Our Star Chamber


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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126 Responses

  1. Avatar North says:

    Somehow I don’t think this was quite the change Obama’s supporters had in mind. Typical for Obama’s hypercautious, defensive and non-confrontational administrative style. Quite a dissapointment personally. This was one area where I honestly thought Obama would have been preferable to Clinton.Report

  2. Avatar Jaybird says:

    Stop seeing it as “targeted assassination”. Start seeing it as “kinetic inevitability acceleration”.Report

  3. Avatar wardsmith says:

    So was he coerced?Report

  4. Avatar Plinko says:

    I have nothing to say except I couldn’t agree more and wonder how it is that so many people are willing to act as apologists for the subject.Report

    • Avatar Jaybird says:

      My theory is that we are alienated from our political process and this manifests itself as being either anti-anti-Republican or anti-anti-Democrat (or anti-anti-SOMETHING).

      It does no good to be for anything because no one will listen to you. (Seriously: think about your Congressional Representative. Have you ever even met him? Seen him in person?)

      The best you can do is be against the people who are against him.

      Maybe we’re alienated to the point where we can’t even be anti-anti-whatever. We’re stuck with three or four antis. Maybe that’s why the tea parties or peace rallies or wall street occupations are so novel.

      There’s just one anti.Report

      • Avatar Plinko says:

        I think you’re on to something here, though it sounds almost Freddie-like in concept, if not language.Report

        • Avatar Jaybird says:

          Well, my libertarianism owes quite a bit to Marx…Report

          • Avatar dhex says:

            it’s the sports bar.

            two men in a sports bar, each rooting for an opposing team. each team is made up of people he does not know, but feels like he knows. and all he knows is that as angry as the lousy playing by his team makes him feel, the other team is even worse.

            the teams, of course know him not. they interact with him only via money. his life is invisible to their actual game.Report

            • Avatar Jaybird says:

              Even if Orton sucks, it’s important to find out if a Broncos fan says this or if a Raiders fan says this.

              A Broncos fan says this because he wants the Broncos to be stronger.

              A Raiders fan is just taking joy in the sucking. He doesn’t care about football. He doesn’t care about sport at all. He’s a fucking Raiders fan. Maybe he should watch Georges St. Pierre if he likes cheating so much. OH WAIT THAT’S WHY HE WATCHES THE RAIDERS

              Hey, maybe you wouldn’t have so many concussions if you weren’t hitting so many guys in the knee. Bastard.Report

      • Avatar Stillwater says:

        There’s just one anti.

        And then it’s all in.Report

    • Avatar Mike says:

      The larger part is how many people are willing to act in completely bizarre ways and indulge in dishonest, convoluted philosophical gymnastics rather than see the situation for what it is:

      #1 – Al-Qaeda has declared war on the US. Numerous times. That they are not a state actor leaves them with no protections via the Geneva Conventions, and makes it difficult for a “declaration of war” in return since they are not a recognized state (nor ever, it seems, intend to be short of a “global khalifa”). However, they are a group that is definable, that shares the same goals, and who have publicly declared war on the US, leaving a de facto state of war in place.

      Necessary statement here: if someone declares war on you, your declaring war on them in return is a superfluous and unnecessary formality.

      #2 – Al-Awlaki left the US. He made very public statements renouncing association and citizenship with the US. These are mostly a matter of public record via news reports and other reports including direct videotape statements delivered via Al Jazeera and other media outlets.

      #3 – the “star chamber”, as you refer to it, is a panel that decides targets of military importance. Its “secrecy” is not total, as all deliberation records and intelligence records for it will be revealed in the normal course of declassification and FOIA requests – it is held secretly because each member of the panel is cleared to see classified information that reveals the identities of informants and information that, if public, would put intelligence agents and informants alike in jeopardy and give the group (Al-Qaeda) being monitored ways to know how, and by who, they have been infiltrated.

      Some of this evidence includes details of Awlaki’s involvement in planning terrorist activity.

      #4 – It is not a “conviction of treason.” As per the previous three points, it is designating someone a military target because they have joined a military force at war with the US and are now a person of significant authority in that military force.

      I have yet to see a reasoned, thoughtful response to this that does not involve someone going off the rails and sputtering about how this means “the government could order you killed at any time for any reason.” Technically the government could do that now anyways. After all, there are events like the Whiskey Rebellion or even the Civil War, or various times when the US has taken down crazed “militia” groups within our own borders using SWAT teams and snipers. Sometimes, it goes well and nobody dies, like the generally-peaceful raids of various FLDS compounds over the past few decades. Sometimes, it goes horribly wrong and we get a David Koresh situation. Sometimes it’s in the middle, someone gets sniped, the rest of them realize how serious it all is and give up peacefully.Report

      • Avatar wardsmith says:

        Mike, every word you’re saying is true, but it doesn’t stop this from being a sad situation overall. The frightening thing for precedent watchers is just what happens down the road when the “in” group becomes the “out” group.

        This whole thing is a camel’s nose in the tent kind of argument. Do we dare let /this/ camel get its nose under /our/ tent?

        After all, household chemicals can be made into a bomb by anyone who has watched episodes of MacGyver. So when they come into your house guns blazing and you were completely innocent, they just point to your bleach, Drano and an “improved” browsing history to claim you were a closet terrorist. Can’t happen or shouldn’t happen?

        The only thing that holds our democracy tent upright is strong tension on all sides pulling in what can seem absurd directions. That tension is good, hence the line on my gravatar that says “Dissent is the highest form of Patriotism”.Report

        • Avatar Jason Kuznicki says:

          It’s funny, the people most likely to roll their eyes when I say that “War always and inevitably hurts civil liberties” are precisely the same people who will point with pride to that very process.Report

        • Avatar Mike says:

          The government can probably “prove” anything it wants. Witness the current rush to try to kill Hank Skinner in Texas before the DNA tests come in to (possibly/probably) exonerate him.

          However, those are abuses by individuals, not to be confused with “abuses by the state.”

          As for the rest – IF you’re a farmer and you’re ordering large quantities of fertilizer, nobody will blink. If you live in a condo in downtown, maybe someone should notice?Report

          • Avatar Boegiboe says:

            To the extent that individual abuses the power they have due to the existence and authority of the state, the state is at fault. The state should act quickly and firmly to rectify the abuse, or it is corrupt.Report

        • Avatar Tom Van Dyke says:

          Mr. Smith, the Posse Comitatus Act already prohibits military action like this on US soil; your slippery slope is not germane here.

          However, those are abuses by individuals, not to be confused with “abuses by the state.”

          Mike gets it right here, and underlines my reservations about “panels,” which by their institutional nature will not be held accountable.

          King David sent Uriah into battle because he wanted to nail his wife Bathsheba. This was an impeachable offense, and perhaps we should leave it that way. It’s doubtful a “panel” would be as vulnerable to justice. It’s on the president’s head.Report

          • Avatar wardsmith says:

            So when Hoover sent MacArthur and his troops to empty the tent city called Hooverville, that was just a police action correct? Johnson sent tanks and machine guns into Detroit in 1967 to help Governor Romney (the senior) with a riot no? He also “federalized” the national guard in Arkansas and even sent in the 101st Airborne to defend the right of 9 black kids to go to Central High. Slippery slope indeed.

            I too agreed with Mike. Unfortunately abuses by /powerful/ individuals carry enduring repercussions. Even the wrong thing done for the right reasons (see Johnson above) establishes the precedent for the wrong thing to be done for the wrong reasons by the wrong guy who doesn’t have the right moral compass.Report

            • Avatar Tom Van Dyke says:

              Mr. Smith, I admit ignorance of the legal particulars behind the incidents on US soil you mention: there are legal exceptions to the Posse Comitatus Act that perhaps were met.

              Blowing someone’s ass up with a military drone isn’t one of them, even if he does need killin’.Report

              • Avatar wardsmith says:

                Bush Jr. was criticized during Katrina for not doing more. One of the first things he tried (and failed) was to have Posse Comitatus set aside so he could send in federal troops to help. A certain party we shall not name refused, they knew further suffering by Katrina victims would help them in their midterm elections – they were right.Report

              • Avatar Tom Van Dyke says:

                I’m losing your point in the tall weeds, Mr. Smith, sorry. Military drone strikes are illegal in the US, would be my point here; the rest is digression.Report

              • Avatar wardsmith says:

                TVD. They won’t need to use a drone, they could use an M-16. Would that make one any less dead? They could also use those “drones” for ubiquitous surveillance – no hellfires or mavericks required.

                Note that I’m not really disagreeing with you (although my time here at the League won’t be complete until I’ve managed to disagree with everyone at least once – even those I normally agree with). I’m just fleshing out the issues as I see them. From a legalistic viewpoint it is all about precedent, which is why the legal eagle types are always quick to focus on same.Report

              • Avatar Tom Van Dyke says:

                Is this discussion about legality? It careens from the constitutional to the moral to “rights” to legislation to whatever flower seems most promising after the last one gives out. Or as Dr Johnson put it

                “Truth, Sir, is a cow which will yield such people no more milk, and so they are gone to milk the bull.”


  5. Avatar J.L. Wall says:

    Well, just goes to show that, to quote Obama quoting Faulkner, “The past isn’t dead. It isn’t even past.”

    Oh, wait, what’s that? In Faulkner’s world the un-dead past either consumes the souls or breaks the will the live of everything its unstoppable path? Fantastic! I’ve still got the bourbon stored up from the last debt crisis shindig; I’m all ready for Zombie History.Report

  6. Avatar Burt Likko says:

    Jason — what if there were real, independent judicial review, but that review was also kept secret and non-public?

    Not enough? Would it be enough if there were appointed, adverse counsel participating as advocates for the targetted citizen, using the same evidence that was made available to the government requesting the authorization to kill? (Still a non-public proceeding.)

    Still not enough, what if the government had to make a demonstration to the independent judicial court of what attempts had been made to apprehend and return the citizen to the U.S. for criminal prosecution here? (Again, a non-public proceeding.)Report

    • Avatar DensityDuck says:

      Burt, you’re assuming that having the officers of our representative government be selected by free and open elections is sufficient to imply that we have faith in them to exercise good judgement on our behalf.

      I mean, duh. Who actually believes that?Report

  7. Avatar Mike Schilling says:

    Absolutely but, once again, we’ve had this for the past ten years:

    kidnap torture murder
    Americans yes yes
    Others yes yes yes

    Filling in the sixth box is a bit late to say “And now, we’re fished”.Report

  8. Avatar Michael Drew says:

    I agree with every word. Where we’re at war and the president finds someone engaging in said war, as you acknowledged last time, he can order him killed without any sort of review. This is the Commander-in-Chief power, and its individual uses in unambiguous wars will never be reviewed by any court. The unaccountability of that power is self-apparent, and the power is fully established and not novel in any way (I won’t say it’s uncontroversial, but it’s utterly unremarkable to anyone who can look at the actual legalities).

    But that doesn’t mean that either all those conditions apply here, or that nothing is novel here. The fact that some level of new process has been set up approve these targetings means that the administration understands that this is not a traditional war for the purpose of the Commander-in-Chief power. They understand that this is an expansion of that power for that reason, and since this is clearly the ultimate power of powers, to me it’s beyond obvious that they should have abhorred what they’ve done here. In a war, if someone is found to be engaging in it, he should be identified and targeted by traditional means, or not at all. What has been set up here is essentially a structure that will now have as its functional purview the seeking out of American citizens in particular to target for “capture or kill.” That’s all this new process can be expected to turn into: it’s clearly a new quasi-legal regime of sorts that exists outside of our traditional Constitutional structure or court system whose only purpose is to identify American citizens who can be killed. It’s our Star Chamber.

    I’m in favor of the president’s power to kill people in war, including traitors. Traitors must be tried according to the constitution if captured, but they can be killed if they are found on the battlefield. In that sense, the president’s claim to have this power is not fundamentally abhorrent to our system. What is abhorrent is that he clearly does not feel all these conditions actually apply in this instance, so additional process is necessary to make the power accountable. He is clearly uncomfortable claiming straight-up that the conditions we actually face fully realize the definition of war. But if the conditions don’t fully apply, then the power doesn’t exist, and this new bit of process is an expansion of power of the most consequential nature, which is guaranteed only to expand in time.

    The only problem with admitting that we are not in a war, however, is that our government’s claim to that end is already under serious strain from the international legal system. He cannot very well admit domestically that we are not in a war for the purpose of the ability to kill American citizens, while retaining the claim that we are in a war for the purpose of killing other people. The claim and the justification goes poof. Now, there is still the argument from self-defense under the UN Charter, Chapter VII Article 51. That, too, is under strain, though perhaps not as much as the claim to be involved in non-international armed conflict. Nevertheless, dropping the claim to be involved in a war would be a major blow to its system of legal justification for the approach to fighting terrorism at which it has been so grimly successful.

    If we are in a war an American citizen is engaging in that war as a belligerent, then, yes, the “president” (meaning the military) has the power to kill that person. I’m not prepared to say that a court will never rule on the question of whether we are at war in a given instance, as I am that they will never rule on individual actions of a president once the fact of the war is established, but I am prepared to functionally concede that they are very unlikely to. So this means, that, yes, the power extends to whatever the president concludes is a war, up to the point where he might be intervened against in such determination by officials close to him (whether by de facto coup or mass resignation, or some other form of resistance). But these facts of unaccountability are not novel to this situation. If the president believed all this about Al-Awlaki, he should have simply exercised the power that is reserved to him for such situations: it was not in question. But he should not have instituted a set of procedures that amount to a new legal structure that exists only for the purpose of authorizing these actions in cases where none of the requisite determinations can be made in a good faith. That can only be disastrous.Report

    • Avatar trizzlor says:

      Thanks for stating this point again so clearly. These threads seem to illicit two parallel concerns: (i) weather the commander in chief can ever issue a capture or kill order on a US citizen during a war; and (ii) weather this is the kind of war where such an order can be issued. It’s good to decouple these two points as they’re equally heavy.

      Anyway, the thrust of you argument seems to be – “He is clearly uncomfortable claiming straight-up that the conditions we actually face fully realize the definition of war.” – and I’m not quite sure you’ve offered evidence to support this. The thing is, we are engaged in an actual traditional war in Afghanistan (and to some extent still in Iraq) with an enemy that is, at least in part, collaborating with people like al-Awlaki. From that position, the killing of al-Awlaki is analogous to killing an American-turned-Nazi collaborator in northern Africa circa 1942. At the same time, we are engaged in a “war” on terrorism, with organizations that also happen to include people like al-Awlaki. This “war” was not authorized by congress (arguably) and has no defined battlefield nor end-point. Obviously it’s important to make a distinction between those involved in the war and the “war”, but the mere fact that the military/DOJ has established a council to do so doesn’t mean we are not facing a defined war. Rather, it means that we are involved in multiple simultaneous military/intelligence operations – some of which qualify as war and some of which do not – and require specific adherence to their respective laws.Report

      • Avatar Michael Drew says:

        Trizzlor – thank you, good questions.

        The question of which of these various campaigns you mention are wars for the purposes of either domestic or international law is an involved question that I have some knowledge of having done some research, but which my opinions are of little interest on, since the terms of such inquiries are so recisely defined and there is such expertise to plumb all over the internet. Everyone can access that with a few Google or wikipedia searches.

        As to my evidence that the president is not sufficiently certain on those questions and on the clarity of Awlaki’s combat role my evidence is precisely the (reported) establishment of a quasi-official process for identifying cases like this that lie at the ambiguous border. To me, that evinces a clear recognition of the lack of clear authority to carry out this action under these circumstances. And what’s so damaging about it is that its quasi-official nature will mean that it will become not just precedent, but actually an established institutional feature of the permanent executive. The next president will rely on this same structure. But, because it has no basis in legislation of any kind, he’ll have free reign to modify it. Essentially, this has let a fearsome bronco out of the stable, and it’s just not going to go back in.

        This is not to say the president needs to make these decisions unaided and unadvised. He should consult with all staff counsel, counsel from the various defense agencies and services, members of Congress, counsel of the formal Departments (obviously soliciting OLC opinions, which I believe was done in this case), academics, etc. etc. in the course of making a decision like this. But it should all be done in the regular course of non-institutional advising that the president gets on all manner of problems. But then it must finally be the president’s decision alone, and given the meaning of the power that is at stake, he should never take this step when he is not clearly persuaded that 1) we are legally at war with the organization that the individual in question is a partyt to, and 2) the individual fits the traditional definition of who would be targetable in such a war under ordinary circumstances (understanding that under U.S. law, “ordinary circumstances” have never dictated that a person had to be holding a weapon in a field of combat to be a legitimate target of American fire under in a war in which the U.S. was engaged).

        A new, quasi-official, likely permanent decision structure should not be established for the purpose of identifying close cases in which an American citizen can be targeted for death in war, however, because it is not necessary to vindicate the power that the president already holds to do that under the Commander-in-Chief power when he makes a correct (if I’ve said good faith in the past, I’ve been insufficient: I think he has to be correct, and that on that basis intervention against him by lower officials would be warranted where he would do so incorrectly) determination that the necessary conditions apply (legal war, legal target), and because it is likely to become a permanent institutional feature of the Executive branch that will dilute the strictures that ought to be placed on this power (namely, that the president must make a correct determination obviously in good faith, on his own, that the conditions apply, since he is the only official granted this power by the Constitution).

        So again, my evidence that he has not made these determinations in a secure way is precisely the reports that, to me, look like exactly such a structure has been established. I concede that it is possible that this reporting creates a false impression that a durable institutional structure established for the purposes I describe when in fact none has been, and in fact what has been established is simply an effort to organize the advice I contrastingly described being received by the president. But Mark Hosenball is known to be among the best reporters in the national security space. Absent other reporting to the contrary, we are probably well advised to trust both his direct factual reporting and his interpretive characgerizations.Report

      • Avatar Kimmi says:

        Gotta nother coupla point fer ya:
        If the President may order such a decision, ought he to keep it a blasted secret?
        If the President orders such a task, ought he to be held personally (legally) liable?Report

        • Avatar Mike says:

          Why don’t we just be obvious about it:

          #1 – Would publicizing such a decision give warning to the enemy force targeted?

          #2 – Would publicizing such a decision, or the documents pertaining to why the decision was made, reveal the identity of and/or endanger the identities of informants and agents responsible for collecting such intelligence?

          As for personal, legal liability – you’re joking, right?Report

    • Avatar Tom Van Dyke says:

      If we are in a war an American citizen is engaging in that war as a belligerent, then, yes, the “president” (meaning the military) has the power to kill that person.

      Bingo on the above, Mr. Drew.

      If the president believed all this about Al-Awlaki, he should have simply exercised the power that is reserved to him for such situations: it was not in question. But he should not have instituted a set of procedures that amount to a new legal structure that exists only for the purpose of authorizing these actions in cases where none of the requisite determinations can be made in a good faith.

      The “secret panel” is bullshit if it includes any law enforcement officers—the FBI, the Attorney General. That would completely give the lie to this being a military matter.

      This is the C-in-C’s call, no panel to hide behind. No “panel” can be constitutionally empowered by him, it is his authority alone. The buck stops there.

      However, for the record, Article 2 Section 2 of the Constitution:

      The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments…

      What this means in the “Star Chamber” sense, I dunno. But it does seem that President Obama is constitutionally empowered to have the Depts of State and Defense on record w/their opinions. A “panel,” if you will.


      • Avatar Jason Kuznicki says:

        The president can get advice about military targets all he likes.

        The two really weak links here are (a) the determination that we are at war everywhere in the world simultaneously and (b) the nature of the order, which appears to have permitted killing him in any circumstances, including while not engaged in combat, or during the course of an orderly surrender, or even while in custody.Report

        • Avatar Mike says:

          We are at war with Al Qaeda. How do we know? They declared war on us.

          The fact that they are a distributed group, rather than claiming stateship somewhere, is unimportant to this, as is the unnecessary and relatively stupid screaming that we haven’t gone through the ridiculous formality of “declaring war back.”

          The order, as I understand it, was “capture if possible, kill if not.” That would preclude killing him in custody (unless he were to attempt violent escape) or during an orderly surrender. Can you provide ANY evidence to the contrary or are you just blowing smoke out your ass?Report

          • Avatar Jason Kuznicki says:

            From the defendant’s brief in the case:

            This case concerns the executive’s asserted authority to carry out “targeted killings” of U.S. citizens suspected of terrorism far from any field of armed conflict.
            According to numerous published reports, the government maintains lists of suspects—“kill lists”—against whom lethal force can be used without charge, trial, or conviction.

            The ruling was on standing and state secrets grounds, and did not contest that these kill orders could extend to places unrelated to armed conflict.

            I understand you find it preposterous that someone might be killed in custody, but that’s exactly what such an order might entail. If the whole world really is a battlefield, it’s not as if our jail cells are somehow exempted.Report

            • Avatar Creon Critic says:

              From the opinion (pdf),

              The United States has, however, repeatedly stated that if Anwar Al-Aulaqi “were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances.” […]

              Defendants [US goverment] have made clear — and indeed, both international and domestic law would require — that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be “prohibit[ed] [from] using lethal force or other violence against him in such circumstances.” See Defs.’ Mem. at 2; see also id. at 5, 13-14; Mot. Hr’g Tr. 15:6-8 (government counsel states that “if [Anwar Al-Aulaqi] does present himself, he is under no danger of the United States government using lethal force” against him); Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (explaining that “[i]n the case of armed conflict not of an international character,” a party to the conflict is prohibited from using
              “violence to life and person” with respect to individuals “who have laid down their arms”);


              • Avatar Jason Kuznicki says:

                And what exactly gives any reason for trust anymore?Report

              • Avatar Creon Critic says:

                I’m unclear who you mean in this question. Any reason for who to trust whom? Al-Awlaki to trust the United States or the United States to trust al-Awlaki? Or to trust in compliance with American domestic law or the Geneva Conventions?Report

              • Avatar Jason Kuznicki says:

                What makes you believe that Anwar al-Awlaki could possibly trust the entity that has said it can kill him anywhere, because the whole world is a battlefield?Report

              • Avatar Creon Critic says:

                Even if the government of the US would not have listened, he had opportunities to protest his innocence, to make counterclaims about the US having designated him as a terrorist. As far as I can see his rhetoric pointed in precisely the opposite direction – the inapplicability of US law, international law, and Western law to Muslims. From his statements he very much did not trust the US, the opinion,

                ‘Western ‘government, political parties, the police, [and] the intelligence services . . . are part of a system within which the defamation of Islam is . . . promoted . . . the attacking of any Western target [is] legal from an Islamic viewpoint.’ He went on to argue that a U.S. civilian who drew a cartoon depiction of Mohammed should be ‘a prime target of assassination’ and that ‘[a]ssassinations, bombings, and acts of arson’ constitute ‘legitimate forms of revenge against a system that relishes the sacrilege of Islam in the name of freedom.’

                As far as I can tell from the opinion, and I am not a lawyer, it was in al-Awalaki’s power to contribute to the standing case his father was attempting to make. The judge finds al-Awalaki’s actions and statements tend to weigh against him supporting his father’s legal action on his behalf, the opinion (cites omitted)

                not only has he failed to bring suit on his own behalf at any point over the past ten months — despite the fact that his life is allegedly at stake — but he has made numerous public statements condemning the U.S. judicial system, and has publicly announced that he has no intention of ‘surrendering’ to the Americans. Taken together, Anwar Al-Aulaqi’s actions and statements strongly suggest that his interests do not include litigating in U.S. courts.

                Also, reportedly, he had been given an opportunity for amnesty in 2009 if he denied membership in al-Qaeda, he refused to do so (der Spiegel).

                Finally, he could have trusted his father and his father’s efforts.Report

              • Avatar Tom Van Dyke says:

                Kudos to Creon Critic for doing the digging and hitting the books on this. He got his day in court afterall, as it turns out.

                As previously noted, had he surrendered to The Hague or some other such entity, the fun would just be starting. His defense of having a fear of the US system would have entitled him to put the whole Gitmo, etc. legal regime on trial. Not that I want to give al-Qaeda ideas or anything…Report

              • Avatar Creon Critic says:

                Tom Van Dyke, thanks. It’s weird, in a sense I don’t think I’m so far apart from the position Jason touches upon at 1:14, regarding setting up a system like the FISA court, or as Kenneth Anderson at Opinio Juris has suggested “formal legal revisions to Title 50 (CIA, covert action, etc.) and the oversight and reporting processes.” I’d be more comfortable with more scrutiny of this process. We have good reason to not just leave it up to our trust in the executive to get this right – as Jason has ably pointed out. And yet, I chafe at representations that present what happened with al-Awalaki as a bonfire of the civil liberties, with those giving the administration leeway as cheering a lawless, unaccountable, and arbitrary (non)process. I read the situation as more complicated, or at least more difficult, than “Our Star Chamber” and similar takes allow.Report

              • Avatar Tom Van Dyke says:

                Mr. Critic, your digging shows that the core issues were indeed addressed. See also Hamdi, where there was also an American citizen involved.

                One central premise here has been that al-Qaeda is a law enforcement problem. I cannot agree, hence everything that follows on legalism is already on a contested premise.

                Secondly, the absurdity that any US court could rule that an al-Awlaki can keep on doing what he’s doing with impunity because he doesn’t trust the US legal system.

                Huh? Talk about a slippery slope. No black man need ever surrender himself to the authorities, pleading [accurately] the historic injustice to blacks.

                Third—and I’m not sure about this—a FISA-type court for these things would still be a “Star Chamber” and vulnerable to the same criticisms, no? I’m not sure it would provide better outcomes, and it might be better to have the C-in-C morally and legally responsible than a faceless “court” that does indeed decree death—without further accountability due to the institutional character of its very existence.

                I do not think panels and courts should conduct war, and I do argue [and the Obama Admin is forced to as well] that this is a military matter, not a jurisprudential one.

                Al-Awlaki was not punished; he was stopped.Report

              • Avatar Mike Schilling says:

                Third—and I’m not sure about this—a FISA-type court for these things would still be a “Star Chamber” and vulnerable to the same criticisms, no?

                Much less so if it were run by an independent judiciary, and not wholly by the president and people directly answerable to him. You might recall the Bush Administration’s suggestion that exceptions to FISA would be approved by both the president and the attorney general. That had the same problem as the current death panel..Report

            • Avatar Mike says:

              I’m sorry, nothing in your link indicates any power by the US government to arbitrarily kill him if captured (or surrendered) and held in custody. So I shall just assume you’re blowing smoke out your ass.Report

              • Avatar Jason Kuznicki says:

                You are an incredibly quick reader.Report

              • Avatar Mike says:

                It’s only 12 pages. Most of which is fluffery about “who the parties are”, one page of which is nothing but address information, another of which is barely more than a title page. What’s your point?

                Mine is that NOTHING in the document you linked asserts anything of the nature that the US might have any legal authority – absent a violent escape attempt – to kill Al-Awlaki if he was already in custody.

                Either point to where you claim this is, or provide actual proof, or admit you’re blowing smoke out your ass. Please.Report

              • Avatar Jason Kuznicki says:

                I quoted you what I believed to be the relevant section. It went uncontested. The existence of the program is well-known, and the whole world has repeatedly been held to be a battlefield.

                I find it amazing, too, that the defenders of this policy are split between “oh no, they’d never do that” (i.e., you) and “pssh, they do crazy illegal shit all the time” (Mike at the Big Stick).Report

              • Avatar Mike says:

                I find it amazing, too, that the defenders of this policy are split between “oh no, they’d never do that” (i.e., you) and “pssh, they do crazy illegal shit all the time” (Mike at the Big Stick).

                My point is that the Obama administration – and for that matter, the Bush administration before it – have NOT ONCE claimed that they had the legal right to kill someone who was (a) in the process of surrendering to authorities or (b) already in custody. Indeed, quite to the contrary, above from the court’s opinion is quoted a relevant section confirming that the US’s brief indicates that they recognize no right to do so.

                Thus, every time you claim otherwise, you are simply and dishonestly kicking at a strawman. Nothing more, nothing less, and nothing relevant to the conversation at hand.Report

              • I’m not a defender of this policy i.e. a council that takes responsibility off of the President. That’s new and concerning. What isn’t new is the covert actions themselves and I would simply suggest that anyone pretending they are a new chapter (and one likely to devolve into a police state) just doesn’t understand their history.Report

              • Avatar Kimmi says:

                yawn. yes and no. everything is new under the sun too, once.
                The conviction-based-on-ability that exists under obama is unprecedented. It is far different from the “I don’t see nothing” under Bush.Report

  9. Avatar Will H. says:

    I think the depth of unconcern on this is in some manner a result of the very same principle played on smaller stages throughout our lives.
    No one really takes (much) (serious) exception to the police state anymore.
    It makes us safer; or to feel safer, rather.
    Makes me think that the US of A is full of a bunch of squeamish pvssies.
    But then, less than a week ago, I was in a room when a couple of Vietnam vets, one of which was captured and held in isolation for an extended period of time, were talking about 9/11.
    My main thought on 9/11 was, “My God! I hope I don’t have to keep hearing about this all day tomorrow!”
    Their concerns were very, very different.
    I kept my mouth shut.
    I do that sometimes.
    I don’t suppose you’ve noticed.Report

  10. Avatar George T says:

    The star chamber was inevitable when Obama used styrofoam columns as a backdrop as all hailed the new Caesar, or perhaps Apollo descended to Earth.

    Irritatingly, Obama campaigned against using the war model against terrorism, insisting we should go back to the civil law enforcement model. I think that would’ve been a mistake, but still it was a classic bait and switch, probably borne out of hubris and laziness more than anything else.

    I feel they’ve invented a horrible solution to a problem that didn’t exist. If a US citizen is acting as an enemy combatant, engaging our forces in war, then the soldiers don’t need to know or care that he’s a US citizen. At some point some marine rifleman or F-16 pilot will kill him in the course of war. If he’s a higher-up, perhaps hiding out in Yemen, the CIA will eventually get to him in the course of fighting terrorist networks. They don’t need to know or care that he’s a US citizen (although they’re bound to discover it in the course of sifting through intelligence data).

    None of these decisions need to involve the highest levels of the executive branch. Most of them needn’t extend much higher than the platoon level. If someone is presenting an imminent threat, the best judge of the situation is perhaps the sergeant on the ground directing counter fire or the CIA team pursuing a trail of information, just as most local law enforcement situations don’t require the direct intervention and control of the state governor.

    Plugging the chief executive directly into the decision loop on a case-by-case basis just invites them to use assassination to “shape the narrative”, eliminate people who make them politically uncomfortable, and basically play God. Plugging the executive in indirectly, via a star chamber of unelected, secret officials, just means that so much targetted assassination is going on that the chief executive had to delegate responsibility for all the secret kill orders, so as not to be overwhelmed by the sheer volume of people being targeted for elimination.Report

    • Avatar Mike says:

      as a backdrop as all hailed the new Caesar, or perhaps Apollo descended to Earth.

      Don’t worry. Your brothers from Stormfront are all predicting that “uppity nigger from Kenya” will be unseated in the next election anyways.Report

  11. Avatar Kolohe says:

    (I don’t have anything to say I just want to see the funky new gravatars that show up)Report

  12. Avatar Stillwater says:

    Good stuff here Jason. I agree with you that whether or not there is actual evidence against this guy is immaterial at this point – and not just because he’s already dead. The executive obstructed the request for a hearing to determine the grounds for the kill order. I really don’t understand why more people aren’t taking this issue seriously.Report

  13. What I find amusing is the belief that these kinds of actions are new. The U.S. has been engaged in covert ops since basically 1776. This was mostly spying until roughly WWII and the founding of the OSS. Since then we have conducted thousands of missions world-wide and assasinating an American citizen who was also a terrorist recruiter registers about a 0.5 on the severity scale.

    I’m sure everyone here is aware of the Special Forces. I just don’t think many of the people tut-tutting about this news understand just how robust those forces are and how many agencies have troops at their disposal that are intended to be used without the knowledge of the American public.

    Historically the Executive branch has had the final say on covert ops. The only real revelation (and it’s not really an unsurprising one when considering the president’s desire for self-preservation) is that Obama has punted this responsibility to a counsel instead of doing it himself.Report

  14. Avatar Katherine says:

    Yeah, this is deeply creepy. If they’re going to assassinate people, at the absolute MINIMUM the evidence against those people should be public and irrefutable.

    A committee that decides who the president can kill and doesn’t tell anyone why? That can’t be remotely constitutional.

    The reference to the Court of Star Chamber really brings things full circle for me, because my ninth-grade social studies class in 2001 was studying the English Civil War, and my first opposition to Bush came from drawing parallels between that and Gitmo and the US ignoring habeus corpus. Now Obama is being, if anything, worse.Report

    • Question: Should those proceedings be made public before or after the assasination?Report

      • Avatar Katherine says:

        Before. And there should be some chance to object to them and prevent the president from doing it if the populace or Congress feel the evidence is insufficient.Report

    • Avatar Katherine says:

      Just to clarify – when I say “public and irrefutable”, I mean along the lines of what we had against bin Laden – we know they’re in AQ, they’re high up in it, we have both powerful evidence and their own repeated admission that they were involved in them. And capturing them and putting them on trial is not a viable option.

      Otherwise, you go through the judicial system.Report

      • “…we know they’re in AQ, they’re high up in it, we have both powerful evidence and their own repeated admission that they were involved in them.”

        Wasn’t that pretty much the same situation with al-Awlaki?Report

        • Avatar Jason Kuznicki says:

          Two reasonable distinctions.

          First, I am relatively more willing to concede that Pakistan counts as a war zone for us. I’m not entirely sold on it, and I’m sure it’s news to the Pakistanis, but it’s a bit more solid than Yemen a t least.

          Second, Osama bin Laden was never a U.S. citizen.

          None of the distinctions we have been talking about here and on the other threads are huge in and of themselves, but together, they add up to pure lawlessness.Report

          • From a military and constitutional persepctive there was no crime commtted. An American killed in the act of trying to kill other terrorists is perfectly legit and the military would never admit to targeting Anwar al-Awlaki specifically.

            As for future operations, I think the U.S. citizenship thing is overwrought. The military routinely operates outside of military law and I see no reason to believe that won’t continue. If the American public really does want them to start playing by the same rules we have for our police..be prepared for a lot more violence to be done to our citizenry.Report

            • Avatar Jason Kuznicki says:

              If the American public really does want them to start playing by the same rules we have for our police..be prepared for a lot more violence to be done to our citizenry.

              That is not and never has been what I’m asking. The military may continue exactly as it has been. It neither needed nor was even helped by the assassination order, which as far as I can tell was merely an attack on civil liberties, a measure that neither empowered the military nor hurt our enemies in the slightest.Report

              • Maybe we should clarify. There is the traditional ‘military’ that killed Anwar al-Awlaki with an airstrike. Then there are the guys that operate behind the scenes and have done the real dirty work since 9/11 (and the work that has realistically kept us most safe). Some of those are military, some are CIA, some are NSA and some work for agencies that we have never heard of. They operate by a very different set of rules and I’m wondering if the intent is to bring them to heel.Report

              • Avatar Jason Kuznicki says:

                I can’t speak for anyone else, but my intent in writing about the issue is to prevent contagion. I don’t want this type of thing going any further.

                Here’s my nightmare scenario:

                –Feeling they have no choice but to run to the right of Obama, Republicans cheer the killing and call for many more done on similar lines.

                –With bipartisan support, lots more people are killed overseas, in places like Pakistan, the Philippines, Lebanon, and eventually Germany and France.

                –International protests ensue. No one gives a fish about international protests.

                –The whole world is a battlefield, so killings start happening in Los Angeles, Chicago, New York, and Peoria.

                –They aren’t just terrorists, either. They’re alleged drug dealers, alleged spies, alleged bad people of any description at all. And politicals — people in the Tea Party, people in Occupy Wall Street.

                –By now, it’s far, far too late to protest meaningfully, short of a violent revolution.

                This, what we’re looking at here, is a tiny particle of what dictatorships are made from.Report

              • “The whole world is a battlefield, so killings start happening in Los Angeles, Chicago, New York, and Peoria.”

                What makes you think that isn’t happening now?Report

              • Avatar Jason Kuznicki says:

                If it is, what makes you think it’s okay?Report

              • Because I prefer it to the alternative.Report

              • Avatar Jason Kuznicki says:

                Random, secret, unreviewable killings.

                But only by our guys!Report

              • Like I said – covert ops of the extra-judicial kind have been going on for the last 60+ years. Somehow we have managed to not devolve into a gestapo state. I think the people who make those decisions take it very seriously and protecting this country remains their first priority – not killing dissidents and protestors.Report

              • Avatar Mike Schilling says:

                “What are you talking about, 99? We have to shoot and kill and destroy. We represent everything that’s wholesome and good in the world!”Report

              • Avatar Mike Schilling says:

                Feeling they have no choice but to run to the right of Obama, Republicans cheer the killing and call for many more done on similar lines.

                The won’t do that because they feel they have to run to the right of Obama, they’ll do that because killing terrorists is popular.Report

              • Avatar Burt Likko says:

                That’s the nightmare scenario, all right. The taproot problem that could lead there is the expansion of the idea that We Are At War and therefore all things are legally permissible at all times and in all places under all circumstances.

                That’s why I called for the evolution of a way of addressing the security challenges we face that is different from, and possibly mediating between, criminal law and the free-for-all that is war; that’s why I asked you above if the inclusion of judicial review — with independent decision making and if need be an adversarial process, but protected from public scrutiny to protect sensitive security sectrets — would be something that you would find to be a reasonable, practical safeguard against abuses leading to this sort of nightmare scenario.

                I want to see an effective government responding to threats, but I don’t want to do it at the expense of my conscience. So you’re kind of like my Jiminey Cricket on this.Report

              • Avatar Jason Kuznicki says:

                I did mean to get back to you on these questions, and thank you for bringing them up again.

                We have the FISA court, which until the last administration seemed to work well enough. Things really touching on state secrets could be tried there, and my understanding was that it was both relatively effective and relatively free from abuse. It was at least duly constituted by Congress, which is more than I can say for the Death Panel.

                I don’t have complete answers here. I do know that state secrets aren’t necessarily kryptonite for criminal justice.Report

      • Avatar Stillwater says:

        when I say “public and irrefutable”, I mean along the lines of what we had against bin Laden – we know they’re in AQ, they’re high up in it, we have both powerful evidence and their own repeated admission that they were involved in them. And capturing them and putting them on trial is not a viable option.

        I think the parallels to bin Laden are stronger than you’re admitting. And as Jason mentioned, the relevant distinction is that AA was a US citizen. Also, when you say ‘we have powerful evidence and admissions’, do you mean the public, or the executive branch, or the judiciary, or …?

        Who’s ‘we’ here? And why does it matter,unless the determinations of guilt are made in a court of law?Report

  15. Avatar John Howard Griffin says:

    Isn’t there a more basic issue underlying this?

    Namely, is the war legal?

    If it isn’t, then the above issue is resolved: C-in-C powers do not apply.

    Perhaps, people think that it’s been going on for so long that it seems that either a) the war has always been legal, or b) it isn’t worth arguing about because it’s been going on for a long time and there’s nothing we can do about it.

    If it is legal, then the burden of proof has been lowered so far that the lowering of the burden of proof for assassinations of American citizens is a natural result.

    Of course, I am biased, because I do not think the war is legal.

    Your mileage may vary. Past performance is no guarantee of future success. Wash, rinse, repeat. Be kind, rewind. No animals were harmed in the writing of this post.Report

    • Avatar Patrick Cahalan says:

      When’s the last time we had a straightforward, by all the laws on the books national and international, legal war?Report

      • Avatar Burt Likko says:

        December 8, 1941 to September 2, 1945.Report

        • Incorrect! The OSS had a field day during WWII.Report

          • Avatar Stillwater says:

            Mike, I’m not sure I understand your argument in this thread. You seems to be saying that since the US government has acted illegally by targeting and killing US citizens for going on 60 years now that making that behavior legal isn’t a big deal.

            So, what was once illegal and done under cover can now be done legally and in the light. How is that not a big deal?Report

            • I’m saying that this isn’t a new phenomenon and the government is very good at doing this. The only real issue here is the council that Obama has appointed and the possible abdication of his executive responsibility. The question of legality is moot. Covert ops against American citizens are going to be conducted in a way that negates the legal complaints – this latest incident being a good example.Report

          • Avatar Burt Likko says:

            I’m sorry, I must have misunderstod the question. I thought this related only to the issue of a straightforward declaration of war (and thus changing the legality of a variety of executive actions during a state of war) by Congress.

            I agree with you that the OSS did a bunch of off the books stuff during WWII that looks fishy in retrospect even during wartime. Spying on U.S. citizens without warrants or cause, that sort of thing. The Japanese detention camps was validated by the Supreme Court but has since been condemned by history; pressuring our Western Hemisphere allies to do similar things to their own citizens was even fishier. And the list goes on.Report

  16. Avatar Boonton says:

    This is pretty stupid crap IMO. Sorry but that’s what it is.

    Targetting enemy units and commanders is not a legal function, its a military function which the Constitution entrusts to the Executive. There is NOTHING, NOTHING in the Constitution that says US citizenship is some magic immunity if you’re engaged with a foreign military force at war with the US.

    It would be one thing if Anwar al-Awlaki was killed by the US military when he was under the jurisdiction of the US or some other resonably competetant jurisdiction, but he wasn’t. He was killed conducting operations with an enemy force in a land under little or no legal control by any jurisdiction. The US has every Constitutional right to bomb his convoy as it did to, say, bomb Hitler’s bunker *even if* it was known that a member of the high command happened to have US citizenship.Report

    • Avatar Jaybird says:

      As awesome as Hitler references are, I’d like to point out that war had been declared against Hitler’s country.

      I’d also like to point out that Hitler preceeded Executive Orders 11905, 12036, and 12333.Report

      • Avatar DensityDuck says:

        So if you’re an illegal immigrant (or legal expat) in another country then you’re untouchable?Report

        • Avatar Jaybird says:

          No. Not at all.


          If you don’t have enough evidence to get past a grand jury, you don’t have strong enough evidence to kill a guy. “But what if all of the evidence is, like, Top Secret?”, I hear you ask as if we’ve never had a freaking trial where some of the evidence was Top Secret before in the history of the freakin country. “So have the trial behind closed doors and then have the judge and prosecutor say ‘Yep, he was found guilty.’ before you go off and kill him.” comes the answer.

          It’s like getting married and then having a baby.

          If you don’t do step one, you’ve missed quite a great deal that really changes the tenor of step two. “But what if it’s only a stupid little civil ceremony in a stupid civil office given by a woman of all people?”, you ask as if you don’t know that quite a few folks have gotten married under exactly those circumstances.

          If you don’t do step one then you’ve missed quite a great deal that really changes the tenor of step two.Report

          • Avatar trizzlor says:

            The idea that a country at war needs to individually charge and convict its enemies seems entirely unprecedented, no?Report

            • Avatar Jaybird says:

              I’m sorry. Has War been Declared?

              Allow me to retract everything I’ve said.Report

            • Avatar Jason Kuznicki says:

              The idea that a country at war needs to individually charge and convict its enemies seems entirely unprecedented, no?

              So does the idea that we must wage the entire war unarmed, except only for whipped cream canisters.

              Also much like that idea, it’s not something that anyone has heretofore suggested.Report

              • Avatar trizzlor says:

                Jason and Jay,

                (1) Congress authorized a military operation through the AUMF and under the War Powers Resolution
                (2) Hamdi v. Rumsfeld recognized Afghanistan as a theatre in that war as well as the Taliban and it’s collaboraters as an enemy in that war:

                If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan … If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

                (3) Hamdan v. Rumsfeld cited this as precedent:

                First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances

                Our focus instead is on the September 11, 2001 attacks that the Government characterizes as the relevant “act[s] of war,” and on the measure that authorized the President’s deployment of military force—the AUMF. Because we do not question the Government’s position that the war commenced with the events of September 11, 2001, the Prize Cases, 2Black 635 (1863) (cited post, at 2, 7, 8, and 10 (Thomas, J., dissenting)), are not germane to the analysis.

                If al-Awlaki had been killed after laying down his arms there would be recourse under the Geneva Convention to (rightfully) charge Obama with war-crimes. If the record no longer establishes that United States troops are in active combat in Afghanistan that would be news to me. So either you think that trials need to be held for our military targets, as I inferred; or you think an immigrant/expat in another country is no longer a legitimate military target, as DensityDuck inferred. What am I missing?Report

              • Avatar Jaybird says:

                When does the AUMF end, exactly?


              • Avatar Tom Van Dyke says:

                Since Congress passed AUMF, JB, when they unpass it. We have a) the executive and b) legislative in consensus, with the c) judicial butting out of politics and warmaking. I’m Constitutionally OK with all this. If you’re not, elect a new a) and b), and c) will probably be cool with it too.


              • Avatar Jaybird says:

                Haven’t we had several new b’s, at least one new a (who could reasonably have been expected to not have been in consensus on this one)?Report

              • Avatar Michael Drew says:


                The consensus endures.Report

              • Avatar James Hanley says:

                . If you’re not, elect a new a) and b)

                So if those who are not constitutionally ok with this are in the minority, then it’s constitutionally ok?

                Seriously, “if you think the Constitution is being violated, become the majority” is pretty pointless advice.Report

              • Avatar trizzlor says:

                Moreover, even if the AUMF does not ever end, the Hamdi opinion makes it clear that the “necessary and appropriate” clauses can be restricted depending on the state of conflict. That decision is talking about indefinite detention, but I think it’s just as applicable for any sort of “law-of-war” treatment.

                First, establishing American citizens who collaborate with the enemy as equally culpable to law of war treatment:

                There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.”

                Secondly, explicitly recognizing the dangerous possibility of an indefinite war:

                Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not far-fetched.

                Finally, establishing justification for law-of-war treatment during combat operations:

                It is a clearly established principle of the law of war that detention may last no longer than active hostilities … Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.


              • Avatar Jason Kuznicki says:

                What does Afghanistan have to do with al-Awlaki? He was killed in Yemen.

                I have relatively little objection to the AUMF being treated facially as a declaration of war. It’s not an open-ended declaration, however, and a declaration of war that authorizes military force everywhere and against potentially anyone is some exceedingly difficult constitutional territory.Report

          • Avatar DensityDuck says:

            “I hear you ask as if we’ve never had a freaking trial where some of the evidence was Top Secret before in the history of the freakin country. ”

            Congratulations, you’ve invented the Star Chamber.Report

            • Avatar Jaybird says:

              Dude, we’re not even bothering to establish a star chamber.

              We’re saying “if we had a Star Chamber, we could do this, so we can do this”.

              Establishing the Star Chamber is an important step. Why? Because we can unestablish it when the war ends.

              That war we’ve never yet declared.Report

            • Avatar Jason Kuznicki says:

              Congratulations, you’ve invented the Star Chamber.

              Bzzzt. Sorry, but no. You’ve invented FISA, an article III court created by Congress and formally a part of the judicial branch, with all of the independence from the executive that that entails.

              You’d make a much more convincing case against Americans’ civil liberties if you showed yourself even slightly aware of what they were and how they worked.Report

              • Avatar DensityDuck says:

                So a secret trial that that the public is not allowed to attend, review the evidence presented at, or even know about is okay…but a Star Chamber is something different, and that’s bad.Report

              • Avatar Jason Kuznicki says:


                It is tremendously important to have an independent court, one not subject to the executive branch, whose decisions are made according to law and precedent, and may be subject to appeal.

                All of these things are demonstrably absent here, and that’s a serious problem. I’ll just repeat what I said: You’d make a much more convincing case against Americans’ civil liberties if you showed yourself even slightly aware of what they were and how they worked.Report

  17. Avatar Creon Critic says:

    Authorization for Use of Military Force Against Terrorists

    Section 2 – Authorization For Use of United States Armed Forces
    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


    There is some hyperbole and campaigning rhetoric going on here, which is fine. I realize the nightmare scenario Jason paints at 11:40am is deeply troubling. But arbitrary, unaccountable, and lawlessness (in the original post) are inapt terms for an executive that received approval to use military force. Apparently there are a host of caveats and provisos that should be added to the AUMF, I don’t really disagree, issues about geography (“hot” battlefields only?), methods (what further process for robust review?), imminence of the threat (when terrorism is involved what counts as imminent?), all reasonable to campaign (and protest) for clarification.

    But in terms of taking an analytic look at the situation, regarding the charge of arbitrariness, the administration isn’t acting without any legal theory whatsoever (AUMF and UN Charter self-defense rights); the administration has also put forward the rationale that operational members of al-Qaeda and affiliates are targets while just loudmouths are not (the Reuters piece in the original post mentions the contrast officials see in the Anwar al-Awlaki case versus the Adam Gadahn case). Regarding the charge of unaccountability, the executive is still accountable to Congress to justify and explain its actions. Congress has the power of the purse, and power to investigate and repudiate things that go beyond boundaries, and if one thinks Obama should be impeached, then that’s also an argument one can make (I think Ron Paul has already broached impeachment). (I’d add the judiciary has also had occasion to comment on issues surrounding the al-Awlaki case and the US government made representations that the US would not use lethal force against al-Awlaki were he to peacefully surrender, contra Jason’s 6:54 claim.)

    I’d argue there is more productive work to be done in making more precise arguments about where the boundaries should be, arguments that use campaigning rhetoric about lawlessness, due process-lessness, unaccountability, or arbitrariness are less effective (to me).Report

    • Avatar MFarmer says:

      I would argue that the power of the executive office needs to be strictly limited — it’s out of control. Congressional oversight is a joke.Report

      • Avatar Creon Critic says:

        Would you compare the 17th century parliamentary relationship to the monarch and the current congressional relationship to the President of the United States – do you really think we’re in the territory of dysfunction resulting in the English Civil War or the Glorious Revolution?

        Modern day Star Chamber is a far different claim than arguing the AUMF and Title 50 need revision. For one thing, there’s more room for discussion with people on the AUMF/Title 50 revision side compared to the shouting at people on the “You resemble Charles I/James II” side.Report

    • Avatar Stillwater says:

      Creon Critic – two things: One is that I agree that the Obama admin (office of the presidency) feels certain of the legal footing they’re on wrt killing AA. I think that’s part of the problem here, of course: that while it appears to me that the Executive violated a US citizen’s rights, it’s not entirely clear that that’s so. Given the broad authority accorded the Pres by the AUMF, the case supporting the legality of the kill order and subsequent … well … killing is hard to deny. So there’s two things going on here: one is whether the Executive has, as a matter of law established by the AUMF, the legitimate authority to unilaterally label a US citizen an enemy combatant and then order the targeting of that person. Another question seems to be whether the Congress has the authority to 1) create a new category of ‘enemy’ under which the provisions of established international law and domestic US law are circumvented (if that’s in fact happened), and 2) whether our political institutions are better off for according the Executive that unilateral power in any event. So I agree that more work needs to be done bring the current understanding of the powers accorded by the AUMF into line with already established protections against actions by the state at both domestic and international levels.

      The second thing I wanted to say is that I consistently find your comments to be exceedingly well thought out, interesting and well argued, not only on this topic but others you engage in.Report

      • Avatar Creon Critic says:

        Stillwater, when I read the AUMF I was kind of surprised by its short length. It seems that more specifics in the AUMF would go a long way towards resolving many of these issues. Even some sort of quasi-sunset provision mandating a future review would help clarify what Congress thought about how an administration was managing the situation. Or if Congress is too partisan an environment to consider these issues, maybe a blue ribbon commission including people with both national security and civil liberties backgrounds to examine a range of the issues involved. I agree that lodging this in the executive without (as much as possible) a public discussion of the issues involved is unhealthy – it’s great the administration leaked the OLC reasoning Sunday, but not really good enough.

        Thanks for your kind words. I haven’t found many communities of commenters who are, on the whole, so willing to discuss some traditionally divisive issues like abortion, or race, or coercion, without either just a parade of agreement or typical yah-boo politics. When yah-boo stuff comes up here it’s often witty and when people step over the line there are apologies. Apologies on the internet! Maybe a comment community’s character can be judged by how often there are violations of John Gabriel’s Greater Internet D–kwad Theory (obligatory comic). The LoOG fares really well.Report

        • Avatar trizzlor says:

          Creon Critic, I’m definitely with you on the length and breadth of the AUMF, but isn’t a “quasi-sunset provision” already implicit due to the War Powers Resolution? Granted, I’ve never seen such a review though I imagine it happens prior to continued war funding and is classified (as happened with the Libyan kinetic-whatever funding authorization).Report