And if you do want to take someone out because of their crimes or threat of crimes, find a way to present the evidence for it. This:
is completely unacceptable.
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Justice Department Memo on Drone Striking American citizens who are al-Qaeda leaders
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And if you do want to take someone out because of their crimes or threat of crimes, find a way to present the evidence for it. This:
is completely unacceptable.
empty vessel
Member
What conspiracy? Mind you, it is completely irrelevant to the issue of constitutionality whether he was alleged to have been committing any crime. I only made this point to emphasize the absurdity of those attempting to justify the killing. That people can embark on justifications for the government's murder of a person without even being able to articulate in any specificity at all what alleged acts on the part of the victim justify it is obscene, in my opinion.
The government cannot deprive a person of life without due process. The relevant question concerns what process is due, not whether it is due. And that an imminent threat of violent attack must be present before the government may kill without any process having been afforded is not even disputed by the DOJ memo. The DOJ itself understands that no less than imminent violence must be threatened to justify killing: "Any operation of the sort discussed here would be conducted in a foreign country against a senior operational leader of al-Qa'ida or its associated forces who poses an imminent threat of violent attack against the United States. A use of force under such circumstances would be justified as an act of national self-defense."
It is clear that you have at least skimmed the DOJ memo. But that only allows you to parrot it, not to critically analyze it. The problem with the DOJ memo is that DOJ lawyers transparently committed legal fraud to reach their desired conclusion on the plainly illegal assassination program that President Obama wanted to carry out.
First, the DOJ’s conclusion that “the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad authorized by the AUMF or in national self-defense” is based on incredibly specious reasoning. The paper cites Hamdi, 542 U.S. 507, 518 (2004), for the proposition that “the military may constitutionally[] use force against a U.S. citizen who is a part of enemy forces.” But that citation says nothing at all about that. Here is the text of Hamdi's page 518 in full:
Note that the U.S. Supreme Court is not speaking to the constitutionality of anything on this page. It simply concludes that the President’s capturing of people was an exercise of the force that Congress had authorized the President to use, i.e., that it was within the bounds of the law passed by Congress. From this citation, the DOJ infers that “the use of lethal force against such enemy forces is an ‘important incident of war.’” Even if that inference were reasonable, that would at most prove that the Congress authorized the President to kill Americans. It would say nothing about its constitutionality. From this, the DOJ jumps straight to the conclusion that American citizenship does not immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force. This is a non sequitur. Besides the fact that the Supreme Court precedent it relies upon does not even purport to address the conclusion reached by the DOJ, the limiting principle the DOJ imposes is totally arbitrary and plucked from the ether. Congress did not limit the use of force to “senior operational leaders,” so why the Administration would be limited to using lethal force against American citizens only if they are “senior operational leaders” has no principled basis whatsoever. Likewise with the limitation that the killing be done abroad.
(And, indeed, in the next section, the DOJ concludes that the US government can kill American citizens anywhere in the world because “The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict.” In short, the DOJ did not find anything that said it could not do it. Ergo, it can. The DOJ even cites President Nixon’s bombing of Cambodia during the Vietnam war as support for its proposition that the armed conflict is wherever it says it is. Never mind that Nixon was impeached for misleading Congress about the bombing of Cambodia.)
Ultimately, the DOJ concludes:
This test is problematic for several reasons. First, as mentioned earlier, no principled basis is even so much as offered for the following limitations: (1) that the U.S. citizen be located outside the United States; (2) that the U.S. citizen be an operational leader; and (3) that the U.S. citizen be continually planning attacks against U.S. persons and interests. Because no principled reasons are given for these limitations, none of these should or can be treated as actual limitations.
Second, and fundamentally, the DOJ memo affords no process at all to the very executive determinations that render the person liable to summary execution in the first place: whether the U.S. citizen is in fact “an operational leader continually planning attacks against U.S. persons and interests.” The DOJ memo therefore posits a process in which no process is due the citizen vis-a-vis the government’s determination of the citizen’s status as operational leader and conclusions about the citizen’s activities and their continuity.
Finally, the memo subsequently defines away entirely the “imminence” and “feasibility” requirements. Imminence laughably gets reduced to a condition that "does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future." Thus, the actual test posited by the DOJ reduces to the following:
The U.S. government is able to use lethal force against any U.S. citizen where an informed, high-level official of the U.S. government has determined that the individual poses a threat of violent attack against the United States.
That’s not constitutional. Not by a long shot.
First, the AUMF is an act of Congress. Congress cannot authorize the Executive branch to violate due process. That completely settles the matter. Second, even if the Congress could authorize the President to violate the constitution and kill Americans he believes are dangerous, the DOJ white paper is only premised in part on the AUMF: "Accordingly, the Department does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa'ida or its associated forces from a use of force abroad authorized by the AUMF or in national self-defense." That's an assertion of the President's inherent power to kill Americans he or she deems dangerous regardless of what Congress says.
No, they aren't taken out of context when applied. The due process balancing test applies whenever due process is at stake. Cases that say citizen belligerents require due process of a trial before a tribunal does not mean that these cases say that citizen belligerents may be assassinated and do not require due process.
Yeah, I got that part already. But what do you DO about it? Not nothing, I hope. If that were the policy, I'd worry about al-Qaeda and other terrorist groups stepping up recruitment from the US, similar to their notable success recruiting from the UK
Advance_Alarm
Member
I read this as an update on how to prosecute wars that aren't against a nation-state (specifically the war against Al-Qaeda happening now).
Hypothetical: If the US went to war against Mexico and US Citizens chose to become soldiers for Mexico would the US not be allowed to kill them? At that point those people are enemy combatants and subject to the laws of war, not the US criminal justice system.
Another example: United States Civil War. Were not Confederate Soldiers still considered to be US citizens (if the Federal Government's stance is that secession is not legal)? However, they were treated like enemy soldiers, this means death on the battlefield and treatment as POW's, not criminals.
I think the J Dept. did the right thing in outlining these procedures and even trying to add some small leniency for US citizens fighting as enemy combatants abroad. I honestly find it completely juvenile that some of GAF thinks that people bearing arms against the United States in a foreign warzone should use their US citizenship as a shield.
That being said, I don't think drone strikes are/can win any war against AQ.
Hypothetical: If the US went to war against Mexico and US Citizens chose to become soldiers for Mexico would the US not be allowed to kill them? At that point those people are enemy combatants and subject to the laws of war, not the US criminal justice system.
Another example: United States Civil War. Were not Confederate Soldiers still considered to be US citizens (if the Federal Government's stance is that secession is not legal)? However, they were treated like enemy soldiers, this means death on the battlefield and treatment as POW's, not criminals.
I think the J Dept. did the right thing in outlining these procedures and even trying to add some small leniency for US citizens fighting as enemy combatants abroad. I honestly find it completely juvenile that some of GAF thinks that people bearing arms against the United States in a foreign warzone should use their US citizenship as a shield.
That being said, I don't think drone strikes are/can win any war against AQ.
empty vessel
Member
I find it juvenile that you and others are incapable of distinguishing between the US killing organized, armed people on actual fields of battle and vague allegations of "continual planned attacks" from places in which no armed conflict is ongoing. What we are seeing here is a ridiculous stretching of and/or mass delusion about what a war or a battle is.
The distinction comes from "bearing arms." Even the Lieber Code issued by Lincoln prohibited assassinations during the Civil War:
el retorno
Member
You don't think he was bearing arms against his country?
I don't agree with assassinations. I don't think targeted killings are the same thing though
DiscoJer
Member
Regardless of what you think about the use of drones to assassinate people, one thing that seems to go completely unmentioned in the US press is the use of "double tap" attacks.
Basically we blow someone up with a drone, then when people come to rescue them, we blow up those people too.
Do a search for it. You turn up stories at Daily Mail, the Independent, etc. But in the US press? The NYTimes has a blog post mentioning that there is a "suggestion" that it is happening.
http://rendezvous.blogs.nytimes.com/2012/08/22/sizing-up-the-effects-of-u-s-drone-attacks/
That is flat out wrong.
Basically we blow someone up with a drone, then when people come to rescue them, we blow up those people too.
Do a search for it. You turn up stories at Daily Mail, the Independent, etc. But in the US press? The NYTimes has a blog post mentioning that there is a "suggestion" that it is happening.
http://rendezvous.blogs.nytimes.com/2012/08/22/sizing-up-the-effects-of-u-s-drone-attacks/
That is flat out wrong.
Double tapping is a tactic known to be used by terrorist groups like Hamas. So our drones are essentially using terrorist tactics.
Actually I will just reiterate my belief that the CIA is a terrorist organization.
Phoenix
Member
So all a high ranking terrorist leader really needs to do is keep his American contact near him at all times and he's pretty much in good shape. Can't drone strike him, can't launch a massed force op against him, all you can do is wait until you can arrest him - then you can attack your high value target.
Most of the time these laws aren't written in a vacuum. There is normally some motive behind it based in operational necessity such that some unit wanted to take an action and were told they couldn't because it was illegal - which resulted in someone having this drafted and pushed.
Oh you mean the thing that gets mentioned in every single drone thread ever? So glad you've come to make sure it hijacks this thread too.
I think double tapping is wrong too
Phoenix
Member
Terrorist activities and planning generally doesn't take place in the midst of armed conflict. In fact, they tend to be planned and operated in neutral countries which don't track their money and have loose obligations to intelligence sharing and extradition. In these scenarios (i.e. like pretty much all of the terrorist attacks that have actually hit US soil or even ships/bases abroad), what you're suggesting is that an American citizen involved is not a clean target and must be apprehended and brought to trial.
I don't think he was at the moment of death killed in battlefield combat.
I don't think it compares to a random Confederate soldier killed while actively trying to kill Union soldiers in a battle, and Lincoln's issued Lieber Code already prohibited targeted killings.
curlyfriski
Banned
Uh, yes? Are you suggesting that arresting suspects is somehow an impossible act? Or that it's OK to kill Americans if they're near terrorists?
Ummm...ok. "Operational necessity" doesn't make constitutional rights irrelevant.
Did you forget to put in the part where you make an argument?
Asking for some due process does not mean asking for all due process, as the military tribunals and wiretapping proceedings demonstrate. Look at the process involved in getting a wiretap--secret presentation of evidence before a neutral arbitrator. Here, there is no due process at all, and even though a judge isn't involved, it tries to expand executive power to say that no clear evidence of a threat is even needed.
This isn't a law, just a legal memorandum. Like the memos written to Bush saying the use of torture was legal, or how the War on Iraq was justified under UN resolutions (even though the UN did not support the use of force).
I'd be very interested in how you'd plan on arresting the guy hidden in an al-Qaeda stronghold deep in a foreign nation without it erupting into a huge firefight that will likely end up with the guy dead anyway, plus a bunch of American soldiers.
I'm still looking for what is the viable alternative to drone strikes?
A middle ground could be targeted killings with some amount of process. You get more rights when the government wants to tap your phone (a neutral judge deciding that there is enough evidence to permit it) than when the government decides to drone strike you (there is no neutral judge, just the executive branch, and "the condition that an operational leader present an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.").
TheHeretic
Banned
It's you that's stuck in the past. You understand war as specific conflict between nations with clear rules and battlefields, but that isn't what combat looks like anymore, we are at war with an organisation, not a country. The reason the McVeigh comparisons are ridiculous is because he wasn't being financed by global oil wealth with sympathisers at the head of various states, and he wasnt running an operation with footholds in dozens of countries.
We haven't declared war on Yemen because we aren't at war with Yemen, until you can wrap your head around this you are going to go on blabbering about American empire. It's Bin Laden and his cult who want to restore the caliphate, they're as explicitly pro empire as can be.
curlyfriski
Banned
We're not at war with an organization, we're at war with an idea, which guarantees we'll never stop being at war until we give up. The Al Qaeda that planned 9/11 no longer exists.
The memo argues that citizenship does not preclude you from being killed by a drone strike; individuals are engaging that particular argument, and its various claims.
Okay, now we're talking. It's an interesting start, though I do wonder about the practicality of turning intelligence into evidence.
Phoenix
Member
Because they are US citizens damnit, so it doesn't matter that they are consorting with the enemy - we should let them continue to do so until we have the means to arrest them and bring them to justice. Wait... if we could do that, wouldn't we be doing the same thing to the rest of the associates... hmmm....
Phoenix
Member
What due process are you arguing for? That it go to a judge and the judge say its okay for the strike to take place, because if you follow the "its assassination argument" - the only time you will have clear evidence of a threat is when the activity is underway. What is being requested is actually a higher burden of proof than the officer on the street currently has today. I'm not saying that what he has is right, but it is actually easier for that officer to kill an American citizen for "walking out of a club and going to his trunk" than it is for an intelligence agency with operational knowledge to engage a target.
I'm not saying that it IS a law, I'm speaking about what happens when these sorts of things become laws. People don't just shit them out, they are usually motivated by some necessity and so the organization/agency petitions to the oversight committee to remove a constraint that's preventing them from performing an action.
Link
The Autumn Wind
An officer could not legally kill an American citizen for "walking out of a club and going to his trunk;" they must prove a belief of an imminent threat with clear evidence, and the officer can be tried criminally and civilly for not meeting the standard.
The present situation is no process, with no check or oversight on the executive branch decision. The executive branch does not have to present evidence to anybody, before or after the act, to justify its action. Even if you reject the need for clear evidence of a imminent threat and accept the executive's broad definition of "imminence" ("the targeted American has been recently involved in activities posing a threat of a violent attack") and accept the broad definition of battlefield, there is no neutral arbitrator to confirm that there is evidence of this past activity, that the individual represents a leader, etc.
These legal memos rarely become codified law. They are predicting hypothetical court rulings, and are the baseline for legal briefs should the issue go to court.
I don't even get it.
What's going to cause a kid to be more likely to devote his life to a terrorist group?
a) a guy in town yelling about how America is evil and hates Islam
or
b) a guy in town yelling about how America is evil and hates Islam AND the kid having had an immediate family member, 3 relatives, and 4 acquaintances killed by drone strikes?
What's going to cause a kid to be more likely to devote his life to a terrorist group?
a) a guy in town yelling about how America is evil and hates Islam
or
b) a guy in town yelling about how America is evil and hates Islam AND the kid having had an immediate family member, 3 relatives, and 4 acquaintances killed by drone strikes?
That is because Congress has authorized the use of military force against Al Quaeda and any associated organization or person.
The 5th amendment specifically states that when the military is involved, you don't need to have charges brought before a grand jury or a court. Though this is mostly used to justify military tribunals, it can also be used to justify no proceedings at all once congress has authorized the use of military force.
The 5th amendment also does not mention citizens, but persons. Citizenship is basically constitutionally and legally irrelevant except when it comes to serving jury duty, holding/running for office, or voting.
It's a question of whether or not the war powers act is constitutional, what the distinctions are between a declaration of war and the authorization of military force, and what, if any, restrictions on the use of force apply under these circumstances.
empty vessel
Member
My position is actually that no person, whether an American or not, accused of having committed terrorism in the past or plotting to commit terrorism in the future is subject to being assassinated by the US government without apprehension and trial unless at the time of killing they represent a genuine (not make-believe) imminent threat to the public's physical safety, i.e., the same standard that governs whether a police officer may constitutionally use lethal force against an individual who is a threat to the public. In these circumstances, it matters not at all whether a person is an American citizen, whether the person is an "operational leader," whether the person is "continually planning attacks," whether the person is acting on any kind of battlefield, or whether the person is abroad; it is the imminent threat to public safety alone that permits the lethal force.
As you note, terrorism is almost always a purely criminal act--not an act of war that occurs on a battlefield--and alleged criminal acts, per our constitution, require substantial process prior to depriving a person of liberty or life whether the person is a citizen or not. I do believe that the status of American citizenship makes the deprivation more egregious--and that we could interpret the constitution to give more protection to American citizens under these circumstances--even if our current understanding of the requisites of due process draws little distinction between citizens and non-citizens.
I believe war can occur between a state and another organized entity that is not a State. I don't, however, believe that is occurring right now. And, if it is, the world is not the battlefield of that war.
These distinctions seem utterly irrelevant to me. Either an organized movement is waging war on the US or it isn't. If some (made-up) global organization called al-Qa'ida is at war with the US, then the right wing militia movement definitely is as well, which means the same engagement rules must perforce apply.
I don't know what you're babbling on about here.
You forgot the 14th Amendment, where most due process arguments come from. Or the Fourth Amendment which provides no military waiver. Citizens are always subject to the jurisdiction of the US, otherwise there couldn't be things like prosecution for things you did overseas, taxation for income earned overseas, the foreign corrupt practices act, etc. That part of the 5th Amendment applies to US military forces, and the 14th and 4th Amendment still requires due process even when there is no grand jury (hence, military tribunals).
Read the memo, and you'll see even the administration concede that the citizen has rights abroad, and is afforded some amount of due process. They simply argue that their standards afford the citizen with adequate process under the Mathews v. Eldridge balancing test:
I have no idea how you could possibly come to that conclusion without having your head in the sand for the last twelve years.
empty vessel
Member
A terrorist attack carried out on US soil by a handful people in 2001 means there is a war going on? I don't think so. Not even in 2001, let alone in 2013. Since that criminal act, the US has basically been unlawfully attacking both countries and people. No legal wars have occurred (the UN authorized neither the invasion and occupation of Afghanistan nor of Iraq), and the US's use of its military to pursue and kill alleged criminal actors plotting criminal acts or others who are forcibly resisting its unlawful course of conduct abroad certainly does not magically turn all of this into a war or the ground on which they stand into a battlefield.
Funnily enough, I believe al-Qaeda would disagree with you.
And criminal acts and acts of war are not mutually exclusive.
And criminal acts and acts of war are not mutually exclusive.
empty vessel
Member
I'm not in the habit of taking al-Qa'ida's word for things.
No they aren't exclusive. The US, for example, engages in entire wars that are crimes (Iraq). But neither do criminal acts go hand-in-hand, of course. Otherwise, every person currently in a US prison for a violent offense was in fact subject to being summarily executed without trial.
Suffice it to say, it is ridiculous in my opinion to suggest that the US is "at war" with a small group of people in Yemen it accuses (without evidence) of plotting to commit criminal offenses against the US. Indeed, I would be a lot of money that most of these alleged "plots" either don't exist at all or are simply actions designed to be taken against US occupation forces abroad (and hence are not even terrorism in any meaningful sense of the word).
You forgot the 14th Amendment, where most due process arguments come from. Or the Fourth Amendment which provides no military waiver. Citizens are always subject to the jurisdiction of the US, otherwise there couldn't be things like prosecution for things you did overseas, taxation for income earned overseas, the foreign corrupt practices act, etc. That part of the 5th Amendment applies to US military forces, and the 14th and 4th Amendment still requires due process even when there is no grand jury (hence, military tribunals).
Read the memo, and you'll see even the administration concede that the citizen has rights abroad, and is afforded some amount of due process. They simply argue that their standards afford the citizen with adequate process under the Mathews v. Eldridge balancing test:
Right, but they don't have these rights because of their citizenship, but becauase they are subject to the jurisdiction of the US (and I use jurisdiction in the loose sense, as in, the US is imposing something on them, be it law or military force.)
I'm simply saying citizenship doesn't/shouldn't make a difference, because otherwise you end up with essentially a caste system between citizens and non-citizens, classes which are arbitrarily defined by the government.
No, that's never how jurisdiction applies. That would mean the US has jurisdiction on anybody throughout the world, including taxing power, because it is imposing something on them. The US can tax US citizens that live or make money abroad, but they can't tax foreign citizens. Under your definition of jurisdiction, the US can tax foreign citizens living abroad, making money abroad, since at the moment they are taxing them, they are imposing something on them, so they have jurisdiction.
Your argument says that we need to apply the Fourth Amendment to everybody that the US imposes military force on.
Oh come on, I think it's pretty easy to see what I mean:
#1: You're a US citizen
#2: You're within US territory
#3: You are a military target of the US (and no, this doesn't mean the US can tax North Korea).
I'm not saying the US can do whatever it wants to you because it decides to get involved with you. I'm saying that all persons are afforded the same protections FROM the government, regardless of whether or not they're citizens.
There are no constitutional protections afforded to foreign citizens in foreign countries that protect against for example, a search and seizure, a wiretap, a rendition, even a killing, by the United States. There may be some laws that protect against it in that specific country, or laws enacted by Congress, but you cannot sue to say your Constitutional rights were violated. You can't say that they violated your Fourth Amendment rights. That analysis changes when you are a US citizen--you can say that your Constitutional rights were violated, you are always under the jurisdiction of the US and its laws.
The flip side is that the US can tax you if you're abroad, but not others. Why does the US have jurisdiction to tax American citizens that live and earn abroad?
The nationality principle of jurisdiction is pretty old and uncontested, and has been reaffirmed by the Supreme Court:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZO.html
empty vessel
Member
Right, and the implication of that is that if they can do it to you when you're abroad, they can do it to you when you are here. The precedent this sets is breathtaking. It asserts the power of the President to alone decide to summarily execute an American citizen and to carry it out.
Obama hasn't started a war of an agression that killed 100,000 people. That's good enough for most liberals, I guess.
ironichaos
Member
Where did you get the idea that "the only people who seem to have a problem with this are the usual conspiracy nutters"? Maybe you should spend a moment to consider why killing innocent people (friendly reminder that our country is built upon the ideal that people are innocent until proven guilty in a court of law) is socially and morally wrong. There's no better example of how wrong our government can be in these instances of accused guilt than to look at the long line of intel they used to lock up innocent people in Guantanamo (where those who've been lucky enough to have had their cases heard, half have been found innocent and/or released). So now we want to allow our government to sentence people to death using that same intel? Now that's nutty.
This is the reason we have a court system...to determine guilt. When you have a bunch of guys behind closed doors determining who gets to live and die...where's the accountability? Where's the proof that these men, women, and children deserve the sentence of death?
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