At My Real Job: Targeted Killing and the Rule of Law

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar Thoreau
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    says:

    Your example is extreme, and a not-entire-unreasonable response is that while no system can be entirely reliant on the goodwill of individuals, no system can be expected to run well in the total absence of goodwill, so it is not completely irrelevant.

    Somewhat less extreme examples might be journalists who get interviews with guerrilla leaders, or businessmen who operate in dangerous areas and hence do business with unsavory local militias. Are they fair game for targeted killing? I actually might not have the highest opinion, of, say, an oil executive who strikes a deal with the local militia to get rich, but (1) one man’s “radical militia” is another man’s “local tribal law enforcement” and (2) having a low opinion of somebody is a bit different from wanting a special forces raid on his office.Report

    • Avatar Jason Kuznicki in reply to Thoreau
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      says:

      The extremeness of the example points up another aspect of the problem, too: I don’t believe for a moment that any court would allow the Republican presidential nominee to be placed on a targeted killing list.

      So there’s a line somewhere between him (or her) and al-Awlaki. But where? And how is it decided? The answer “this is not a justicable question” is — I trust — untrue, because other people facing the same question would not get the same answer.Report

  2. Avatar BlaiseP
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    says:

    The backward devils of Gerontion have already fathered unnatural vices on our heroism. Virtues are forced upon us by our impudent crimes. If I may say so, without engendering the silly ripostes about being a Murka-hater, American policies over the long decades have made strange bedfellows of the State and the Freedom Fighter. Our problem was not backing the Turrerists: perversely, our war in Afghanistan was so stupidly waged we managed to make enemies of former allies in the Haqqani clan, once the CIA’s most ferocious warriors against the USSR.

    Our problem was backing the wretched dictatorial regimes. Read what Osama bin Ladin actually said. Read what Awlaki actually says. America has played falsely, against its own best interests.

    I shall now issue a seemingly tendentious sentence to which there is no obvious answer or blame to assign: if we are so concerned about justice, why have we backed the likes of KSA and Mubarak and the various Pakistani and Guatemalan and South Vietnamese generalissimos and other undemocratic types? Look at wretched old Karzai, asymptotically corrupt, and that inchoate monster Maliki in Iraq, who shows every sign of becoming a Shiite Saddam. Even in our choice of revolutionaries, why have chosen so wretchedly? Jonas Savimbi, yea even the Taliban back in the day – before we haul old Orwell’s “political question” into the debate, shouldn’t we ask a few questions about the politics of our taking sides?

    Awlaki wants a martyr’s death. Let his wish be granted. He has placed himself beyond the reach of law: he could turn himself in at any police station and every criminal defense attorney in the land would love to defend him on a First Amendment basis. This he will not do. While he remains in the camp of the enemy, he ought to be treated as an enemy.

    Kennan writes in the Long Telegram, describing the problems of countering the Soviet Union’s hegemony. What was true of Communism then is equally true of Islamism now:

    This political force has complete power of disposition over energies of one of world’s greatest peoples and resources of world’s richest national territory, and is borne along by deep and powerful currents of Russian nationalism. In addition, it has an elaborate and far-flung apparatus for exertion of its influence in other countries, an apparatus of amazing flexibility and versatility, managed by people whose experience and skill in underground methods are presumably without parallel in history. Finally, it is seemingly inaccessible to considerations of reality in its basic reactions. For it, the vast fund of objective fact about human society is not, as with us, the measure against which outlook is constantly being tested and re-formed, but a grab bag from which individual items are selected arbitrarily and tendentiously to bolster an outlook already preconceived. This is admittedly not a pleasant picture.


    (1) Our first step must be to apprehend, and recognize for what it is, the nature of the movement with which we are dealing. We must study it with same courage, detachment, objectivity, and same determination not to be emotionally provoked or unseated by it, with which doctor studies unruly and unreasonable individual.

    (2) We must see that our public is educated to realities of Russian situation. I cannot overemphasize importance of this. Press cannot do this alone. It must be done mainly by Government, which is necessarily more experienced and better informed on practical problems involved. In this we need not be deterred by [ugliness?] of picture. I am convinced that there would be far less hysterical anti-Sovietism in our country today if realities of this situation were better understood by our people. There is nothing as dangerous or as terrifying as the unknown. It may also be argued that to reveal more information on our difficulties with Russia would reflect unfavorably on Russian-American relations. I feel that if there is any real risk here involved, it is one which we should have courage to face, and sooner the better. But I cannot see what we would be risking. Our stake in this country, even coming on heels of tremendous demonstrations of our friendship for Russian people, is remarkably small. We have here no investments to guard, no actual trade to lose, virtually no citizens to protect, few cultural contacts to preserve. Our only stake likes in what we hope rather than what we have; and I am convinced we have better chance of realizing those hopes if our public is enlightened and if our dealings with Russians are placed entirely on realistic and matter-of-fact basis.

    (3) Much depends on health and vigor of our own society. World communism is like malignant parasite which feeds only on diseased tissue. This is point at which domestic and foreign policies meet. Every courageous and incisive measure to solve internal problems of our own society, to improve self-confidence, discipline, morale and community spirit of our own people, is a diplomatic victory over Moscow worth a thousand diplomatic notes and joint communiqués. If we cannot abandon fatalism and indifference in face of deficiencies of our own society, Moscow will profit–Moscow cannot help profiting by them in its foreign policies.

    (4) We must formulate and put forward for other nations a much more positive and constructive picture of sort of world we would like to see than we have put forward in past. It is not enough to urge people to develop political processes similar to our own. Many foreign peoples, in Europe at least, are tired and frightened by experiences of past, and are less interested in abstract freedom than in security. They are seeking guidance rather than responsibilities. We should be better able than Russians to give them this. And, unless we do, Russians certainly will.

    (5) Finally we must have courage and self-confidence to cling to our own methods and conceptions of human society. After all, the greatest danger that can befall us in coping with this problem of Soviet communism is that we shall allow ourselves to become like those with whom we are coping.

    As a nation, we didn’t heed Kennan’s advice to the letter, and Kennan would agonize over the consequences of the Long Telegram for the rest of his life. This quote is admittedly very long and not all of it applies to this situation with Islamism. But we could make better choices in our involvement in global politics and it would begin, as Kennan observed, with courageous and incisive measures to solve internal problems of our own society, to improve self-confidence, discipline, morale and community spirit of our own people. This, more than any other step we might take is a diplomatic victory over our enemies. Dr. America, first heal thyself. All else will follow.Report

    • Avatar Jason Kuznicki in reply to BlaiseP
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      says:

      Our problem was backing the wretched dictatorial regimes. Read what Osama bin Ladin actually said. Read what Awlaki actually says. America has played falsely, against its own best interests.

      Entirely correct. Nonwesterners generally like the American culture. It’s enterprising, energetic, glamorous, independent, and — in a word — fun. But they hate the American government. Sadly, they’ve got good reason for it.

      The distinction once grasped should not be all that mysterious. Look at what our government does, which bears almost no resemblance to the American culture.

      I shall now issue a seemingly tendentious sentence to which there is no obvious answer or blame to assign: if we are so concerned about justice, why have we backed the likes of KSA and Mubarak and the various Pakistani and Guatemalan and South Vietnamese generalissimos and other undemocratic types?

      Agreed a thousand times over.Report

    • Avatar Pierre Corneille in reply to BlaiseP
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      says:

      George Kennan: The Long Telegram

      BlaiseP: The Long CommentReport

    • Avatar Kolohe in reply to BlaiseP
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      says:

      our war in Afghanistan was so stupidly waged we managed to make enemies of former allies in the Haqqani clan, once the CIA’s most ferocious warriors against the USSR.
      As a point of fact Jalaluddin Haqqani was an ally of the Taliban prior to Sept 11, 2001.

      The rest of the beginning I agree with, the last 2/3 buys into the incorrect assertion (oft made by the US political right these days) that Islamism is anywhere near the existential threat Soviet Communism was. (It is in fact a neglible existential threat – which is not to say there aren’t some nasty people out there who mean to do harm to Americans and others)Report

      • Avatar BlaiseP in reply to Kolohe
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        says:

        You conflate too much, to the point of nonsense. Haqqani and his sons were on the CIA and KSA payrolls. The word taliban is plural: there was never all that much consensus between them. The fact remains, the Americans abandoned the Pashtun and took up with the Tajik Ahmed Shah Massoud after the USSR left in 1992. Haqqani was bought off with a position of power in the Taliban regime in 1995, largely because he could not be ignored. The other major players, Rashid Dostum and Hekhmatyar, were also mollified with positions in the Taliban regime, but it did not prevent the Kabul Wars which finally ended in 1996.

        Re-read what I actually wrote and quoted. Communism, like Islamism, remains a threat insofar as we cannot not win hearts and minds to our side of the contest. It is not a struggle to be won with soldiers and weapons alone. The threat has been both over- and underrated. Insofar as we won’t sit down and rationally consider the actual problem, it will be as you say, a militarily-insignificant threat.

        The worst-kept secret of the Cold War was this: the USSR was always more afraid of us than we were of them. America built monstrously expensive strategic bombers to thump the rubble: the USSR built the Foxbat, a big, fast steel aircraft with vacuum tubes to fly high and fire missiles at them, a single purpose weapon. The Chinese didn’t even bother building a huge nuclear arsenal: they build a few dozen thermonuclear weapons and let the USSR and USA wage a war where the winner bankrupted the other and that’s eventually what came to pass.

        As for the existential threat of Islamism, paraphrasing the words of Kennan: The greatest danger that can befall us in coping with this problem of Islamism that we shall allow ourselves to become like those with whom we are coping.

        One of the chief arguments for Gulf War One and the 13 years of embargo and the second invasion of Iraq was that Saddam tortured people. Well, yes he did torture people, the exact same people we would torture, clerics and Wahhabi missionaries who he deemed to be vicious Islamic extremists hell-bent on destroying his secular society. Saddam warned us. He told us we’d repeat his pattern, and boy howdy, we sure did, right down to abusing prisoners in the Abu Ghraib jail where he’d done the same things, recapitulating his every error.

        That’s where we’re going to lose this war, not far away on some battlefield. We’re going to lose it at home. 9/11 came along, Bush and Cheney and Rumsfeld broke out in a rash of assholes and went batshit crazy. They had ignored the problem of Islamism, they ignored the actual threat to the nation then when those airliners hit Wall Street and the Pentagon their principles about torture went right out the window. They never understood Saddam because they never understood themselves. Their morals were not so tightly affixed as they had thought. In their manichaean view of the world, there was Evil and Good and we were good.

        And in many ways we were good. But we aren’t now. Now we condone torture and there’s no going back to the happy days of yore. It is the difference between innocence and chastity: innocence is mere lack of experience, chastity survives contact with temptation. We do not trust our courts to try these terrorists, thereby promoting these unwashed criminals to warrior status. We didn’t even really understand the terrorists when we had them in custody. And now we’re right back to where we were in the 60s and 70s, having learned nothing from the extrajudicial murders and connivance with Devils We Knew back then.Report

        • Avatar Kolohe in reply to BlaiseP
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          says:

          You conflate too much, to the point of nonsense
          This is one kitchen utensil accusing another kitchen utensil of having his own pan-chromatic spectrography. To try (unsuccessfully) to be real short in what is an off-topic diversion
          1) Massoud *was* the closest thing to being a good guy in all this
          2) The USSR left Afghanistan in 1989
          3) The Berlin fall fell in 1989, the USSR in 1991, this radically altered what the CIA and the entire US govt did all over the world.
          4) With perfect 20-20 hindsight what we should have done was support the post-Soviet regime, particularly after the ‘soft’ revolution in 1992 http://en.wikipedia.org/wiki/Mujahideen_Victory_Day when they stopped being explicitly Marxist. But we didn’t. We didn’t get involved in a lot of civil wars in the 90’s. The Taliban themselves were, and still are, just garden variety third world assholes. We hate some of them, are grudging allies with others, and don’t give two shits about the rest. It was support to Al Qaeda that got the US Goverment’s attention, and the 9/11 attacks that got the US population’s attention. Otherwise, they’d still be there.
          5) We built a whole lot of overpriced overdone stuff in the Cold war. We’re even still paying for some of it – witness the recent Supreme Court case on the A-12.
          6) The Chinese didn’t build a large arsenal of nuclear weapons not because of some inscrutable wisdom and long term thinking but because a) they started 20 years late b) were a much poorer country, esp with the economic & political turmoil associated with the Great Leap Forward and Cultural revolution. Of the US, Russia, and China, China is the one to have conducted a nuclear test most recently.
          7) The cold war did have standard set piece conventional military battles (Korea, and yes Vietnam, particularly in the end game). The crisis regarding the Berlin airlift shows there was a standard military aspect of a larger political struggle from the very beginning. The Islamist threat, such as it is, is entirely asymmetric from a Western point of view.
          8) Last, Osama was indeed handed a gift by the Bush administration in the invasion of Iraq. If you look at Osama’s strategy, it actually focuses on the ‘far abroad’ rather than enemies closer to home (in historically Muslim countries). It’s a view that many of Osama’s colleagues and followers disputed, and wound up doing their own thing anyway. But the Bush administration’s epic strategic blunder post-hoc validated Osama’s grand strategy – even though conducting an insurgency in Iraq (or Afghanistan or anywhere else) is ironically not what Osama felt should be a main focus in his organization. But I strongly doubt the Islamists or anyone else can count on this level of miscalculation in the future from their enemies.Report

          • Avatar BlaiseP in reply to Kolohe
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            says:

            Heh, heh. Massoud the Martyr, Lion of the Panjshir. You’re living proof of why we’ll never make any progress. Shah Massoud was no better than any of the other warlords. As you say, a garden variety asshole. Just not a Pashtun asshole, but that’s a redundant phrase.

            Islamism is an existential threat because it floods into the lawlessness spaces. You make me laugh, talking about 20/20 hindsight. We have known of this threat since the end of WW1. The West has connived with dictators ever since, knowing this to be true, as the Ottomans had for centuries. The threat of Islamism is not so much directed at America as it is directed at the local people. We became a target when we began to connive with the dictators.

            Despite all the fearmongering from our government and the rah-rah jingoists, we still do not understand the scope and magnitude of the threat. The net result of our idiotic trifling in Iraq and Afghanstan has been the establishment of two more Islamic Republics. Iraq has degraded to the point where Maliki is for all practical purposes a Shiite Saddam. Freedom of the press is gone: journalists are again being jailed and their offices rifled by mukhabarat. Dissidents are again put in prison. The Kurds grow increasingly restive, the bombings and murders continue in the same dreary cycle. As Jay observed in Men in Black ” you’re everything we have come to expect from years of military training.”

            Wars have a curious way of becoming precedent for policy. Obama’s options are limited. As Lincoln found out in the Civil War, a moral mandate does not translate to military victory: these things resolve to generals and strategy and Lincoln went through a great many of them before finding Grant the Butcher. Even then, despite winning the war and freeing the slaves, the situation didn’t really clear up: Eisenhower had to send troops to Little Rock Arkansas. Even now, various defenders of the slavery proposition have the cheek to demand copies of general orders from the times.

            You can see where this is going. Once we go down the road to war, it becomes the modus operandi for all that follows. There is no insurgency in Afghanistan. Anyone who says we are fighting a counterinsurgency is either an idiot or a liar or both. We will not keep faith with our own principles. We have become torturers, our souls seared and scarred to the point where even the best of us are babbling about Good Warlords and Bad Warlords. The ordinary people of Afghanistan are crushed under what is truthfully called a civil war, but we will never call it that, as we refused and continue to refuse to call what is happening in Iraq a civil war. War begets only more war; we have been sucked into taking sides against our better judgment and all sound military and political strategy. We have made our beds hard and now we must lie in them.

            Our war against Islamism has only begun. We have plowed the ground with billions of dollars worth of high grade steel, to the point where it has become profitable to mine for shrapnel in many places. We have not made much headway on the hearts and minds approach to ideological warfare, a war which begins with a thorough and ongoing assessment of our own connivance with evil. We created the enemies we now face and we could just as easily unmake them, if we had the conscience and grit and resolve and honesty to admit where we have failed and where we have succeeded. It is a war we can win and must win, but it will not even begin until we understand the wars we are fighting and the enemies we are making.Report

            • Avatar Robert Cheeks in reply to BlaiseP
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              says:

              “Even now, various defenders of the slavery proposition have the cheek to demand copies of general orders from the times.”
              I sense a general withdrawal from polite discussion to school yard bullying. Actually, I’d very much like you to cite anywhere on this blog or in my published work where I’ve defended slavery. Always remember, it was your people who benefited from the slave society in which they lived, while my people were farming the Ohio Valley and making their own shine.Report

              • Avatar BlaiseP in reply to Robert Cheeks
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                says:

                It cannot be otherwise. He who defends the CSA must by definition defend the proposition of slavery. Perhaps in Bobbo’s Bizarro World, the institution of slavery was never part and parcel of the CSA and Button Gwinnett did not threaten to leave the Constitutional Convention if slavery was abolished. But in the real world, you know, the one where America became the great haven for slavery while the rest of the civilized world was abolishing it, slavery grew and prospered on our shores and Western Africa was devastated.Report

              • Avatar Amadeus1756 in reply to BlaiseP
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                says:

                I still say Fischer obliterates Kasparov. The Wolf pounces and punches–he handily dispatches his opponents and no one wins the mind games of chess better than Mr. Fischer.

                Deep Blue goes up in smoke by moves 7-8. Deep Blue was a cheater against Kasparov. What do you think, Jason? In case you didn’t know, our very Jason plays on a Grandmaster level. He could probably beat all of us at the same time!

                Now if we can just extract from whatever dimension he inhabits.Report

              • Avatar Jason Kuznicki in reply to Amadeus1756
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                says:

                Not remotely, Martin. I mean Wolfgang.

                At my best I was never more than an 1800 player, give or take. I’m way off that now.Report

              • Avatar BlaiseP in reply to Amadeus1756
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                says:

                The first eight moves are all mapped: get a copy of MCO and learn ’em. Fischer was an interesting player but terribly brittle. Tal was every bit his equal.Report

              • Avatar BlaiseP in reply to Robert Cheeks
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                says:

                Actually, it was Charles Pinckney and Pierce Butler of South Carolina who had the effrontery to present the Fugitive Slave Clause to Article Four of the Constitution.Report

              • Avatar dexter in reply to BlaiseP
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                says:

                Mr. BP, This is so far off subject that banishment is possible, but since that psuedo intellectual nazi sympathizer can be reincarnated more times than an evil hindi, I just have to try. I will merely change my avatar to nefas and rant on.
                There is a song by the Subdudes titled “My Soul” and everytime I play it I think of you. I am wondering if you have heard it and if so what do you think of it? Am I being silly, dense or merely romantic? Also, this is probably not what you want to hear, but your religious views gives me hope for christianity.Report

              • Avatar BlaiseP in reply to dexter
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                says:

                A proud soldier is what I claimed to be
                A broken man is the cold reality

                A fair summary of the problem.Report

              • Avatar Wolfgang in Pauper's Grave in reply to Robert Cheeks
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                says:

                Bob, I’m trying, I’m trying—but I always come to the same impasse–please time travel with me for a moment.

                Assume a Confederate victory, if you will. At what historical moment from 1865 to 2011, does an Emancipation Proclamation occur? What would motivate the Rebs to ever consider such a thing? To this day, there are very strong feelings about it, feelings that still strongly support slavery as a “state” issue. And with a deeply fractured Union/Confederacy, I have no idea how you think the passage of time would resolve this issue–time does not always heal all wounds–we probably would have been on our 3rd Civil War by now. What events, seen through your eyes, would need to happen that would effectively bring about the abolition of slavery? Do you, in fact, want that to happen?Report

              • Avatar Robert Cheeks in reply to Wolfgang in Pauper's Grave
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                says:

                Wolf, dude, I sense and honest inquiry!
                The answer, I think, is simply that had our heroic Confederate friends been able to establish a constitutional republic following the unhappy hostilities they would have quickly found that they did not have enough soldiers to guard the escape routes to the north that the African slaves would have employed. Further, in ten years or so, technological improvements in agriculture would have made the cotton picking slave outmoded. He would have turned north for employment and that would have, unhappily resulted in the Yankee slaughter of Africans (see the Draft Riots in New York) freed from Southern slavery. The bias and prejudice of the North was, perhaps, more virulent than it ever was in the South.
                Another scenerio is that the slaves would have engaged in revolution, won their freedom and fled north. You can imagine how they would have been recv’d by white workers having to contest the lower wages proffered by the freed slaves. Of course, this is stuff most historians don’t want to discuss.
                Another intersting speculation is that had the Confederacy won they would never have accepted the prespective of DuBois and would have embraced the teachings of Carver. The Southern black would have established his own society and competed with the whites. Economics is the great equalizer. My guess is that there would have been an economic commingling soon enough and it is very possible that under the tutelage of brilliant leaders such as Mr. Carver the southern black would have found himself, as a result of his own efforts, at the front of the table.Report

  3. Avatar tom van dyke
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    says:

    If Anwar al-Awlaki were in France or even Cuba, this would be moot. Certainly moot if he were on US soil. It’s a very one-off situation, or at least made pregnant by being at war with a stateless entity. It hits me more like Tokyo Rose. Would we bomb her? Sure. I guess.

    This is complicated legally, but may be more an academic, formal question than one of reality or genuine precedent. We’ve been proceeding as if we are at war with al-Qaeda; indeed, the only administration defense of the bin Laden whacking can be made on military grounds.

    We haven’t formally declared war on al-Qaeda although they have declared war on the US [I dunno if bin Laden’s 1996 fatwa is “formal,” though]. We don’t like declaring war, haven’t done it since WWII. A lot of these legal issues would be mooted if we had, like we did with the Barbary pirates.

    So, I think that the lack of concern by the public is because the public isn’t formal and legalistic as a whole, and the reality is that bombing Tokyo Rose isn’t the same thing as assassinating domestic political enemies.

    This is one slippery slope argument that has no traction, as it were. 😉

    ________________

    As for the repeat of the boilerplate indictment of US foreign policy over the past century, it doesn’t seem quite germane here. But I don’t want to spoil anyone’s fun. Rock on.Report

    • Avatar Jason Kuznicki in reply to tom van dyke
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      Sure we would kill Tokyo Rose, if she existed. She was fictional, you know.

      But would we trash our judicial system to do it? Never. We’d just kill her, and then put the burden of justifying that act on the killers. I’m sure they could bear it and would do so admirably.Report

      • Avatar tom van dyke in reply to Jason Kuznicki
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        says:

        I’m not good with this either, Jason. But I don’t think it’s a slippery slope to domestic political assassination either. You yrself present how the legal world and the real world are not in perfect overlap.

        I have heard the argument that torture must be illegal, but if there ever is a genuine ticking bomb, some brave soul must “take one for the team” and do it anyway. This has a certain logic to it, and a certain absurdity. But that’s reality, logical and absurd at the same time.

        Everything doesn’t fit into the nice legal boxes we’ve prepared for them. In this case, we have a stateless entity making war on us, and the technology to do something about it. Reality has outpaced law. What would be most absurd is not doing anything about it when you can.

        I’m think the American public likely recognizes the conundrum, and has decided not to tie itself into knots about it. Terrorism is a criminal law issue. Except when that doesn’t work, so we send the Navy Seals into another country and wack bin Laden. Then we wring our hands about it a little, and life goes on.Report

        • Avatar Pat Cahalan in reply to tom van dyke
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          says:

          > I’m think the American public likely recognizes
          > the conundrum, and has decided not to tie itself
          > into knots about it. Terrorism is a criminal law
          > issue. Except when that doesn’t work, so we
          > send the Navy Seals into another country and
          > wack bin Laden. Then we wring our hands
          > about it a little, and life goes on.

          This is probably the “closest to the truth” summation of the current affairs we’re ever going to get.Report

      • Avatar Kolohe in reply to Jason Kuznicki
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        says:

        Is this to imply that the somewhat arbritary ‘in-group’/’out-group’ split of US Citizen/non-US citizen has some normative moral standing all its own? Because we did after all deliberate target and kill the non-fictional but also non-US citizen Yamamoto.

        (To answer my own question, yes, I think it does)Report

        • Avatar tom van dyke in reply to Kolohe
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          says:

          There’s a conflation of the legal and moral here that engenders unclarity. Trial by jury is an American political right, but not a moral universal. So too, Miranda and the exclusionary rule. They apply to US citizens and furriners on US soil, but that’s it.

          Further, there’s the war vs. law enforcement angle, which flip-flops depending on the exigencies, killing bin Laden or keeping Kuznicki and Greenwald off your back…

          😉Report

          • Avatar Simon K in reply to tom van dyke
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            says:

            No, that’s not right. Trial by jury is a right under US law. If I, as a non-citizen, commit a crime and then leave the country and wind up somewhere with0ut an extradition treaty, and the court tries me in absentia I still get a jury trial. If I commit a crime against a US person while overseas and they sue me in US court, the same applies. If I commit a crime that’s neither or US soil nor against a US person, the US has no jurisdiction.Report

        • Avatar Barry in reply to Kolohe
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          says:

          “Because we did after all deliberate target and kill the non-fictional but also non-US citizen Yamamoto.”

          By using military intelligence to locate him on the battlefield, and using military assets to kill him, in battle.

          I’m getting sick and tired of people not understanding the difference.

          And if in the ‘War on Terror’ the whole world is ‘the battlefield’, until such time as Terror signs instruments of surrender on the deck of the battleship Missouri anchored in Terror Harbor, then we’ll spend the next several decades (at least) in a USA where the executive can act like a military dictator in more and more ways.Report

          • Avatar Kolohe in reply to Barry
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            says:

            “By using military intelligence to locate him on the battlefield, and using military assets to kill him, in battle.”

            In an operation codenamed “Vengence” just in case anyone doubted what it was all about.

            A serious question: this is also exactly how Bin Laden met his end. Was that equally kosher?Report

  4. Avatar Rufus F.
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    says:

    I’ve been asked repeatedly by people (or online avatars) if I would torture the guy in the ticking time bomb scenario and really it’s not that hard a question to me: yes I probably would; and I still want to live in a country where I’d be tried for it afterwards- that, to me, is the distinction.Report

    • Avatar tom van dyke in reply to Rufus F.
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      And Jean Valjean stealing the bread, Rufus. Law is an imperfect prism through which to view reality.

      I wonder if one’s epitaph were “He never broke the law,” we should see that as virtue or inertness.Report

      • Avatar Rufus F. in reply to tom van dyke
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        says:

        I wonder if one’s epitaph were “He never broke the law,” we should see that as virtue or inertness.

        Right, I understand that there are times when people break the law and it’s justified, and I hope to helll that they get a jury better than the one in Les Miserables. But, here’s the thing, I don’t think the answer to the imperfections of the law is to take one class aside and put it at their discretion to decide when to follow the laws and when they don’t have to. The danger I see with giving people the leeway to decide when interrogation is torture and when torture is necessary is that the number of situations in which they deem it to be necessary will tend to increase over time. Or, at least, that’s what’s happened in every regime that ever decided to let their interrogators “take the gloves off”.Report

        • Avatar tom van dyke in reply to Rufus F.
          Ignored
          says:

          Make no mistake, Rufus, I find the argument—and yours—completely valid, as it accommodates reality. It’s normative vs. lifeboat rules. Making lifeboat rules normative is of questionable wisdom.

          [In other contexts, it’s an avoidance of establishing what is “normative,” the rules drawn to accommodate the exceptions. But that’s another discussion, albeit related.]

          My core musing is that we’re all becoming legalists when discussing reality, and it’s too constipated a language for that. In the least, we must acknowledge that what is right or wrong, or good and not-so-good, cannot always be put in terms of legal and illegal.

          Which you clearly get.Report

    • Avatar BlaiseP in reply to Rufus F.
      Ignored
      says:

      As with most of these IEDs, these bombs simply repurposed munitions, artillery shells mostly. Once they were housed in the bunkers of the State. Changing fortunes put them in the hands of bomb makers. They aren’t detonated by timers. They’re detonated with contact plates.

      The only bombs with ticking timers are the people we’ve tortured — and allowed to live. Prison is the finishing school for the revolutionary. Food for thought: for all our cutting off of heads, the Hydra keeps growing more.Report

      • Avatar Rufus F. in reply to BlaiseP
        Ignored
        says:

        Oh yeah, I realize the scenario is still a hypothetical. Usually the question I’m askes is something like, “If you knew that breaking a bad man’s finger would save an innocent life, would you break that man’s finger?” Again, yes, I most likely would. And I’d want my peers to decide afterwards if it was justified. What I don’t want is to be told that it’s at my discretion to break fingers because I get the sense that, “it would save an innocent life” pretty easily morphs to “it might save an innocent life” to “might as well not take any chances”.Report

        • Avatar BlaiseP in reply to Rufus F.
          Ignored
          says:

          Kierkegaard takes it to its ultimate endpoint in Fear and Trembling with the Knight of Infinite Resignation. If by the death of the few, the many might be saved, would we do it? If by the sacrifice of an innocent child, the whole world might be saved, would we do it? Spock and the Needs of the Many. It’s all over human ethics: we do make these sacrifices and we make them all the time. Most medals for valour are awarded posthumously.

          Torture is never warranted. There is no ticking time bomb. It’s a Hollywood convention. Torture is wrong because it pumps bullshit into the intelligence pipelines. Extrapolation from the long-term good to the short-term necessity leaves us not with Jean Valjean and the loaf of bread, but with a choking victim, screaming in the last agonies of suffocation and a sin-soaked torturer/confessor who stains our nation with his vile benediction.

          Hic est enim calix sanguinis.Report

      • Avatar Barry in reply to BlaiseP
        Ignored
        says:

        I’ll add that I’ve never encountered somebody using the ‘ticking timebomb’ scenario to endorse doing something that they don’t like.
        Just as ‘the constitution is not a suicide pact’ (and many others), it’s an argument to allow scum to do things that they already wish to do.Report

        • Avatar BlaiseP in reply to Barry
          Ignored
          says:

          The sovereign argument against torture is strictly cynical and is taken from history. We were taught about the Witch Hunts of Europe in which tens of thousands of people were tortured and burned, most of them women. The transcripts of their trials are the most astonishing collections of weirdness imaginable.

          Anyone will say anything to avoid torture, even if it means he will be subsequently murdered. As such, no testimony taken from a tortured man is reliable.Report

          • Avatar Wolfgang in Pauper's Grave in reply to BlaiseP
            Ignored
            says:

            Mr. BlaiseP, I owe you an apology, sir. After reading your very interesting autobiographical sketch, it became apparent that you have had a very extensive background in the intelligence field and really know what the hell you are talking about-unlike me. I was very dismissive of the Plamegate, called her a pencil pushing, bureaucrat, a clueless blond bimbo who got her husband an assignment on an intelligence mission, a mission that he was wholly unqualified to be on. It actually, through his own testimony and various newspaper articles authored by him, conclusively proved that he was 100% wrong about Iraq’s attempt to purchase uranium ore–“yellow Cake”. It is clear and inarguable that Iraq, between the years. 1999-2001, SOUGHT to purchase. The bipartisan Senate intelligence committee report states inequitably that Iraq DID seek uranium ore from Iraq. To seek this yellow cake ore does NOT mean they made any purchases of it—also, there was considerable evidence that Niger was involved in illicit negotiations over the export of yellow cake to North Korea, Libya, Iraq, Iran, and China.

            Okay, enough of this. I do apologize because you were only sticking up for your friends who clearly, every single day of their lives, risk and sometimes give their lives to protect every one of us—You were, and are, a man of great integrity and I nothing but the highest respect for you and your work and I was way out of line in my comments about Mrs. Plame.
            The dirtbag in all of this is Richard Armitage who should have been executed at dawn for the lives he has ruined.

            So, sorry Blaise. A very sincere, sorry. Hope you accept but would understand if you didn’t. As the inimitable Bob would say, “hey love ya man,but….” but the face of evil are those evil Gnostics. I don’t know where he gets that–I find them enormously interesting, deeply spiritual, sort of like the Masons–compelling oddballs but what’s wrong with that?Report

          • Avatar Jason Kuznicki in reply to BlaiseP
            Ignored
            says:

            BlaiseP, I seem to have missed the biographical sketch. Could you send me a link?

            For what it’s worth, my own training as a historian is exactly what makes me convinced that torture is an unreliable intelligence extraction method. From the witch hunts of early modern Europe to the witch hunts of the gulag, torture produces what the torturer wants to hear, which isn’t necessarily what’s true. Also, the intelligence you don’t want to hear is often the key to being less wrong about the world.Report

  5. Avatar Robert Cheeks
    Ignored
    says:

    Yankee soldiers murdered, raped, and plundered with a certain regularity, and went mostly unpunished.
    Johnny Reb was under order of his gummint to obey the conventional rules of war and chivalry, and mostly did.
    It is very possible that either Father Abrahm or Sec. of War, Mr. Staunton, ordered the assassination of President Davis and his cabinet. Perhaps this explains for us when the moral breakdown began?Report

    • Avatar dexter in reply to Robert Cheeks
      Ignored
      says:

      I always thought our downfall into the moral morass we now dwell in was the fault of republicans and now Bob has proved it.Report

    • Avatar J.L. Wall in reply to Robert Cheeks
      Ignored
      says:

      Regardless of whether it was Lincoln, Stanton, or merely lower-ranking officers (Bob, since I assume we’re thinking about the same incident, do you remember the name of the officer, wasn’t he a colonel?), iirc, the Yankee government was pretty quick to separate itself from any rumors of such dishonorable conduct; today, however, we’re talking about a government that asserts it’s perfectly legal and why are even arguing about it, anyway, nothing to be ashamed of here. So while Lincoln certainly went a little overboard with the war powers stuff at times, I don’t know that THIS stems directly from it. At least not in the way you’re claiming.

      (At risk of taking over this thread with more Civil War discussion — what about the possibility that, had Davis’ states-rights flank not objected so loudly and/or effectively, he might have been able reach independence — but by taking the same extra-legal/constitutional steps, or steps very similar to those which Lincoln took in order to preserve the Union? He did, after all, claim the epitaph of the Confederacy was, “Died of an Idea.”)Report

      • Avatar Robert Cheeks in reply to J.L. Wall
        Ignored
        says:

        Mr. Wall, I was referencing the Dalhgren Raid, and the orders found on the body of young Col. Ulric Dahlgren. There’s a great deal of mystery and controversy surrounding the event. If true, and I’m inclined that they are, we have revealed the true nature of the regime.Report

        • Avatar Robert Cheeks in reply to Robert Cheeks
          Ignored
          says:

          Also, I find this sentence a delightful understatement: “So while Lincoln certainly went a little overboard with the war powers stuff at times, I don’t know that THIS stems directly from it. At least not in the way you’re claiming.” Er, at least the first part (Lincoln’s arrest and imprisonment of Vallandingham of Lisbon, Ohio comes to mind here). I’m actually not claiming anything. I THINK Lincoln or the Sec War ordered the murder of Davis and the cabinet, but maybe not.
          Could you re-phrase your last paragraph, I’m having trouble understanding what you mean.Report

    • Avatar BlaiseP in reply to Robert Cheeks
      Ignored
      says:

      When it comes to targeted killings in the American Civil War, the account of the massacre of Negro prisoners of war will never cross your lips, Bobbo. Spare us further rubbish about Conventional War and what the Gummint ought to do with prisoners. If ever there was a whitewashed tomb full of dead men’s bones, it was the Confederate States of America.Report

      • Avatar Robert Cheeks in reply to BlaiseP
        Ignored
        says:

        Bp, settle down. I’m here to hep you re-connect with your kith and kin.
        Of course, the murder of black soldiers was reprehensible. But, these events were isolated, occur in all wars (you’ll recall sundry masasacres in Vietnam), and unlike your statist Yankees were not, an apparantly unspoken policy, that adumbrated both the Nazis and the Stalinists.Report

        • Avatar BlaiseP in reply to Robert Cheeks
          Ignored
          says:

          Don’t you dream of ordering me to Settle Down. I know my kith and kin back to Maastricht in the 14th century. Any concession which is followed by “But” is no concession. The stated policy of the CSA was to murder Negro soldiers and that is exactly what they did.Report

          • Avatar Robert Cheeks in reply to BlaiseP
            Ignored
            says:

            Can you cite an order or directive issued by the Confederate general gummint in Richmond directing or approving of the systemic murder of freed black soldiers? I’ve not come across one after twenty years of various inquiries re: the late unpleasantness and if one exists I’d surely like to read it.
            Also, if you can cite a general order issued by any general commanding any of the field armies ordering the summary execution of freed black soldiers I’d like to see that too!
            My own understanding, appartently incorrect, was that the murder of freed black soldiers were isolated events.Report

              • Avatar Robert Cheeks in reply to BlaiseP
                Ignored
                says:

                Thank you and I agree, Gen. Butler was a war ciminal who should have been hung following the war.Report

              • Avatar BlaiseP in reply to Robert Cheeks
                Ignored
                says:

                The track record of the CSA at Ft. Pillow, Galveston, Murfreesboro, Port Hudson and Milliken’s Bend shows the policy was murder. Black soldiers and their white commanders were singled out, crucified, bayoneted and shot.

                On the 6th of June there was an engagement at Milliken’s Bend between about 200 negro troops and an overpowering force of rebels. A large number of the negroes were murdered on the field after they had surrendered. Some of them were shot. Some were put to death by the bayonet. Some were crucified and burned. Of those whom this last fate befell, several were white officers in command of the negro troops. And so at all points the work of butchery went on, culminating finally in the wholesale massacre at Fort Pillow, which is still fresh in the public recollection. The incident presented in one of our sketches —General FORREST murdering the servant of a Union officer—occurred about two years since, and is thus stated by Major-General STANLEY :

                About the middle of the summer of 1862, FORREST surprised the post of Murfreesboro, commanded by Brigadier General T. T. CRITTENDEN, of Indiana. The garrison was composed mostly of the Ninth Michigan and Second Minnesota Infantry and the Seventh Pennsylvania Cavalry. After some little fighting the troops were surrendered. A mulatto man, who was a servant of one of the officers of the Union forces, was brought to FORREST on horseback. The latter inquired of him, with many oaths, “what he was doing there? The mulatto answered that he was a free man, and came out as a servant to an officer—naming the officer. FORREST, who was on horseback, deliberately put his hand to his holter, drew his pistol, and blew the man’s brains out. The rebel officer stated that the mulatto man came from Pennsylvania, and the same officer denounced the act as one of cold-blooded murder, and declared he would never again serve under FORREST.

                Nathan Bedford Forrest would go on to found the Ku Klux Klan. I do hope you will admit Forrest was a war criminal, considering your gentle conscience is so outraged by Spoons Butler, but I will not hold my breath while you get around to that admission.Report

              • Avatar Robert Cheeks in reply to BlaiseP
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                says:

                I’ve never argued that there weren’t atrocities on both sides. It’s the nature of war, as you know first hand. My arugment has always been that it was the Lincoln regimes policy to injure and insult the white, Southern family. It was not the Jefferson administration’s policy to systemically murder captured blacks.
                The fact is yous support and condone the murders of defenseless women and children but I am hardly surprised that a modern would take such a position.Report

              • Avatar BlaiseP in reply to Robert Cheeks
                Ignored
                says:

                You have been given proof enough. For you, Pickett’s troops will always be marching forward toward that stone wall and the darkies will be dancing happily around the fire and banjos shall always plink out Stephen Foster tunes and the Stars and Bars shall wave forever over a South that would continue to abuse and lynch and systematically subjugate another race of people.

                The landscapes of West Africa, the country of my youth, is replete with the legacy of slavery. The white men didn’t actually capture slaves: they bought them, like so many catfish on a stringer. When it comes to the murders of defenseless women and children, the slavers absolutely destroyed Western Africa. Any semblance of political authority was gone. Their legacy remains with us today, in places like Sierra Leone and the Congo. People ask why Africa never advanced. The answer is the flip side of American slavery: the market thus created reduced Africa to a grotesque horror.Report

              • Avatar Robert Cheeks in reply to Robert Cheeks
                Ignored
                says:

                What countries in Africa, where European slavers did not practice their evil trade, advanced, in your opinion.
                Aren’t your Muslim friends continuing the African slave trade to this day?Report

              • Avatar Jason Kuznicki in reply to Robert Cheeks
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                says:

                If they were practicing the slave trade, Bob, that would make them your friends.Report

  6. Avatar Michael Drew
    Ignored
    says:

    not only may citizens sometimes be legitimate targets of war (which no one doubts), but the power to declare them such is absolute and unreviewable (which ought to be the stuff of dystopian fiction, but it isn’t)

    It’s true, it isn’t. Rather it’s the stuff of basic judicial restraint. You don’t have to concede that it is beyond doubt that citizens may from time to time be targeted in U.S. wars, but once you have, it is very difficult to get back to a place where we would reasonably expect to find courts reviewing the specific instances where it occurs. Don’t get me wrong: I find this frightening as well, and when the Awlaki inclusion on the targeting list issue first arose, I also assumed it must be clearly unlawful in some way. And indeed, by a relevant standard, it might be; it is indeed problematic that we can’t have a fully informed discussion of the relevant facts and legal standards.

    But the fact is that the matter was reviewed as far as the federal judiciary saw fit to review it (and may be reviewed further still? — I’m forgetting the status of any further appeal in the case at this point). Yes, it is absolutely Orwellian for the government to argue that the matter of whom it can kill in war when and where and under what further circumstances, to include U.S. citizens, is not reviewable by courts. But that fact that they argue this does not make it operative government policy. The courts are a branch of our government, and they have the power to toss this argument aside; moreover it is perfectly clear that, strictly speaking, the matter clearly is reviewable, should the courts be inclined to review it. And so we arrive at the crux of the problem, namely: they are not so willing.

    I mentioned a moment ago that coming into it, I had previously (a year or two ago) simply assumed this matter was open-and-shut: the government can’t summarily execute its citizens in war. Frankly, I hadn’t even thought any level of review short of arrest and conviction was even relevant to that. My view has changed. I am not at all sure now what is exactly the right legal analysis now, but if I were forced to lay my cards on the table, my current thinking runs in the direction that, if we accept that in a war the government may occasionally target U.S. citizens for killing (which I have come to reluctantly accept), then for most practical purposes it will do so without being held accountable by courts. This is because, from what I have read, it is simply the case that the courts as rule do not insert themselves in the specific decisions the Executive makes in the actual targeting of fire in wars. It’s just one of those things courts consider themselves manifestly poorly positioned, and unqualified, to govern, at least on the pre-hoc side of the action, and will remain so. A case of that nature also holds a U.S. citizen’s life is in the balance certainly raises the stakes for the outcome in the light of how much real protection the law gives to us as citizens, but it doesn’t (apparently) make much of a difference to courts’ assessment of their positioning and competence to review such decisions, even in such cases.

    I am not a lawyer or a scholar of these matters, so I attribute my change of view recently to being uninformed previously (or misinformed now). But I now understand courts’ reluctance to intervene in or even review the specifics of ongoing warfighting to have been a fairly well-accepted tendency among experts. And if it widely accepted that targeting U.S. citizens as part of warfighting is a conceivable legal action on the part of the Executive, then I wonder what judicial modality it is that those who say that such targeting is conceivably acceptable, but impermissible without judicial review, in the case of U.S. citizens had in mind to get to the belief that such review is not just proper, but in fact absolutely required in order to avoid arbitrary and potentially tyrannical executive uses of the power. It seems to me that, given the known proclivities of the courts, amounting to essentially an established jurisprudence on the question, if we concede that the Executive has the power to kill citizens in war, then we are conceding it has the power to do so substantially without prior review. Further, it seem to me that, if this is now clear to me, scholars of the matter ought to have been clear about it going in. But perhaps that is uncharitable, or again, maybe it’s now that I am confused. I’d like to hear how so, if that is the case.

    But if I am not wrong now (again? still? as always?) about all this, then are we sure we still want to concede that the Executive may assassinate U.S. citizens in war, knowing that we do not have courts on whom we can rely to review the circumstances under which he may do so (and knowing now that we never should have thought we did)? I’m not at all sure.Report

    • Avatar Michael Drew in reply to Michael Drew
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      says:

      I don’t know if my opinions have just departed from the (new) norm here so much that I’m considered an ornery crank-troll that no one wants to feed now (Goodness, what an honor that would be! #forreal) or what, but I honestly would like to be told why I am 1038% & 180 degrees wrong about this, if I am. Please, consider this an RFS: Request For Smackdown. Fire away. (This goes out in particular to all the lawyers in the crowd, y’all. Gimme some love, if you’ve got the time. Original work please, though. I know how to get to Greenwald’s house on my own. I been over there.)Report

      • Avatar tom van dyke in reply to Michael Drew
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        says:

        Mr. Drew, the miscreant in question is not on US soil, which complicates things. And again, we have the question of whether or not we’re at war. If so, does the SC have a say on whether the C-in-C should drop the A-bomb on Japan? The SC tends to lay out of C-in-C decisions under the separation of powers.

        In fact, the SC is loath to get in between the executive and Congress as well; that the target is an American citizen complicates things, but Congress doesn’t seem to want to press the issue. Therefore the issue is a political issue, which the courts prefer to lay out of.

        I would also think there’s a question of standing: who has the standing to sue C-in-C Obama over this? The SC needs a case to hear.

        As a related issue, we have the Boehner-Obama beef about Libya. How the SC would insert itself, I dunno. When some GOP congressmen [and a few Dems like Kucinich] tried to thwart Clinton in Kosovo

        http://en.wikipedia.org/wiki/Campbell_v._Clinton

        the [lower] court simply booted it for lack of standing.

        “The appellate court affirmed. It held appellants had ample legislative authority it could exercise to stop appellee’s war making, and thus, appellants lacked the power to challenge such executive action in court.”

        So unless Congress as a whole wants to go head to head with the C-in-C on this issue, absent a plaintiff [al-Awlaki or his survivors], the federal courts have nothing to rule on.

        I would say the situation is related to the bin Laden whacking. There are some law enforcement-or-military-action legal problems, but who has standing to sue? And who gives a shit about bin Laden or al-Awlaki anyway?

        [The last point is probably the key one in all this…]Report

        • Avatar Michael Drew in reply to tom van dyke
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          says:

          tvd,

          I’m mostly in agreement with you here. In fact, I believe standing was the deciding issue in Awlaki’s lawsuit, arrived at prior to the political question finding, though the judge (panel?) also gave what their view on the reviewability of targeting decisions would have been had they reached the question perforce. If I am not mistaken, that is. Also, I agree with you that, to my understanding, from the human rights lawyer’s point of view, the relevant question here actually is whether there is a war (in this case, non-international armed conflict) that the U.S. is engaged in in Yemen at this time, making the claim to be able to target any given person (U.S. citizen or not, civilian or not) absent an imminent threat of real violence misplaced. But that is amatter of international law, whereas the uestion of what protection the U.S. Constitution gives to U.S. citizens (as apart form other persons) outside the U.S. is a matter of domestic U.S. law. And as far as that question goes, I believe you are quite right that courts as a rule have steered well clear of reviewing executive decisions as to the use of force any time a president makes even a vaguely credible claim to be involved in military action abroad that he claims is functionally a war. We can believe courts ought to have established a precedent other than this, and indeed they could begin to do so at any time, but until they do, our wishing it were different does not change what is, in effect, the functional law of the land: the presidential ability to target combatants in war is, for most intents and purposes, not reviewable by courts (to the extent that past judicial behavior constrains future judicial behavior). I appreciate your input, Tom, and, again, I’m soliciting any explanation of why my understanding of the status of this kind of proposed review (within the context of a concession that the president might well be within his rights to order the targeting of a U.S. citizen in war, subject to such review) is fundamentally misguided.

          As to Libya and the WPR, I simply have no insight into the matter other than to say that if Congress wanted the thing shut down, it would be shut down. It’s not an important enough war to Barack Obama to shut down the rest of DOD over it, of this I have very little doubt.Report

          • Avatar tom van dyke in reply to Michael Drew
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            says:

            Mr. Drew, Kucinich was in on Campbell v. Clinton and is trying the same dead end again, suing the president over an “illegal” war. [This time with only 10 congresscritters and not 31.]

            http://www.politico.com/news/stories/0611/57032.html

            But as you put it, if Congress as a whole wants this Libya thing stopped, it would get stopped. Probably the same with the Awlaki thing, although tactics are harder to lasso than strategies.

            In either case, I prefer the SC stay out, as they traditionally do. If they get their fingerprints all over this, there is no separation of powers to speak of, only an elected gov’t that rules at the sufferance of an appointed and unaccountable [via election or recall] autocracy.Report

            • Avatar Michael Drew in reply to tom van dyke
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              says:

              Right. I didn’t have much of an opinion on WPR before this, but it does seem to me that it is currently being demonstrated to be something of a flawed instrument, if not a meaningless one. We are seeing that leaders in Congress hostile to the president can use it to essentially force him to fight wars illegally — even wars they want him to fight, as evidenced by the fact that Boehner has not taken steps to organize opposition leading to a threat to cut off funds, but has instead asked the president to please ask the Congress to authorize the fighting (so that they don’t have to do something unbidden that would help their political rival. That doesn’t make it unconstitutional (though it may be, depending what you think the powers of the President are), but it seems to make it in practice something of a dumb law. All this when the power to end wars like this — the only real such power, since no court actually has the ability (in the Hobbesian, Do-You-Have-The-Might [I! Have! THE POWER!] sense) to compel the president to desist from fighting an ongoing war (hence the reality no court will ever try to do so) already lies with Congress.

              I can see why Nixon vetoed this law. I can see why a less monomaniacal, power-mad president at an entirely different, calmer, more reflective time in history might have, too. But Congress Has. The. Power. To override vetoes. And to end wars as well, but that has very little to do with this instrument they overrode into law in the traumatized, politically riven context of post-Vietnam America.Report

              • Avatar Jason Kuznicki in reply to Michael Drew
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                says:

                We are seeing that leaders in Congress hostile to the president can use it to essentially force him to fight wars illegally.

                I’m sorry, but this is just a laughable example of liberal bias on your part. Libya was a war of choice. It wasn’t remotely forced. Constitutionally, Obama’s permitted choices were (1) ask Congress for a declaration of war or (2) don’t go to war.

                He could have done either, and he didn’t.Report

              • Avatar Michael Drew in reply to Jason Kuznicki
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                says:

                Then War Powers Resolution is unconstitutional. I didn’t mean to say that they forced him to fight the war. I meant to say that the WPR allows them to force him to fight it illegally, even though (I am convinced) most of them want him to fight it, or in any case to keep doing so now that he is. They’re asking him to ask them for permission, which they could clearly just give (or deny, if that is their preference, but it is not). It’s an absurd situation.

                No, they didn’t force him to fight the war. But they can force him to fight a war they want him to fight — illegally. I guess I should have italicized some other part of that than I initially did to make myself clearer.Report

      • Avatar Wolfgang in Pauper's Grave in reply to Michael Drew
        Ignored
        says:

        Mr. Drew–don’t you DARE think of splitting! The League has a most interesting collection of various activated brain parts that to lose one, would cause irreversible damage to the Whole.

        I’m am on record as saying I want to be the first person to get to “near death” whatever the risks. Until we get that weighty subject off our backs, we’ll be stuck in this Terra firma
        vehicle which would mean the Heaven’s Gate, Scientology crazies, bumble heads, would have complete neural control over the human race!
        You don’t want that, do you?Report

    • Avatar Barry in reply to Michael Drew
      Ignored
      says:

      “It’s true, it isn’t. Rather it’s the stuff of basic judicial restraint. You don’t have to concede that it is beyond doubt that citizens may from time to time be targeted in U.S. wars, but once you have, it is very difficult to get back to a place where we would reasonably expect to find courts reviewing the specific instances where it occurs. ”

      I’d really like to find US citizens being targeted in our wars (note: targeting enemy force or locations, and hitting US citizens by side-effect, is not the same thing).Report

      • Avatar BlaiseP in reply to Barry
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        says:

        Steven Ambrose has a strange oral history collected from WW2 veterans who captured an American boy from Oregon who had been sent back to Germany during the Depression and fought for the Third Reich. 22 defectors stayed behind after the Korean War.Report

        • Avatar Barry in reply to BlaiseP
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          says:

          “22 defectors stayed behind after the Korean War.”

          Absolutely inrrelevant.

          “Steven Ambrose has a strange oral history collected from WW2 veterans who captured an American boy from Oregon who had been sent back to Germany during the Depression and fought for the Third Reich.”

          (which I couldn’t find on Google, probably due to the difficulty of any search involving WWII).
          What does this have to do with anything which we’re discussing?

          If he had been convicted of treason, by a court of law, then he could have been quite lawfully punished. If the soldiers simply killed him out of hand, after discovering who he was, this should be filed under ‘killing of prisoners’.Report

          • Avatar BlaiseP in reply to Barry
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            says:

            That’s just silly. If a bomb lands on an enemy installation where a defector has taken up residence, he’s fair game. For all practical and legal purposes, a defector is considered equivalent to an enemy.Report

            • Avatar Wolfgang in Pauper's Grave in reply to BlaiseP
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              says:

              I’d also agree.

              Is a dead mass murderer ever bad whether killed by a lion or a drone?

              Under these circumstances, I don’t understand the frenzy and hoopla surrounding the killing of known terrorists. I’m just a good vs. evil simpleton when you really get down to it.

              If anyone can provide a legal or logical reason why we should not engage in such warfare, I’d love to hear it. Up this point, I have yet to.Report

              • Avatar Jason Kuznicki in reply to Wolfgang in Pauper's Grave
                Ignored
                says:

                If it were simply killing, on a battlefield, no problem.

                If it were killing incidental to a struggle during a law enforcement operation, no problem.

                The targeted killing order goes much further as I understand it. Under such an order, al-Awlaki can be killed in any context at all. He could then turn himself in peacefully — and then the authorities could decide “well, let’s just not have a trial.”

                And then they could kill him.

                I for one don’t think that’s right. If it’s not a battlefield or a violent struggle, then a citizen, of all people, gets a fair hearing in court. Even if he is a loathsome terrorist. Any efforts to convince me that he is extra-super-loathsome won’t further your point, either. They’ll just convince me that we have even less to fear by trying him. If he’s that bad, a jury will see it too.Report

              • Avatar Wolfgang in Pauper's Grave in reply to Jason Kuznicki
                Ignored
                says:

                Then we get into an endless discussion on what the definition of a “battlefield” is.

                Every square inch of this planet is a battlefield for the Jihadists. Nothing is sacred nor is any life sacred to the beheaders. If you have al-Awlaki within the cross hairs of your scope, it’s see you later. The risk of him getting away is far too great and not worth taking.

                From a legal standpoint, the rights enumerated in the Geneva Conventions do not apply to terrorists for obvious reasons, the biggest one being they purposely and deliberately target unarmed civilians. They were not signatories to any of the Geneva Accords. They do not wear any recognizable clothing that would distinguish them from civilians and in fact make every effort to blend in with civilians und so weiter. You know the rap.
                A very interesting and funny thing happened in your comments, Jason. I’m not making this up.

                You: “Al Qaeda? Criminal gang. Not an existential threat. Think Baader-Meinhoff or the Manson Family.

                Well, guess what? Charles Manson was among the people Bernadine Dohrn and Bill Ayers DEDICATED their book to!!!!! Bitter irony, to be sure. Very few people are aware of that priceless little factoid.

                Any chance you could write a review of new chess movie, “Bobby Fischer Against The World”?

                It would be great review.Report

              • Avatar Wolfgang in Pauper's Grave in reply to Jason Kuznicki
                Ignored
                says:

                Jason, I love your style of writing, and think you’d be especially good writing on chess, and Fischer??? It would be a definite, “BRAVO” piece!

                Promise, no more bugging you about this subject.Report

  7. Avatar Scott
    Ignored
    says:

    “When can the executive, acting alone, lawfully kill a citizen?”

    I think Anwar al-Awlaki fits the bill for someone that really needs killing.

    “Worst of all, it’s a type of power completely unnecessary to fight even truly existential threats against the American people and their government. If we didn’t need this procedure to fight the U.S. Civil War, why do we need it for al-Awlaki?”

    Since when was Anwar al-Awlaki and his ilk an “existential threat?” Last time I checked, the War of Northern Aggression was fought in most part by soldiers in uniform on a field of battle that didn’t target civilians. Trying to compare the two is quite pathetic.Report

    • Avatar Jason Kuznicki in reply to Scott
      Ignored
      says:

      Since when was Anwar al-Awlaki and his ilk an “existential threat?”

      I think Scott’s forgotten how September 11 Changed Everything. That means the discussion’s over, and I win.Report

      • Avatar Scott in reply to Jason Kuznicki
        Ignored
        says:

        Jason:

        Is that your way of admiting that you can’t back up what you wrote? Anwar has concrete ties to several terrorist attacks, such as Major Hasan, the underwear bomber and the printer cartridge bombing attempt.Report

        • Avatar Jason Kuznicki in reply to Scott
          Ignored
          says:

          No, it’s a way of asking you to get your story straight. Here’s mine.

          The Civil War? Existential threat.

          Al Qaeda? Criminal gang. Not an existential threat. Think Baader-Meinhoff or the Manson Family.

          The usual conservative story is that al Qaeda is an existential threat. But even so, if we fought the Civil War without executive attainder, I’m sure we can deal with this other, so-called existential threat without resorting to it.

          Given though that you seem to agree with me — that is, that al Qaeda isn’t an existential threat — I’m very puzzled why the extraordinary measures. Sure, al-Awlaki needs killing. Fine by me, if it happens in the course of ordinary, duly authorized military operations. But if he walks unarmed into the U.S. embassy in Kazakhstan, the appropriate course of action isn’t to take him to the basement and shoot him.Report

    • Avatar Barry in reply to Scott
      Ignored
      says:

      “I think Anwar al-Awlaki fits the bill for someone that really needs killing. ”

      I can easily cough up a long list of people who really need killing, just by taking a list of major GOP politicians and talking heads.

      One of the basic principles of US law – is that the executive can’t just say ‘he needed killing’.Report

  8. Avatar Pat Cahalan
    Ignored
    says:

    Someone needs to explain to me why the American Civil War is sometimes bandied about as the “War of Northern Aggression” when by all accounts it was agents of the secessionists that fired the first shots.

    It doesn’t count if you fire them inside territory you claim as your own?

    I’d also like Bob to eventually explain how the war was a response to Lincoln’s agenda (something he’s mentioned here several times) when Jefferson Davis was inaugurated before Abe was. Kinda presumptive, ain’t it?Report

    • Avatar Jaybird in reply to Pat Cahalan
      Ignored
      says:

      If you’d like to see one theory, it’s by Mencius Moldbug. It’s not provided as “here’s something that I read and I agree with!!!” but as something that provides one theory for why the American Civil War is called what it’s called by some.

      http://unqualified-reservations.blogspot.com/2009/03/gentle-introduction-to-unqualified_15.htmlReport

    • Avatar Robert Cheeks in reply to Pat Cahalan
      Ignored
      says:

      Pat, I think there’s as many scenerios about who fired first as there is about why the whole she-bang started.
      Re: “The War of Northern Aggression” the answer is rather simple. The South was merely exercising its ‘right’ to remove itself from a voluntary compact (the Union). It not longer saw said Union as a political benefit and determined to establish its own constitutional republic (of course the enslaved Africans would mostly not be permitted to participate as free citizens).
      Mr. Lincoln could not tolerate the South acting on its ‘rights’ as states in secession and invaded the South in order, not to free said African slaves (according to Mr. Lincoln’s public comments at that time) but rather to secure imposts and duties that he saw as standing obligations of these Southern states. Thus, we have “The War of Northern Aggression.”
      Later in the war Mr. Lincoln, following Mr. Bush and Mr. Obama, told the people that the real reason he started the war was to free the much abused African slaves. He wanted to bring freedom and democracy to the South, just like Bush and Barry wanted to take democracy to the Middle East.Report

      • Avatar BlaiseP in reply to Robert Cheeks
        Ignored
        says:

        Armchair warriors abound in these times. We can dispense with all of them: the historical record is clear enough on the subject. Everything John C. Calhoun ever said contradicts your beliefs about why the South seceded and everything Button Gwinnett said at the Constitutional Convention did as well. The South was intent upon maintaining its slave-based economy: it seceded upon that basis.Report

      • Avatar Pat Cahalan in reply to Robert Cheeks
        Ignored
        says:

        > Re: “The War of Northern Aggression” the answer is
        > rather simple. The South was merely exercising
        > its ‘right’ to remove itself from a voluntary
        > compact (the Union). It not longer saw said Union
        > as a political benefit and determined to establish
        > its own constitutional republic (of course the
        > enslaved Africans would mostly not be permitted
        > to participate as free citizens).

        I’ll accept that in theory. Let’s just say I ignore motive; let’s say motive is irrelevant.

        You’re proposing that in the collective that was the Union, states had a right of exit. I don’t see that anywhere in the Constitution, but let’s go with “it’s implied”, I’ll let you have *that* one, too.

        Obviously I can’t dissolve my marriage and lock the front door of my house and not let my wife inside any more. If I want a divorce, I’m somewhat obligated to participate in a amicable distribution of assets.

        So where did the secessionists propose this? At what point did they propose a peaceful separation of the Union? Because, quite frankly Mr. Cheeks, I don’t see it.

        And if I lock my wife out of the house, shout at her that it’s mine and that car she’s drivin’ is mine, too… and then start shooting at her when she tries to drive off in it, I’m pretty sure we’d all agree that the cops ought to be called, no?

        Even *if* I have a right to all that stuff, I have an obligation to participate *peacefully* in divorce proceedings and show it to be so. I don’t get to just call out, “it’s over, this stuff is mine, now GTFO”.Report

    • Avatar Barry in reply to Pat Cahalan
      Ignored
      says:

      Pat Cahalan June 14, 2011 at 11:20 pm

      “Someone needs to explain to me why the American Civil War is sometimes bandied about as the “War of Northern Aggression” when by all accounts it was agents of the secessionists that fired the first shots.”

      Because certain commenters here are, if not actual traitors, highly sympathetic to a particular set of traitors against the USA.

      Hmmmmmmmmmmmm……………….speaking of people who should be targeted………………………….Report

  9. Avatar Barry
    Ignored
    says:

    Robert Cheeks June 15, 2011 at 5:58 am

    “Pat, I think there’s as many scenerios about who fired first as there is about why the whole she-bang started.”

    Yes – there is the ‘Lincoln’s evil ninjas started it’, and many others. And then, as BlaiseP has pointed out, there’s the verifiable truth. Which, IMHO, is something that the people involved lived up to, and publicly admitted – or rather, boasted of.Report

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