprehension that military operations can only take place between lines of musketeers facing each other in a field.

            • joe from Lowell

              I do sort of like the idea that the Army Air Corp was trying to get the ball-bearing plant to submit.

            • timb

              German airfields are not part of Germany?

              • Colin Day

                “German airfields” means airfields used by the Germans, not airfields in Germany.

              • joe from Lowell

                With a few notable exceptions, such as those in Belgium, Poland, Russia, Italy, North Africa, France…

            • timb

              says the guy who doesn’t object to the blowing up of wedding parties

              • joe from Lowell

                Oh, look, it’s the “photos of aborted fetuses” style of argumentation it’s its left-wing form.

                Got no argument? Shriek louder!

      • “Kill in battle”, “assasinate with mile-high death robots”….same thing, really. So who cares??? Yawn, pass the remote, “Storage Wars” is on.

        • Scott Lemieux

          I have yet to understand the moral difference between killing someone with an unmanned plane versus a manned plane…

  • Joe

    We all agree that there is no legal or moral implication to the citizenship status of the people targeted in military strikes.

    This sounds nice but I don’t think it’s true.

    The U.S. has the power to use military force to protect citizens even if abroad. This implies a balancing duty to them. Non-citizens do not have this. Citizenship is a special relationship with responsibilities on each side, including moral ones. To treat citizens and non-citizens exactly alike is not necessary even if various basic things apply to both.

    • Joe

      Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States.

      http://www.law.cornell.edu/supct/html/historics/USSC_CR_0083_0036_ZO.html

    • njorl

      I think this is true, but not that relevant. Yes, the US owed Al-Awlaki the consideration of arguing on his behalf, but once that argument ended (not in his favor), the relevance of his citizenship ended.

  • timb

    Pierce on Alawaki. He seems more right to me than apologists from Lowell.

    Is it even necessary to point out how preposterous it is to claim that the dead man’s Fifth Amendment rights were guaranteed because members of the Executive Branch had long discussions about how and when to kill him? Jesus, just kill the guy. The Bushies may have had manifest contempt for due process, but at least they didn’t go out of their way to make a burlesque out of it

    Read more: http://www.esquire.com/blogs/politics/obama-kill-list-9257224#ixzz1wMeEsUQY

    • joe from Lowell

      You can’t actually put forward any argument – you need to link to someone else who, you “feel,” can – but you’re pretty sure he’s right.

      Okay.

      And if you don’t understand that a state of war has legal significance regarding who the military is allowed to shoot at, then…well, that goes a long way towards explaining why things “feel” certain ways to you.

      • timb

        There is no state of war with yemen

        • joe from Lowell

          And there was no state of war between the United States and France in 1944.

          There was, however, a state of war between the United States and Germany, whose army was in France.

          Just as there is a state of war between the United States and al Qaeda, who are in Yemen.

          C’mon, it’s 2012. You’ve heard this before. I’ve told you this before, without your being able to think up any rebuttal. Do we really have to go through the already-established preliminaries every single time? You already know this crap.

    • joe from Lowell

      I can’t believe people still make this argument:

      Except that, under the Constitution, nothing “amounts to” a declaration of war. War is declared or it isn’t.

      If you believe this nonsense, then you would have to believe that it is unconstitutional for the EPA to issue any regulations not spelled out in the Clean Air Act, regarding any substance (like greenhouse gasses) not explicitly described in the legislative language.

      • Nonsense! That’s good, clean, progressive policy. There’s obviously a difference, I can FEEL it!

        • joe from Lowell

          There’s actually a legitimate argument to be made about the preferability of old-fashioned war declarations to AUMFs.

          But it just doesn’t have that same kick-in-the-pants feeling of a good scare story about the Constitution.

      • timb

        Someone never heard of enabling statute, which is sort of different from an AUMF.

        The idea you and Brien are clear-headed logic addicts and everyone else FEELS their objection is just silly.

        You claim the President can kill anyone he deems in his non-reviewable process to be guilty of facilitating Al Queda. Not only do you claim that, you deride anyone who might feel uncomfortable with the President being judge, jury, and executioner. And, you do so, not based on any legal principle (for instance, that an American citizen’s Fifth Amendment right to due process from the Federal Government for alleged crimes can be satisfied by talking about those Due process rights inside the White House), but because that’s the way it is.

        Welcome to your king. I hope King Romney don’t abuse this power that you are even willing to question him authorizing.

        • joe from Lowell

          Someone never heard of enabling statute….

          Actually, champ, I spent seven years as a planner implementing zoning and subdivision laws, both of which are enabled by state enabling statutes in my state. I know exactly what an enabling statute is. In fact, I know that subject well enough to be able to recognize that an AUMF functions as an enabling statute. It’s legislation passed by Congress, directing the executive to decide when and how to implement a broad power granted to the legislature – that is, a delegation of a power.

          …which is sort of different from an AUMF.

          Really? And how might that be? I couldn’t help but notice that you didn’t include any sort of argument, logic, evidence, or other supporting thoughts behind your naked, historically- and legally-indefensible assertion.

          Rather, you threw a little tantrum because you can’t hold your own in this argument. Lemme give you a hint: asserting that an AUMF is unconstitutional is NOT a good way to turn that around.

  • Jesse Levine

    There is nothing more illuminating about the morality of this death panel than the fact that it’s meetings are routinely attended by the President’s top political advisor.

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