A Catechism of War

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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 Chris says:

    What’s more, the political incentives are such that is is likely, maybe even certain that each successive president will have to ramp up this “war” with a “way of doing things” because a.) people seem to like it, b.) it will be politically devastating for a large-scale attack against U.S. citizens to occur. Plus, there’s money in it.Report

  2. Avatar NewDealer says:

    Talk to someone in the middle here.

    An overwhelming majority of Americans support the use of drones and I think also support the use of killing terrorists without due process. This is what I am getting from the polls.

    I am not one of these people. However, I am also not dismissive of terrorists being against the United States either. I think there are many people out there who would love to commit serious acts of violence against the U.S. and these people are not always going to be in nation states and we are not going to be able to fight them conventionally either.

    I think preventing terrorist attacks before they happen is a valid role for government.

    Is there always going to be a tension between being a democracy and the need for protective intelligence? Do you think liberal democratic republics can have intelligence agencies like Mossad, the CIA, Shin Bet, MI6, etc?Report

    • Avatar Burt Likko in reply to NewDealer says:

      I do not understand the obsession with drones. Drones are weapons. I’m willing to bet that the average Pakistani does not much care whether the aircraft that is being used to launch a missile that blows her countrymen up has a pilot or not.

      Objecting to drones as somehow inherently immoral makes as much sense as objecting to bayonets with blade lengths of more than ten centimeters. Who we stick those bayonets into, and how we go about making that decision, matters a whole lot more to me than how long the blade is. If it’s me who’s getting blown up by the drone-launched missile or if it’s my liver that’s getting the bayonet, my objection is not that you’re refusing to “fight fair” because I don’t want to die and fair has very very little to do with it.

      As far as weapons go, I rather like drones because the warrior using the weapon is not personally at risk. If something goes wrong with the drone, like the bad guys shooting it out of the sky, the pilot says a few bad words, takes the rest of the day off after her debrief, and maybe goes out to the Strip or Ybor City (as applicable) to have a drink with her husband to blow off the stress. It’s rather a different story if something goes wrong with a piloted aircraft, especially over hostile territory.

      My problem is in essence what Jason articulated in the OP. War without end or definable objective against an enemy who cannot be identified or isolated, justifying anything someone with a gun chooses to do. Why we are at war at all, who we are trying to kill and why, and what we hope to achieve with the expenditure of our blood and treasure and most of all why we are being asked to sacrifice our highest legal ideals in pursuit of this nebulous goal — none of this is clear to me anymore.Report

      • Avatar NewDealer in reply to Burt Likko says:

        I think the main (and in my opinion very valid) opposition to drones is this.

        It makes going to war too easy. I was in a debate on the League about this with a woman whose son was in the military. She said she liked drones because it kept her son safe. IIRC I might have said something about seeing battle and possibly being wounded/killed is an assumption of the risk for military service. If you don’t like that risk, dont’ sign up.

        Drones allow someone to be comfortable in the United States while bombing someone in the mountains of Pakistan or whereever. This can lead to a lot of damage in the wrong hands. It can also increase the chances of terrorism on US soil because they will have no choice but too retaliate and attack here.Report

        • Avatar Morat20 in reply to NewDealer says:

          Have you seen the countries we’ve fought in the last thirty years? The US military is already on Easy mode.

          We rolled through Iraqi — twice — without basically stuttering. The only time we suffered casualities was when we were forced to fight on foot, infantry to infantry. And even then we had the overwhelming advantage.

          I’m not thinking ‘drones’ are any less different than smart bombs, really. Or cruise missiles.Report

      • You honestly don’t know why the US is in an armed conflict with Al Qaeda?Report

        • I know quite well why we initiated an armed conflict with al Qaeda. And if you’d asked me that question in 2002, I’d have had a ready answer for you. But I do not know why, after achieving every objective that we defined as “victory” in 2002, we continue to pursue that armed conflict. What are we trying to accomplish today, eleven and a half years after the attack?

          Are we not done achieving revenge for 9/11? Mission accomplished at Zero Dark Thirty, if you ask me. We’ve proven quite dramatically to all the world that if you dare try to hit us, we will hunt you down and shoot you in the face. An important object lesson for us to teach, to be sure. But the command structure of al Qaeda that chose to pick a fight with us is presently dead, imprisoned, or impotent.

          What bad thing will al Qaeda do, which it would not do otherwise, if we brought all our troops home today?

          Are we still fighting to displace the Taliban from power so as to deny terrorists a home base in Afghanistan? Mission accomplished. In 2003. Absolutely agreed that human rights and economic conditions are horrific in Afghanistan, and the risibly weak government we have chosen to recognize in that so-called nation (“region” would be more accurate) is a thin, corrupt veneer on a fragile, ever-shifting coalition of hugely undependable local warlords. I feel sympathy for the people of Afghanistan, truly, but the poor state of Afghan government is ultimately not our problem.

          What bad thing will happen, which would not have happened otherwise, should that purportedly democratic government be toppled and one of the warlords came out on top as the military dictator?

          Tell me, Creon, at what point will we win this armed conflict with al Qaeda? What will the world look like when we have won, and how is that world different than the world the way it exists today? Why must American citizens must be hunted down and killed by their own government without so much as an unnoticed hearing held in a secret tribunal first?Report

          • Where you see rupture I see continuity. To me the fact of 9/11 is inextricably linked to al Qaeda and its affiliates today. However much success the US and allies have achieved thus far is not an excuse to now relent, particularly given al Qaeda affiliates history of taking advantage of weak and failing states and given that a number of countries in North Africa and the Mideast are undergoing dicey transitions. That makes the poor state of the Afghan government of significant interest to the US. That’s not a prescription for 60,000+ troops in Afghanistan, or for a particular troop commitment, forever. But it does mean that “mission accomplished” is a premature declaration of victory.

            What point will we win this armed conflict with al Qaeda?

            Given al Qaeda is a non-state actor it will be difficult to tell. There will be no surrender on a US battleship, not satisfying concluding treaty. But the lack of clarity on this point does not make the efforts of al Qaeda and affiliates less significant.

            Why must American citizens must be hunted down and killed by their own government without so much as an unnoticed hearing held in a secret tribunal first?

            And when did you stop beating your wife? In other words, a loaded question. As I understand it, the administration’s position is that al Qaeda members in difficult to reach places (those weak and failing states again) plotting attacks are not shielded by their nationality. I’d say that a review and stock-taking is entirely in order, not least to build consensus around the right course of action. Unfortunately, Congress has been willing to give the executive broad powers and satisfy itself with scrutiny after the fact. Unlike Congress, the executive does not have the luxury of inaction. The executive must decide even in the difficult cases.

            Lastly, I think the administration has presented a convincing case (speeches by Koh, Holder, and Brennan): the US has a right to self-defense, targeting in places that are unwilling or unable to combat al Qaeda (beyond hot battlefields) is necessary given the non-state actor adversary, US conduct must conform to the laws of war (necessity, distinction, proportionality being a high concern).Report

          • The specific speeches: Koh, Holder, and Brennan. I’d note that they don’t conform to the so-called catechism as the original post presents it.Report

          • Avatar Michael Drew in reply to Burt Likko says:

            What were the borders of the battlefield in the armed conflict between the U.S. and Al Qaeda late-2001 and 2002?Report

          • Except the thing that Jason is complaining about above has nothing to do with the war in Afghanistan.

            The targeted kill list and the OLC memo that supposedly lays out the authorization to do so was done pursuant to the objectives of the AUMF against Al Qaeda and was used to target operational leaders operating in Yemen (where I will point out, the US has no troop presence outside of drones and perhaps one or two JSOC teams).

            Al-Aulaqi’s case has all sorts of complications that render it somewhat unique. I seriously question the notion that it is somehow setting precedent that’s all that different from Quirin or for that matter Korematsu. The feasibility of capture condition alone is a substantial difference from what’s being claimed above.Report

            • Avatar Michael Drew in reply to Nob Akimoto says:

              If the claim is that Aulaqi was targetable as a belligerent in a (non-international) armed conflict to which the U.S. and (Aulaqi’s branch of) Al Qaeda were parties, then both the imminence of the threat he posed and also the feasibility of his capture are completely irrelevant. In an armed conflict, belligerents, including belligerent commanders not engaged in overt violence, can be targeted at a time of the belligerent forces’ choosing (i.e. while sleeping, retreating, etc. – anything other than while actively signaling surrender). On the other hand, if imminence or feasibility of capture are thought to be legally salient matters about a particular person who it is claimed threatens the country, then a claim that he is lawfully targetable is necessarily going to stem out self-defense doctrine in international law and in domestic U.S. law the idea that Article II gives the president powers to protect the country from attack above and beyond, or pursuant, to the Commander-In-Chief power (which itelf is a contentious claim). The latter depends not at all on a state of war existing when this threat is identified. In other words, whatever claims you make about it stand in and out of the context of wartime, and thus degrade (to the extent they do) civil liberties generally, not just as a result of war. These are simply things the president can do. The the White Paper makes its claims based on the latter source of authority, it does indeed degrade traditional liberties profoundly, because of how much it stretches the idea of imminence and obfuscates about what makes capture infeasible.

              The only potentially viable defense of the White Paper on civil liberties grounds (which is not to say such a thing actually exists) is that is claims these authorities pursuant to a state of war between the U.S. and organizations it imagines potential targets to be belligerent members of. That renders arguments about imminence and feasibility of capture irrelevant and best seen as political coloration to make these claims more acceptable to the public or other political auditors (read: Congress).Report

              • Avatar Michael Drew in reply to Michael Drew says:

                *If* the White paper…Report

              • I’d submit that the white paper isn’t the only important outlining of the principles the administration is using. Here’s Eric Holder,

                Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens[…] the most relevant is the Fifth Amendment’s Due Process Clause[…]

                The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.[…] the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.

                Here, the interests on both sides of the scale are extraordinarily weighty. An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

                Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face. The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.

                Report

              • Avatar Michael Drew in reply to Creon Critic says:

                No, but to my knowledge it’s the most expansive public document or speech from this administration on these topics of the modalities of imminence and feasibility of capture to date. For example, the passage you quote is more or less ambiguous on wartime vs. Article II protective authority, though I think more suggestive of a military conflict-based analysis – and there isn’t any reference to threat imminence or capture feasibility in it.

                Nob’s suggestion was that the capture feasibility analysis makes the White Paper’s analysis more benign; in fact if it’s legally significant, that means the analysis is more ominous.Report

            • Of course, if I had to pick the single worst decision of the twentieth century, Korematsu would probably be it.

              I’m hardly alone on that opinion, either.Report

          • Avatar Will H. in reply to Burt Likko says:

            Well, for one thing, Afghanistan has a distinct lack of Old Navy outlets.
            The pants at Old Navy set off the fanny quite nicely.
            Were we not to make war on these people, unattractive derrières might well result.
            Think of the horror were such a thing to become widespread.

            Also, al-Qaeda might possibly, theoretically, at some point threaten to bruise our avocado supply.
            America’s avocados are at risk.
            Think of walking home with a wonderful, newly-purchased avocado. When you arrive, you cut it open, saying to it tenderly, “Oh, avocado! My luscious avocado! . . .” But when you pull it apart, the music from the shower scene in psycho starts playing.
            “THOSE DAMNED TERRORISTS!!!” you exclaim, as you discover that your wonderful, luscious avocado has fallen victim to the bruising of a terrorist attack.
            It could happen.

            But these are the sort of atrocities such open-ended warfare are meant to avoid.*
            We must kill, kill, and kill again– even if it’s just the same dead horse we’re beating.

            * And even if it’s not, it’s still good enough reason for someone somewhere to bomb the hell out of some other place.Report

      • Avatar Tod Kelly in reply to Burt Likko says:

        My big concern about drones is I can see them democratizing war in a similar way that PCs democratized business.

        I am very, very confident that in 10 years a small group of domestic radicals – say, muslim extremists or white separatists – will continue to lack the funds and expertise to build a small fleet of F-15 fight jets to take out government buildings, bridges, schools, public squares, etc.

        I’m not so confident they won’t be able to do the same with cheap do-it-yourself drones.Report

    • Avatar Burt Likko in reply to NewDealer says:

      I’m sorry, NewDealer, I didn’t answer your ultimate question, so keyed up was I on the drone issue.

      Yes, a contemporary liberal democracy can have an intelligence agency. I think it takes a special sort of person who can walk the line between keeping secrets and suborning the agency’s actions to the broader goals of the democracy. But I think it can be done.Report

      • Avatar NewDealer in reply to Burt Likko says:

        My issue seems to be there always seems to be a tension between the needs of intelligence agencies and the qualities we want in democracy: transparency, openness, accountability, and how to punish people who violate the agency.

        Prison X (though Israeli and not American is a better example. What did he do? Why was he put in prison? Should spies be stripped of their due process because they sold out their nation? How much do we have a right to know about what a spy agency does? What happens when an intelligence agency takes actions that are directly opposed to the popular will?

        http://www.theatlanticwire.com/global/2013/02/prisoner-x/62142/Report

  3. Avatar Morat20 says:

    I don’t blame the executive here. (And I’m not being partisan — I would have said the exact same if McCain or Romney were President and doing this. Unlike torture, I think what’s going on is sadly legal).

    I blame Congress and the AUMF. To put it simply: In war, the executive’s powers are at it’s maximum. Oversight in war is minimal, checks and balances are minimal, it basically boils down to the ballot box or a particularly muscular Congress.

    And the AUMF authorized military strikes against a vaguely defined enemy in a battlefield that encompasses the entire world. As such, I consider drone strikes no different than bombing strikes and due process for being bombed is basically being labeled as a valid target by the military or the President, regardless of citizenship.

    All things considered, there are more checks on the President’s war-time powers coming from various treaties we have signed than the Constitution — or the AUMF.

    Congress authorized this. Whether it was President Bush or President Romney or President Obama authorizing this, I cannot see a legal or Constitutional problem.

    (Torture is a horse of a different color — those aforementioned treaties, which are binding on the President and the military unless Congress specifically repudiates them).

    That’s not to say I agree it’s a good idea. Or that it isn’t disturbing. Merely to say that Congress explicitly ordered the President to treat AQ as a enemy force and directed that the full might of the US military be deployed against them.

    This…is the inevietable result of fighting a dispersed, cellular paramilitary force with very, very poor guidelines as to ‘membership’ as if it were a nation or state.Report

    • Avatar Kolohe in reply to Morat20 says:

      It’s pretty easy not to torture people when you no longer take prisoners and simply shoot on sight.Report

      • Avatar Morat20 in reply to Kolohe says:

        Obama issued a take no prisoners ruke? Really?Report

        • Avatar Kolohe in reply to Morat20 says:

          Not a rule, but definitely a practice.

          Compare the number of AQ guys who were taken off the field vs the number of guys who were retired from game with extreme prejudice. (particularly when the game is being played outside of Pakistan).Report

          • Avatar Morat20 in reply to Kolohe says:

            Um, it appears that most of the ‘kills’ are in countries where we, you know, don’t have troops and the captures are in countries where we do have troops, or a good working relationship with the government.

            I’m no military expert or anything, but I’d imagine when it comes down to “kill/capture”, but I’d think “realistic ability to capture” is a question that comes up.

            Going after Bin Laden was considered a high-risk move — whereas simply bombing him would have been, well, less so.

            The real world is kinda messy that way.Report

            • Avatar Kolohe in reply to Morat20 says:

              I don’t really see that any of what you have said takes away from my point, which is the current administration’s modifications of any and all of the previous administration’s detainee policies are made easier when one isn’t taking in any more detainees. (vice the dozens that used to be captured, and the other dozens that were turned in by people settling scores, many of whom were innocent)Report

              • Avatar Morat20 in reply to Kolohe says:

                Let me make it simple: Capturing someone requires having people right there to do the capturing, right?

                It seems all the people we’re killing come from countries where we don’t have people there to capture them, and despite TV and Video Games it’s really very, very dangerous and risky to try to sneak people into foreign countries to do so. Great for spy movies, kinda spectacularly ready to blow up in your face in real life.

                I’m not seeing any evidence here that we’ve gone to a ‘no capture’ or ‘kill on sight’ policy, only evidence that the people we’re after are not in countries we have troops in, or countries where the government is capable of getting these people for us. (Even Pakistan, our ‘ally’ is limited by internal politics to looking the other way when our drones come by)Report

    • Avatar Shazbot5 in reply to Morat20 says:

      I think the solution will have to come from the judiciary. Even if Obama or whoever wins in 2016 issues a memo saying no more drones, no more holding people without trial, a new executive can always reverse that if we enter a new conflict. And Congress will never be liberal (in the old sense of liberal) enough to pass strict laws restricting the executive from militarily trying to protect the voters from real or imagined threats. And a future less liberal Congress cold always reverse those laws.

      No, at some point the Supreme Court is going to have to find a way to tell the executive that all these actions are illegal and direct Congress that it needs to find a lasting solution. IMO, we could create much more fair and just courts for international terror suspects, that were secret enough to not tip off the terrorists, and fair enough to make it unlikely that anyone is killed without at least offering them a chance of defense. (At least you could make a public list of enemies, which we do, and have the list supervised by courts who see but don’t publicize the evidence that people belong on the list, tell them all that if they surrender for trial, they will get a fair defense to be removed from the list, and if they don’t surrender, they have to be tried in absentia in a serious trial.)

      Such courts won’t be perfect, but courts never are. In cases where we don’t want to list that someone is an enemy but still aim at killing them, the courts would need to sign off, and would have to apply strict standards, IMO. But these courts will restrict the actions of the military and the CIA, and to some degree make the public less safe (or feel less safe) and they’ll never vote for that, so the judiciary has to demand it. Not sure if they will, given how conservative (in the old sense of being lap dogs to executive power) the judiciary has become.Report

      • Nob Akimoto Nob Akimoto in reply to Shazbot5 says:

        Ahahahahahahahahaha……hahahahahahahahahahahahahahahahaha….

        Bahahahahahahahahahaha.

        …oh you’re serious about the Supreme Court?Report

        • More seriously, the noise about FISC-esque ex-ante judicial review of drone strikes appears to be something only Congress will be willing to do. SCOTUS and the judiciary writ large have mostly stated they’re not interested in getting involved in this dispute unless they’re given absolutely no choice.Report

          • Avatar Morat20 in reply to Nob Akimoto says:

            I’d imagine it’s because they’re fairly certain the judiciary has relatively little power over military actions. *shrug*.

            They’re pretty hands off there, always have been.

            I’d like to see more discussion on drone killings and the like and the various treaties we’ve signed on the subject of ‘war’. Congress gave a blanket authorization, but that doesn’t override signed treaties.

            I doubt there’s much there, but it IS a legal restriction on Presidential power in wartime.Report

  4. Avatar George Turner says:

    Perhaps where we’re screwing up is thinking of this as “war” like WW-I or WW-II instead of realizing that the US was in low-level conflicts for most of its existence. There was always some angry tribe of Indians, pirates, adventurers, and foreign nationalists of one stripe or another who struck at us all the time. People didn’t freak out about it and rip up the Constitution, they just shot back. Being subject to attacks or raids was just part of being at sea, or on the frontier, or on the coast where a pirate ship could cruise on in and cause havoc. Having small bands of really angry people trying to kill us was just a fact of life, like the weather.

    In a historical sense, our country was founded and grew while at war with past equivalents of Al Qaeda. It was a state of ongoing conflict that was normal for our democracy. Perhaps the shift is that as the 20th century wore on, we got used to the idea of not being challenged by anyone other than major state actors, and now think that a threat from anyone must be treated like a threat from vast, organized nation states with weapons of mass destruction. It made sense to increase Presidential wartime powers because only central, focused, coordinated military action could cope with the large scale and violence of modern war against things like the Axis or the Soviet Bloc. But the current threat is more like Comanche raiding parties, and the response to those shouldn’t require much in the way of Presidential intervension, other than perhaps ordering some punative counter-raids if local forces aren’t consistently beating back their attackers.

    As I’ve argued in other threads, most of these decision have no business rising anywhere near the Presidential level. Most probably have no business rising to the level of a colonel. If these people really are our battlefield enemies then it would be more sensible if our policy didn’t result in a bunch of hand-wringing over Constitutional balance of powers, but just a quote from some Army major saying, “We were sitting around minding our own business and came under attack from some band of ne’er-do-wells, so we leveled our guns and cut them to pieces. We’ll happily do it again if they keep it up.”Report

  5. Avatar James Hanley says:

    Don’t worry. Obama’s a Democrat, so we can trust him. And all we have to do is keep electing Democratic presidents, and we’ll be safe from violations of our rights.Report

    • Avatar Morat20 in reply to James Hanley says:

      The strangest part about that answer is the left is by and large much angrier and upset about it than the right.Report

      • Avatar Stillwater in reply to Morat20 says:

        {{Inconvenient facts….}}Report

      • Avatar James Hanley in reply to Morat20 says:

        Yeah, well, back in ’08, the Democratic meme was, “Elect Obama, a Democrat, and then we’ll have put an end to that evil warmongering that Republicans do.” Funny, that didn’t work out so well (as I predicted at the time it wouldn’t).

        Now, I’m not quite sure how to interpret your comment. If it means, “We left-leaning folks learned our lesson and we’ll never again assume that electing a Democrat is any kind of solution to executive war mongering,” then hooray, I approve.

        But if your comment means, “We left-leaning folks are more anti-war than the righties, so we really can expect Democratic presidents to not be war mongers because we’re the ones selecting them,” then, boo, you’ve neither learned your lesson nor caught the point of my comment.

        I’m honestly not sure which is the correct way to read your comment, so choose whichever response is appropriate, and that’s how I truly feel about your position.Report

        • Avatar Mike Schilling in reply to James Hanley says:

          You can’t see the improvement? Four Americans getting killed is now a cause celebre rather than a lighter-than-usual week. And starting one war that we won is much better than starting two wars that refuse to end.Report

        • Avatar Michael Drew in reply to James Hanley says:

          My recollection of the meme was that Obama would focus on the right (parts of this) war, draw back from the wrong (parts of this) war, and not launch new, dumb, wrong parts of this war.

          I think he hasn’t lived up to that entirely or satisfactorily. In particular, I think the drone campaign is dumber and wronger than he realizes. But I believe he sees it as in keeping with a focus on fighting the right part of this war which he offered. But I do believe there has been a trend toward doing something like what he said he would do just in terms of overall war-fighting focus, though not toward doing it in a way the restores and preserves liberties that had been eroded by the previous administration. So in other words, it’s his promises to restore liberties and conduct the right war in a smart way that he hasn’t kept, not any promise to end the war stemming from 9/11 entirely (other than the Iraq part of it), or “evil warmongering” (which to my knowledge he was silent on).

          So how you remember the political offer (the meme, as you say) he made to the public about how he’d conduct the war that was underway as he ran for president is not at all like how I remember it.Report

          • Avatar James Hanley in reply to Michael Drew says:

            I’m really focusing on what my Democratic-voting friends were saying at the time.Report

            • It’s not really Obama’s fault that they weren’t listening to what he was actually saying.Report

              • Avatar James Hanley in reply to Nob Akimoto says:

                Well, he did make a lot of noise about things like executive abuse of the state secrets privilege, which he then did an abrupt about face on. And I don’t remember him telling us up front that he was so gung ho about drones. So maybe they actually were listening.

                But even if not, my point was really directed about what naive liberals were hoping for, not about what Barack the candidate actually said.Report

              • Avatar Michael Drew in reply to James Hanley says:

                Definitely agree he didn’t give any direct indication of the scale of the drone campaign he eventually undertook. I tend to think he got military-spook-think-tank-industrial complex-slapped and allowed this expansion as much out of inattention as directing it with intent, more than concealing his real intentions back in ’07-’08, but neither of those is much less damning than the other. But I’d still maintain that, for all its disproportionate and unannounced scale, the drone campaign as it has evolved is not generally inconsistent with his repeated promises to refocus the War on Terror intently on Al Qaeda itself (as vice real or asserted state enablers viz. Iraq).Report

              • Avatar James Hanley in reply to Michael Drew says:

                Michael, I agree. I don’t think candidate Obama intended to go this route (nor did candidate Bush have designs on invading Iraq). My real point is not that it’s the man that’s bad, but the office, and that no man will be able to resist the effects of the office, so that anyone who believes their favored candidate will or can because s/he is gooder than the opponent is deluding themselves.

                While good men in office are still better than bad men in office, the office itself will ensure that no man can maintain his goodness while holding it.Report

              • Avatar James Hanley in reply to James Hanley says:

                I have to backtrack here. I do in fact think it likely that Bush intended to invade Iraq before he ever was elected. There is at least credible, if not definitive, evidence, that he thought his father had failed to use the U.S.’s capacities correctly, and intended to use them against Iraq if an opportunity presented itself. Fortunately (snark), it did.Report

            • Avatar Michael Drew in reply to James Hanley says:

              I had a feeling you were and I think it’s fair to do that, but I think it’s also fair to state nearby what the political offer Obama put on the table w/r/t war actually was.Report

            • Avatar Jaybird in reply to James Hanley says:

              Today, on my facebook, one of my In-Laws posted a “lefter-than-thou” screed from Desmond Tutu, whoever the hell that is, that somehow got printed in the New York Times (read it here).

              Here’s an excerpt:
              The writer, winner of the 1984 Nobel Peace Prize, is archbishop emeritus of Cape Town.

              I wanted to leave the comment “Hey, Obama has a Peace Prize too and it’s a *LOT* more recent than yours, mister” but I didn’t want Maribou to yell at me so I just left this comment here.Report

    • Avatar Shazbot5 in reply to James Hanley says:

      I think in 2009 when the country was unsure about Obama being tough enough, there was a practical justification for him having to continue (while sometimes, thankfully, weakening and making less awful, except for the drones, which got worse) the Bush era rights violations in the war on terror. It was fair to say that Obama couldn’t do any better without losing the country and the presidency in 2016 to someone who would bring back the worst aspects of Bush, including the torture. Sometimes the perfect is the enemy of the good.

      But that argument no longer holds given that Obama has a second term, is trusted after ordering Bin Laden’s death and lots of tough actions, and has made parts of the rights violations in drone actions worse than Bush did. If he doesn’t swing to the left fairly hard on foreign policy and rights abuses in the war in terror (I mean, he can only g so far without his own generals and the public rising up, but he can go a long ways) soon, then there will be an awful moral stain on his legacy like the stain on Roosevelt’s (though we can debate whose stain is worse).

      Personally, I suspect he won’t swing left on foreign policy, and his record will be good-great on domestic issues, but morally stained on foreign policy. (I’d say his failure to call out settlements in the West Bank more forcefully is also a stain. So are continued friendly relations with some pretty awful anti-democratic governments like Saudi Arabia.) But when has a US president acted better in foreign policy, post WWII? Likling and voting for Obama is more a matter of comparing him to the most likely alternatives in Bush III, McCain, Romney, Cheney, etc than to Liberal Jesus.Report

      • Avatar Kolohe in reply to Shazbot5 says:

        “But when has a US president acted better in foreign policy, post WWII?”

        Ike.Report

        • Avatar Shazbot5 in reply to Kolohe says:

          Ike was in power when they overthrew Mossadegh, which was an awful moral crime against a country that may have been fully democratic and liberal by now if it hadn’t been done. Eisenhower’s actual input on the matter is, I think, still disputed (correct me if i’m wrong) but he could’ve stopped it and didn’t, at the very least.

          He also stepped up CIA action in South and Central America and sent the first troops/advisors into Vietnam.

          In some ways, you could say Eisenhower started the whole slippery slope of the U.S. using covert military and CIA power (in his case for containment, in contemporary cases for attacking Islamist terrorist groups) the way that we are critizing Obama for doing.

          But I’m no expert.Report

  6. Did they even try to answer that last question?

    No, they did not.

    This is not, strictly speaking, true.

    Every single legal justification used by everyone ranging from State, NSA and even the federal appeals court have noted that feasibility of capture is one of the big preconditions for being subject to being targeted with a drone.

    There are substantive problems with an ex post review system with congressional oversight, but using this level of hyperbole to describe the Al-Awlaki case is absurd. Had he been in say, upstate New York, they would’ve sent the FBI after him to capture him. The fact that he was hiding out in parts of Yemen not controlled by their government is a substantial part of the rationale of targeting him with a drone than a warrant for arrest.

    If anything is outrageous it was the LAPD’s handling of Dorner. They didn’t have the excuse that the fellow was hiding in a hostile country. They just decided to burn down the cabin he was hiding out in.Report

    • Avatar Stillwater in reply to Nob Akimoto says:

      If anything is outrageous it was the LAPD’s handling of Dorner.

      You’re right about that. If there is in fact an institutional value placed on life and due process, then they ought to have waited him out, tried to entice him to surrender, etc.

      Instead, they thought: we’ll torch the place and either he dies in the fire or we shoot him when he flees, due process and the principle of guilty till proven innocent … err, whatever … be damned.

      You’re making a good point here.

      {{Tho I do agree with Jaybird’s oft-mentioned point that trial in absentia wrt AA would have formally satisfied constitutional protections and provided legitimacy to the final act. Why that option wasn’t pursued is a bit of a mystery.}}Report

      • I think the worst of local, especially large urban PDs and rather think the LAPD intentionally made sure Dorner wouldn’t be taken alive.Report

      • It’s not really that big of a mystery by the way about the trial in absentia.

        It’s kind of uncertain what court would actually have jurisdiction (absent a judicial review body like FISC) and that it would have required some forms of intelligence disclosure that the Admin was not comfortable releasing.Report

        • Avatar Stillwater in reply to Nob Akimoto says:

          and that it would have required some forms of intelligence disclosure that the Admin was not comfortable releasing

          I get that. But the counter argument – one that I’m increasingly persuaded by – is that we’re talking about a citizen being killed by a government which is ostensibly governed by the rule of law. And I think a trial before acting is in fact the law in such cases, no?Report

          • The courts did have an opportunity to stick an injunction on US efforts to blow up Mr. Al-Aulaqi.

            They passed on a technicality.Report

          • Avatar Michael Drew in reply to Stillwater says:

            Not in war on a battlefield, and not even in a domestic law-enforcement context in a situation where someone poses a real, true, imminent threat to seriously harm others. If you’re fighting in an army against the U.S. Army, the U.S. Army can kill you. (If you’re a citizen and you’re captured, at that point is when a treason trial comes about). And if you’re waving a gun around on the capitol square somewhere and a police officer thinks you seem quite likely to shoot someone, you don’t get a trial before she can lawfully shoot to kill you.Report

            • Avatar Jaybird in reply to Michael Drew says:

              If there’s a guy out there driving a Blue Toyota and you’re driving a grey Nissan, can the police officer lawfully shoot to kill you?

              I guess we’re going to find out.Report

              • Avatar Morat20 in reply to Jaybird says:

                I was about to comment on that. I think the LAPD’s….zealous reactions…might have opened them up to some nasty civil suits, if nothing else.

                *sigh*. Watching what looked to all the world like panic among supposedly trained law enforcement in the midst of a natonal conversation on gun ownership did not really shift me on mankind’s ability to rationally use a firearm.Report

              • Avatar Michael Drew in reply to Morat20 says:

                Was that Nissan/Toyota grey/blue thing a reference to the recent LA fugitive thing? I didn’t follow that too closely. What was the reference exactly?

                But yes, if a police officer thinks you’re about to cause someone (including the officer) grave harm in some way, they can and (I imagine) likely will shoot (or tase) you before you can do it – if they can. Without a trial.Report

              • Avatar Jaybird in reply to Michael Drew says:

                There was a report that Dorner was in a Blue Toyota. Some police officers pulled up behind a Grey Nissan and opened fire on the two chicks (who were not, in fact, African-American males) who were driving it *WITHOUT* announcing that they were police officers.

                They thought it was Dorner, you see. (I may have gotten the colors and/or makes all vice-versaed but the point stands nevertheless.)

                My question is whether the cops in question will be prosecuted for, oh, attempted murder maybe.

                A fun follow-up: will the prosecutor bring *ANY* charges up at all?

                If not: we’ve established some new and fun circumstances under which the police can lawfully shoot at women who have done nothing wrong.Report

              • Avatar Michael Drew in reply to Jaybird says:

                Thanks for the briefing. I knew that the police had shot some innocent people in their search; I didn’t know it was due to a bad conclusion about a vehicle that didn’t even match the description of the one Dorner was driving.

                Obviously I don’t know what will happen. But I would say that this does shed some light on any analogy or direct link people want to draw between the targeted killing program and law enforcement. Even if ultimately these police officers are not prosecuted, I’m at least somewhat confident that in some way or other there will be some ex post facto due-process, if not judicial, review of this incident by relevant authorities, even if those are only ultimately located inside the law enforcement structure, whether the department to which they belong, or perhaps at the state level (though by all means I wouldn’t rule out eventual judicial review as well).

                This is a greater degree of review and accountability that the target killing program currently operates under. In my view, this is not particularly unreasonable if the legal context is that of armed conflict (though i’d certainly be for instituting more review in the case of a conflict of this nature, even if we decide that conflict (war) remains the correct legal context in which to view these actions, which we needn’t necessarily). But if the legal context is that of general presidential protective authority stemming from implied Article II powers, then it seems to be a greater degree of review is imperative if the kinds of ideas about imminence (i.e. not true imminence) that are described in the White Paper are going to govern the use of lethal force pursuant to that justification.

                In this interview, Jameel Jaffer suggests that such review should be ex post facto, because ex ante review will be definitionally impossib le for any truly imminent threat (in his understanding of imminence). An interesting question to me then becomes is how candidates for this review are determined. Would uses of force (by the federal government’s military and national-security related forces outside of the domestic law enforcement context (such as FBI or ATF raids, which are obviously governed by standard courts) that seem unambiguously to have been in response to a truly imminent threat come under this scrutiny – i.e. not just those that are undertaken under the kind of “extended understanding of imminence seen in the White Paper? If so, then the proposal seems to be for ex post facto review of all uses of force by the president under Article II protection powers. That seems like a Constitutionally significant step to me, even for those who take a dubious view of the whole idea of Article II (Commander In Chief, etc.) protection powers.Report

              • Avatar George Turner in reply to Jaybird says:

                Some of the LA papers were screaming about the LAPD defending the actions of these officers, who are now on paid administrative leave. I think there were seven who opened fire on the hispanic women in the Toyota, and by one press account the truck had 102 bullet holes. The women were delivering newspapers in a residential neighborhood. One was shot twice in the back and one was just mildly injured.

                The LAPD has offered to replace their truck (the old one probably leaks now), but the LAPD isn’t going to pay for it. Instead they’ll ask for donations.

                LA Times linkReport

              • Avatar George Turner in reply to Michael Drew says:

                Well, suppose you were searching for Dorner, a large lone black man, and knew he was driving a gray Nissan. Then you saw a blue Toyota containing two hispanic women, one of them 71 years old. Being a sensible LA cop, you’d of course riddle the cab of the blue Toyota with a fusilade of bullets (I counted at least 42 bullet holes) from the back on the chance that Dorner might be an alien shape shifter riding in a Transformer Autobot.

                Meanwhile, minutes later, a white LA surfer dude had the misfortune to also be riding in the wrong make, model, and color of vehicle (a black Honda). He was rammed and then they opened fire, hitting him, but at least they didn’t shoot him quite as much as the hispanics.

                Being white has its priveleges. Lord knows how many rounds they’d have fired at a black woman in the wrong make, model, and color of car.Report

              • Avatar Will H. in reply to Jaybird says:

                I remember reading about this case where these ATF agents were following a car because it didn’t have a license plate on the back of it.
                Never mind that it’s not really the ATF’s job to pull people over for traffic violations.
                And never mind that the car had a dealer sticker on it and was out on a test drive.
                Anyway, long story short, . . . you guessed it! The ATF ended up shooting and killing the driver.
                Any wrong-doing?
                Nope.
                This is the ATF we’re talking about here.Report

            • Avatar Stillwater in reply to Michael Drew says:

              where someone poses a real, true, imminent threat to seriously harm others.

              Well, I think that’s the sticky point. It could be that they had information that AA posed an immanent threat and argued that expediency prevented them from having a trial. But they didn’t. Or the could have expedited a trial. But they didn’t.Report

              • Avatar Michael Drew in reply to Stillwater says:

                Whether any of that applied in the case of Anwar al-Awlaki is certainly a sticky (at best) question; I’m not denying that at all. The point was just that the requirements are actually much more porous, and unambiguously so, than you laid out. The blanket statement you made about the requirement that there be trials is just simply one to which there are clear exceptions, rather than being an true in all cases.Report

              • Avatar Stillwater in reply to Michael Drew says:

                MD, I think that’s why the AA case is so instructive. If I’m remembering the timeline correctly, AA didn’t pose an immanent threat to US security. His father (I think it was his father) even had enough time to press his complaint against the government that lethal actions taken against AA could only occur after charges and a trial.

                SO, I think AA presented at best a constant threat, or continuous threat (and also a legitimate threat, I suppose), but not an immanent one. The US gov. had lots of time to pres specific charges and have a trial in abstentia. That doesn’t mean the immanent threat argument doesn’t make sense. Of course it does. But the strange thing to me is that it clearly doesn’t when applied to AA.Report

              • Avatar Stillwater in reply to Stillwater says:

                According to Teh Wiki!:

                In April 2010, the United States President Barack Obama placed al-Aulaqi on a list of people whom the United States Central Intelligence Agency was authorized to kill because of terrorist activities.

                The Yemeni government began trying him in absentia in November 2010, for plotting to kill foreigners and being a member of al-Qaeda…

                If the timeline is correct, the US had ample time to try AA in abstentia. It also shows, I think, that AA didn’t pose what’s conventionally understood to be “an imminent threat”, so that argument doesn’t apply.Report

          • Avatar George Turner in reply to Stillwater says:

            I think the problem there is that the administration is saying that the target doesn’t have to present an imminent threat, since knowing whether that was the case would require intelligence they lack. They’ve said that his mere membership and position in such an organization, combined with the difficulties of capture, made him a valid target.

            That sounds more like shooting the leader of a protest movement just because he’s the leader of a protest movement, as opposed to shooting a guy who is waving a gun in capitol square.

            I think we were handling things better when we’d print up “Wanted Dead or Alive” posters and just let the sharks have at ’em.Report

            • Avatar Michael Drew in reply to George Turner says:

              They are explicitly saying that a person need not present a threat to the U.S. population doesn’t that is imminent — indeed that there doesn’t even have to present a threat that is unique to the individual — if the organization of which he is a member is one they consider themselves (the USG) to be at war with, and they consider him to be an active belligerent within that organization. They can target him merely for being a member (of that kind) of such an organization.

              I believe they are saying that was the case for Awlaki, though I think they may (wrongly and tendentiously in my view) be saying he also posed an imminent threat to the country as an individual. (Though not, I don’t believe, merely by his membership in AQ(AP) alone. I believe that claim relates to other specific planning/directing of attacks that they allege that he did.)Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Sorry for the multiple instances of botched syntax here. Here is what that first paragraph should say:

                They (the USG) are explicitly saying that a person need not present a threat to the U.S. population that is imminent — indeed that he doesn’t even have to present a threat that is unique to the individual at all — if the organization of which he is a member is one they (the USG) consider themselves to be at war with, and they consider him to be an active belligerent within that organization. They can target him merely for being a member (of that kind) of such an organization.Report

              • Avatar George Turner in reply to Michael Drew says:

                Yes, I think I read much the same thing about the pretty low bar for a US citizen to get a personal assassination order from the President of the United States. It’s like a “Wanted Dead or Alive” but with the caveat “and we’re too darn lazy to try and apprehend you, so dead it shall be.”

                If the person represented an imminent threat then no special order should be required, the same as anyone who presents an imminent threat while in the cross hairs of our military, law enforcement, or random citizen with a gun.

                But we’ve extended into the gray area of non-imminent threats, apparently using assassinations to eliminate irritating people and habitual troublemakers. As a purely military action it wouldn’t be a problem, but neither should a special Presidential order be required, much less a star chamber. But we’re not quite there either because the targets aren’t on an actual battlefield or necessarily even in a country where we’re engaged in hostilities.

                But we don’t want to let the perps sit and plot either. We did that throughout the 70’s and 80’s with the likes of Abu Abbas and Abu Nidal, and sure enough, they cooked up some serious trouble from the safety of their sanctuaries, taking on an aura of invulnerability and making the US look toothless.

                Perhaps a workable alternate is to put boots on the ground, knowing the hazards that represents, but with the proviso that the suspects have one minute to come running out in their boxer shorts with their hands up or the smart bombs come raining down on anything that moves. It’s much trickier, but at least has the fig leaf of looking somewhat like an arrest attempt, and at least there’d be a chance of gaining some valueable intelligence instead of video of a smoking hole.Report

              • Avatar Michael Drew in reply to George Turner says:

                It’s not clear to me that in the course of a military campaign there shouldn’t ever be, nor would be illegal for there to be, presidential directives to seek and kill particular individual members of the enemy force. But I don’t know for sure.

                Do you?Report

              • Avatar Michael Drew in reply to George Turner says:

                …And on the question of national-security/Article II protective uses of lethal force outside the context of an ongoing armed conflict against truly imminent threats, it’s also not clear to me that individual orders would always not be needed to authorize such uses of force, though I agree they would have the character more of formalities and/or last-resort forced moves than the kill list we currently have, by all means. I don’t think there’s any good-faith argument that those names, nearly any one of them, pose an imminent threat to the country. But I do think that there are situations where special orders from the highest level of government to use force to eliminate a truly imminent threat would be necessary for it to be used. (Think of the order that Cheney gave to shoot down any passenger airliners that remained in the sky past a certain time on 9/11: I don’t think there is a protocol that would bring that action about that didn’t involve a special order for that particular instance, even though (in my view) it would have been reasonable to regard any such airliner as an imminent threat). But by all means, such orders wouldn’t be anything like the orders associated with the kill list that is now in place.Report

              • I need to go back and check my notes on this one, because I’m pretty sure we discussed this in National Security Law, but I’ve either forgotten or didn’t pay enough attention to the somewhat tortured logic of the Obama Administration’s use of international human rights law and law of war logic.Report

              • Avatar George Turner in reply to George Turner says:

                I think perhaps one difference is that shooting down an airliner full of innocent passengers would definitely require an order from very high up the chain, if for no other reason than we don’t want a pilot up and deciding to shoot down an airliner, nor would we want him dealing with the consequences of having made that decision.

                If not for the way our drone strikes often take out a house full of people who might not be the direct targets, such a kill really wouldn’t have the same kind of fallout or require the same level of approval. I’d imagine that any agent that pulled it off after running across the wanted man would get a pat on the back, just like a bounty hunter in the Old West.

                I think in part the difference is a reflection of where we’ve gone awry with our method. In requiring Presidential approval for strikes against single Al Qaeda members, using the signature of the most powerful leader in the world, we’re handing Al Qaeda the status of being our equals.

                Instead we should insultingly just require the say-so of a part-time deputy sheriff to kill one of them, like they’re a minor nuisance on par with convenient store robbers, powerless and so far beneath us that we can hardly spare the time to hold them in contempt.

                In fiction, the hero has to have a villain that’s a match for him, since the power of the hero is measured against his opponents. In treating Al Qaeda like a major adversary, we’re letting them gain unearned reflections of our own power in the eyes of those who idolize them. The more we portray them as a dire threat, the more their followers will feel empowered.

                Getting their faces off the President’s desk might be a step in the right direction.Report

  7. Avatar Shazbot5 says:

    “In war, the executive may kill the enemies of the United States.

    Including citizens?

    Yes, including citizens.”

    The new rule that the government operates under is this, but everyone is too afraid to make it explicit:

    Non-Muslim, non-Arabic citizens have constitutional protection at home and abroad (as long as they don’t marry into an Islamic or Arabic family abroad or have too many Islamic or Arabic friends and colleagues. Fraternizing with Islamic or Arabic people risks your constitutional protections.)

    So don’t worry Christians and Jews and secular children of Christians and Jews. They’re only taking away other people’s rights, not yours. You’re fine and should keep voting for people who are “hawkish on the war on terror” (which is now a dog-whistle for being okay with killing and violating the rights of Islamic and Arabic people.) Just stay Christian and make sure they don’t open any cultural centers and don’t let your kids enter madrassas or be schooled in Sharia and you will keep all your rights.

    BTW, this much is true. Libertarian-minded people don’t have to worry about a slippery slope. The removal of rights will be restricted to brown people and people who are Muslims. Just as we kept rights from blacks without taking them from whites, so can we do in the war on terror. The moral awfulness of that is no problem for many voters.

    Once a drone kills its first pretty white girl with a Christian last name, Nancy Grace will rise from the deep to devour the drone program and the war on terror in a sea of righteous outrage, as all killers of pretty white girls are so destroyed.Report

    • Avatar Shazbot5 in reply to Shazbot5 says:

      Or just as the Japanese, including citizens, hadrights removed during WWII, while whites were not, there was no worry of a slippery slope towards injustice to whites as there is no worry of a slippery slope towards injustice towards whites now.

      The problem is mostly racism, IMO, but I doubt many will agree with me.Report

      • Nob Akimoto Nob Akimoto in reply to Shazbot5 says:

        Remember how the US government summarily executed John Walker Lind?

        …oh wait.Report

      • Avatar James Hanley in reply to Shazbot5 says:

        Hey, the Court in Korematsu made clear that it wasn’t about race t all.

        It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice… To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, [and] because the properly constituted military authorities… decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast…

        See, not about his race or ancestry at all, just about him being Japanese.Report

        • Avatar Shazbot5 in reply to James Hanley says:

          That quote is hilarious.Report

          • Avatar James Hanley in reply to Shazbot5 says:

            Even the Dred Scott decision actually had better reasoning.Report

            • Avatar Stillwater in reply to James Hanley says:

              Maybe it’s not the best legal reasoning, but people do retain loyalties to their origins. So he’s right that the determination wasn’t racial. It was nationalistic. That might not be much better, of course.

              But I’m sympathetic. I mean, I haven’t lived in Chicago for almost thirty years and I’m still a Cubs fan, dammit.Report

              • Avatar James Hanley in reply to Stillwater says:

                Although weak, that distinction can be made. But Black also said it wasn’t about ancestry, and that one can’t really be separated from the nationalistic focus.

                Now if the internment had been about Cubs fans, it very well might have been justifiable, based on the unassailable logic of U.S. v. Yankee and Notre Dame Fans,, which clearly demonstrated that the Constitution authorizes the internment of fans of despicable sports teams.Report

              • I don’t think the Cubs can be considered despicable, simply because they’ve been so pathetic that you can’t really muster anything but pity.

                And I say this as a Cubs fan.Report

              • Avatar Patrick Cahalan in reply to Nob Akimoto says:

                That explains a lot.Report

              • Avatar Shazbot5 in reply to Stillwater says:

                He is saying race is our sole evidence of disloyalty to justify the camps, but if all we had to go on was race and not disloyalty, the camps weren’t justified, so all we have to go on is race, but even so the camps are justified because of the disloyalty, which we know about only because of race, but if race is all we knew about then we wouldn’t be justified in the camps, but we are justified in the camps.

                Ultimately, there is no logical contradiction in his statement, just racism and some pretty clearly unconstitutional law trying to hide itself under a lot of circular nonsense.Report

          • Avatar Shazbot5 in reply to Shazbot5 says:

            I mean, the event was morally monstrous. Sorry to be insensitive. But the reasoning is just ridiculous, like you can’t make this stuff up.Report

          • Avatar George Turner in reply to Shazbot5 says:

            There were other dangers the Japanese Americans presented. With the entire US auto-industry sidelined for war production, what if those internees had opened their own California car factory and took over the US market while we were busy overseas? Then we’d all be driving Toyotas and Nissans and Mitsubishis now, that’s what. What if they built an army of robots right in our own backyard, if not taking over through naked force then at least throwing American assembly line workers out of work, sabotaging our industrial competitiveness and union membership?

            What if they undermined public anger at Japan by showing us that sushi really is worth dying for? What if they countered all the Warner-Brothers’ wartime propaganda cartoons with superior anime productions, purchasing major Hollywood studios in the process? What if they used these studios to supplant our indigenous Western dramas with crazy ninja warrior/samurai martial arts flicks, and what if the American public bought into it?

            There’s no end to the damage they could’ve caused, irrevocably altering both our culture and our capacity and willingness to wage a two front war against countries that make better cars than we do. It just wasn’t worth the risk.Report

  8. Avatar Morat20 says:

    I’ve decided the problem is very simple:

    Americans, by and large, don’t get what “declaring war” or “authorizing military force” really means. By and large they ignore it (stuff blows up in distant lands). US casualities are light to non-existant, boots are rarely on unfriendly ground for long (Iraq and Afghanistan became more and more unpopular preceisely because boots stayed on unfriendly ground and casualities piled up).

    They do not get that “declaring war” does interesting things to the law, to the powers of Congress and the President, and to the standards society operates by. It doesn’t have to be nationalization and rationing and drafts, for instance.

    And by and large, while the war was against foreign people in foreign lands, no one cared where the limits of the President’s authority were or what powers wartime Presidents have or what criteria the military uses to decide attacks. Because it didn’t matter. This? This matters, because it was a citizen (if one hiding in Yemen and swarthy, but still — first they come for the brown people, and then what about the whites who tan a lot? Who knows were the slope ends!).

    But really, the authorization to kill this guy — the Administration covered it’s butt far more than would be the case in previous wars, probably because of the odd nature of this one. (No fixed battlefield, no easily distinguished uniform, etc). In WWII, for instance, they’d have just happily bombed the region this guy was in and no one would have batted an eye, for war was declared and he was in enemy colors so his citizenship didn’t matter. He was a legit target.

    How do we know? The military said so. That’s how wars are waged.

    But these days — nobody thinks about that, when military force is authorized. Congress certainly didn’t bother to circumscribe the AUMF, to place limits on it, to do any critical thinking at all. It simply…authorized.

    And I believe it’s because we take war so unseriously. But taking it seriously generally means listening to those crazy hippies, at least a little bit. And it’s much easier to pound our chests and bomb far away lands in the sure and certain knowledge that our casulaties will be light, and as Bush said — the best thing we can do for the war is cut taxes and keep shopping!Report

    • Avatar Jaybird in reply to Morat20 says:

      Here’s what I like about “Declaring War”.

      It’s possible to “Declare Victory.”

      After this, I am pretty sure the precedent is that the war is “over”.

      If Military Force is Authorized? THAT NEVER, EVER, EVER, EVER, EVER, EVER ENDS.

      I would prefer War being Declared to Military Force being Authorized.Report

      • Avatar Morat20 in reply to Jaybird says:

        Again, Congress’ fault. They crawled out of their post -9/11 fetal crouch to issue a very broad authorization of military force. A stupid one.

        Which has, bluntly, enabled everything since. In a lot of ways, I blame Congress far more than I blame either Bush or Obama for the last 12 years. (Bush I blame solely on torture. That was all on his administration, Congress certainly didn’t void the Geneva Conventions with the AUMF).

        Bush and Obama may have utilized executive power in a far reaching way, but that’s what Presidents do with the military in times of war. And Congress helpfully authorized it in a way that, as you noted, doesn’t end.Report

        • Avatar James Hanley in reply to Morat20 says:

          The problem is that presidents have realized Congress can’t really stop them, at least not as long as the public is supportive.

          This is why it’s such a shame that impeachment has come to be seen as a weird combination of an extreme measure and a highly politicized one. Were it seen as more legitimate to use regularly–something more akin to a vote of no confidence–it could be used more effectively as a meaningful legislative check on the executive.

          But that would probably require us citizens to stop seeing the office as such a special and almost godlike institution.Report

          • Avatar Shazbot5 in reply to James Hanley says:

            It would also require fixing the problem of low voter turnout in midterm elections. And as bad as the electoral college is, I think if Congress is going to have more power, we need to fix gerrymandering, which is worse. And the influence of money on small congressional races would need to be addressed too. (Presidential elections are so big and so covered, it is hard to buy one or even buy influence in one, but small races are a different story.) Congress is brokety broken as a democratic institution and we’ll need to fix it before we make the Presidency it’s lap dog. (I’d actually argue for scrapping the Senate or making it toothless, having The House elect a president (majority party picks a president) and strengthening the party system, while adding parties, thereby creating a parliamentary system.)

            It will also require people -to the extent they know anything about politics- to know what their local candidates are for, which is harder than everyone learning about one or two candidates on national news. (In parliamentary systems, people usually vote for the party, not the candidate, which makes it easier for people to know how to vote. They are really voting for one PM, not their individual member of parliament.)

            Although if we went with your more impeachment proposal and empowered Congress, that might create a democratic impetus to fix the problems with democratic representation in Congress. Not sure anyone has a system like the one you propose with such a weak president.Report

            • Avatar George Turner in reply to Shazbot5 says:

              Would you really want our country led by Jim Wright, Dennis Hastert, Newt Gingrich, Nancy Pelosi, or John Boehner? Of all the Speakers, only James K Polk ever sat in the big chair.

              We don’t have a parliamentary system because we never needed to work around the undemocratic and uncomfortable situation of having an archaic royal family and institutions endowed with the power of the executive branch.Report

              • Avatar James Hanley in reply to George Turner says:

                Actually, we don’t have a parliamentary system because Gouverneur
                Morris objected to James Madison’s plan to have the legislature chose the executive, from the Virginia Plan:

                7. Resd that a National Executive be instituted; to be chosen by the National Legislature…

                That met with almost no opposition, except from Morris, who spoke against OT in debate on July 17

                Mr. GOVERNR. MORRIS was pointedly agst. his being so chosen. He will be the mere creature of the Legisl: if appointed & impeachable by that body. He ought to be elected by the people at large, by the freeholders of the Country… -If the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment. He moved to strike out “National Legislature” & insert “citizens of [FN21] U.S.”

                Morris lost several votes on this motion over a period of days before successfully trading votes on another issue and shifting to an electoral college instead of popular vote as a compromise (the story is laid out clearly in William Riker’s The Art of Political Manipulation. Madison, of course, wrote a brilliant defense of this separation of powers model in Federalist 51, but he had proposed a more parliamentary model. Whether he was really fully persuaded by Morris’s arguments, or whether he made his argument purely out of political expediency (the sole and entire purpose of the Federalist Papers was to persuade New York to ratify–they were advocacy pieces, not dispassionate explanations–we’ll never know.

                But the idea that the original purpose of the separation of powers was anything more than Morris’s interest in preventing “intrigues” and “cabals” in the process of selecting the president is just one of our popular myths. We could have done just fine with a parliamentary system, Madison proposed one, and a solid majority of delegates to the convention were quite willing to agree to one.Report

              • Did William Riker also write anything about how well Captain Picard did with political negotiations and diplomacy?Report

              • Avatar James Hanley in reply to Nob Akimoto says:

                That was his great great great great great great grandson, William T. Riker, not William H. himself.Report

              • Avatar Mike Schilling in reply to James Hanley says:

                We’d have a parliamentary system if only his parents had named him “Seunateur”.Report

            • Avatar James Hanley in reply to Shazbot5 says:

              I’m in much agreement, but want to add this. The fundamental problem for Congress vis a vis the executive is that the executive is a much more unified actor than is the legislative. Checks and balances break down because there is no one whose primary concern is the interest of Congress as an institution–there are only individual constituency interests and the interests of committees as separate “little legislatures.”

              I, too, think an end to gerrymandering would help, some, but my point above was made also by Woodrow Wilson in his doctoral dissertation, “Congressional Government,” in 1885, which makes me pessimistic that gerrymandering would accomplish as much as I wield like to hope.

              I think our only serious hope for reining in the executive is constitutional amendment, but I don’t know what kind if amendment would be required (well, mist likely, following your prescription of shifting toward a parliamentary system), nor do I think there’s even a faint prospect of that happening, given Americans’ disdain for the institution of Congress and our perpetual pinning of hopes, in each election, on the presidency as our prospective savior.

              We are doomed, and I say that without the slightest levity.Report

          • Avatar Michael Drew in reply to James Hanley says:

            It doesn’t seem to me that a lack of means perceived as legitimate are the constraint on Congress that is actually driving the outcome we’re currently seeing. After all, its’ not as thought it is using all the means at its disposal short of impeachment to reign in the administration’s excesses in fighting terrorism (or what it does ostensibly for that purpose). It’s not the politicization of impeachment that takes it off the table (though it might be off the table for that reason as well); it’s the lack of sufficient political will, or even interest, to impose any check on what the president does in this area. There are lots of things Congress could be doing short of impeachment to impose that check that it is not doing (which is not an argument that impeachment wouldn’t be legitimate on some counts, though I’d be interested in hearing what the most outstanding of those would be). It’s a misdiagnosis of the dynamics at work to point to the politicization of impeachment (a process placed purposely in the primary political branch in any case) as a constraint on Congress’ ability to check the executive. Indeed, it’s not clear that Congress couldn’t significantly constrain the executive even in this area if it wanted. It’s not that presidents have realized that Congress can’t stop them as long as the public supports what they do, it’s that Congress doesn’t want to do much at all to constrain presidents in this area as long as the public doesn’t feel that the president has gone a lot further than it wants them to (or in any case as long as there’s little electoral upside and great potential downside within a majority (more or less) of districts and states for individual members in taking that kind of adversarial position w/r/t the general drift of executive policies on these matters, or particular individual policies, for that matter.

            If the politics of all that in Congress fundamentally changed, I think it’s entirely possible that procedural avenues that now look completely impassible or abandoned could be embraced again with some dispatch, possibly including impeachment in the right circumstances. Not guaranteed, but plausibly. It’s not like impeachment was ever really that far off the table; it’s been threatened or used twice in the last forty years.Report

          • Avatar Morat20 in reply to James Hanley says:

            Congress can. Congress doesn’t want to.

            There’s a difference.

            Meanwhile, Congress is busy “not filibustering” Hagel (if I was a Senate Democrat, I’d currently be looking for Reid and carrying a bat) and, of course, acting like clowns.

            Nothing will get done in the next four years other than the absolute bare minimum, which I should note has been redefined over the past few years to be even more bare minimum than before.Report

            • Avatar James Hanley in reply to Morat20 says:

              Michael and Morat,

              I maintain that Congress can’t, not as a matter of lack of legitimate political authority, but as a matter of realpolitik. Congress is almost wholly incapable of functioning as a coherent, cohesive, institution, in the way a parliament can. It almost never has been able to, as Wilson’s 1885 critique reveals.

              That didn’t matter when presidents were weak, but they were weak because they owed their selection to their party’s leaders in Congrsss and a handful of other party bigwigs. They were never constrained by Congress, really, but by a handful of their own party’s congressmen, and those party leaders rarely chose strong leaders (except by accident), both because they wanted someone they could dominate and because anyone who was particularly strong and assertive had usually managed to offend/alienate at least some of those leaders who played a hand in selecting their party’s nominee.

              The rise of the candidate-centered campaign, with candidates who are self-selected and reliant on appealing to the public, rather than to their party’s leaders, changed all this. The primary system for selecting nominees cements the president’s responsiveness to the public, rather than to their own party leaders. (This is why I do not care about direct popular election as an issue–popular selection of candidates makes it irrelevant from a presidential checks and balances perspective, because the final selection, however it’s done, is simply a choice between two candidates unwilling to accept any legislative restraints).

              If Congress tries to constrain the president, appeals to the public nearly always work in the president’s favor. Only he can command the airwaves and the public’s attention; only the president has the whole country, in some respects the whole free world, as his constituency. Congressional leaders representing only a single state, or worse, a single district representing merely one portion of a state, cannot compete effectively. The president is Harrison Bergeron without handicaps.

              This is what Wilson wanted. He bemoaned the lack of national leadership that resulted from congressional government–“leadership by a disjointed set of “little legislatures” (congressional committees) and a non-independent executive.

              Initially Democrats approved the strong executive, glorifying the model of FDR. Then came LBJ, initially the very model of the strong executive, but in the end a nightmare instead if a dream, baldly lying to the public to lead it ever deeper into an un pwinnable war,. And then Nixon. And suddenly we were all talking about the imperial executive. Republicans were delighted–their fears of strong executives seemed validated. Then came Reagan, with the unarguably impeachable offenses of Iran-Contra, and having finally regained the ability to be very competitive in presidential elections (without relying on a national hero like Ike), but having bad their previous electoral winner forced out, they were unwilling to act. Then came Bush II, and suddenly Republicans had wholly abandoned their objections to a strong executive and were promulgating the foolish and ahistorical unitary executive theory, justifying a more powerful and more fully unchecked president than ever Wilson imagined.

              And we still have not learned. We still think it is the men, and not what the office has become. We are horrified by a succession of presidents with ever increasing claims to power, but fail to realize that each successive one is simply taking his predecessor’s marginal expansion of power as the new baseline–power that is never ratcheted down, only up–and we continue to fool ourselves into thinking that choosing the right man will solve the problem (as we continue to reward only candidates who make grandiose promises that could only be accomplished by presidents with yet even more power), or that Congress simply needs to grow a backbone (although we would punish those legislators who dared to do what we ask, and they damn well know it).

              We are, my friends, doomed. The executive tyranny is growing, and it is entirely impersonal and non-partisan. It is not a purposeful tyrant, such as a Hitler, that we have to fear, or a military coup resulting in a strongman like Qadafi. We will have readonably good well-intentioned men who are simply handed too much power and told that national security depends on them making active use of it.

              Ok, enough of my street corner soapbox the-end-is-coming preaching. But I entreat you with my very soul, do not settle for the comforting but false belief that Congress still has effective means to roll back the tide. We have demanded this continued growth in executive power–complaining only about the other party’s use of it, never seriously and effectively complaining about the increased power itself (or at best only a vanishingly small, non-organized, and non-persuasive portion of us do)–and Congress dare not go against the great majority of us.Report

              • Avatar Michael Drew in reply to James Hanley says:

                This seems like a detailed explanation of why it’s politics and individual interests, not something like the perceived politicization of impeachment or the lack of other means that keeps Congress from reigning in the executive. Which is what Morat and I were saying, and not what you were saying, at least not as far as I could tell where you emphasized the fact that the politicization of impeachment took a tool off the table that otherwise might allow Congress to do that.Report

              • Avatar James Hanley in reply to Michael Drew says:

                a detailed explanation of why it’s politics and individual interests, not something like the perceived politicization of impeachment or the lack of other means that keeps Congress from reigning in the executive.

                So “politicization of impeachment” isn’t politics? I’ll have to chew on that one.

                My point is that impeachment is not a credible threat because it has, in an ironic combination, come to be more political than substantive, and seen as an extraordinary, nearly unthinkable, substantive tool.

                And so with impeachment off the table, we turn to consider what else would allow Congress to reign in the presidency, and we find that the transformation of the president into a popularly selected leader, particularly coupled (although I did not emphasize this) with the national security state, means Congress has no effective means. And that, most assuredly, is not what you and Morat were arguing. The problem is much deeper then either of you were focusing, and is not a problem centered on Congress’s failure of will, but on the inexorable growth of the presidency.

                In other words, you aren’t diagnosing the problem correctly, so you’re not going to find the right solution.Report

              • Avatar Michael Drew in reply to James Hanley says:

                If impeachment is off the table (for whatever reason), and therefore is not a means for Congress to use, then no, that is not the sense in which we were arguing that politics is what determines that steps to reign in the executive are not made. Fair enough, if that is because of its politicization, then great, that’s politics too, but the argument was ver whether the unavailability of impeachment or lack of other other means are the determinants of Congress’ failure to reign in the executive that actually in the event are keeping it from doing so.

                And, regardless of your claims to the contrary, you’ve made the case convincingly that that is not the case, but that, rather, it’s the relative political strength of the presidency, especially in the area of the politics of national security that does so. That’s what we were saying determines the outcome too. We never denied the growth of the power of the presidency is the fundamental problem here. We just said that the Congress does have some means available to it, and regularly demonstrates its lack of interest in using them. We never said that the president’s power could effectively be dialed back by Congress to levels you’d like to see. (I don’t really understand in any case how it is you can assert that the inexorable growth of the presidency can be co totally separated from the disposition of Congress over that time. It’s a claim about relative power to large extent in any case. You may have a slightly more institutionally-determined view of those politics than we do, but we’re both talking about the same thing.)

                You keep saying that the Congress lacks sufficient means to effectively check or roll back the growing power of the executive. That may be; we haven’t denied it. But what you keep proving is that institutional factors drive the politics in such a way that essentially no attempt is made. We know this because means that no one thinks the Congress doesn’t have, sufficient to achieve any particular amount rollback or not, routinely go unutilized (attachment of conditions on funding of military operations; motions for repeal of AUMF, etc.). That was the simple observation we made: that what means they have they aren’t using. That means that the actually-operating determinant of whether an effort equal to the task of rolling back executive power to the degree you or I or Morat want to see is not a lack of effective means to do it (though that constraint might also exist, even though it’s not currently being run u against, and is therefore not currently determining outcomes), but rather whatever it is that determines Congressional will and/or interest in mounting that effort to begin with (politics, institutional dynamics, politics driven by institutional dynamics, the evolved political communication advantages of the presidency, etc.)

                We may not have had the right diagnosis of the problem, but we never tried for it. The point was that a lack of means was the wrong diagnosis as well. You’ve made a convincing case for what is at the root of the lack of interest reigning in the executive that is demonstrated by the fact that Congress leaves legitimate means for doing so lying on the table unused. You haven’t made a case that it is lack of means that determines this outcome.Report

              • Avatar James Hanley in reply to Michael Drew says:

                (I don’t really understand in any case how it is you can assert that the inexorable growth of the presidency can be co totally separated from the disposition of Congress over that time.

                Because the primary institutional drive is the removal of party nominees from the grasp of Congressional leaders to the public. What that shift revealed is that Congress never really had any effective means to constrain the executive except control over the selection of the party’s nominees.Report

              • Avatar James Hanley in reply to Michael Drew says:

                You’ve made a convincing case for what is at the root of the lack of interest reigning in the executive that is demonstrated by the fact that Congress leaves legitimate means for doing so lying on the table unused.

                Actually, no. That interpretation means I didn’t make the argument clearly enough.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Okay. It continues to seem to me that the upshot of your arguments goes more to members’ of Congress inclinations than to their potential available means to check the Executive, but you’re welcome to continue to try to get me to see why that’s not so.Report

              • Avatar BlaiseP in reply to Michael Drew says:

                I have a theory about why Congress won’t act to restrain the power of the Executive. It comes in two parts:

                1. If a Congressional majority takes away powers from the President, they are also taking away those powers from a future president more to their liking. And since they are all addicted to power themselves, each Congresscritter sees this as a potential limitation on himself, should he be elected President. Never did Congress remove any of its own powers: look at Harry Reid’s recent acceptance of the 60-vote filibuster rule. They know any such law or even informal ruling will fall on them as surely as their political enemies.

                2. Congress doesn’t want to deal with the tough issues. Over the last three decades, as more power devolves upon the Executive and SCOTUS, Congress is thereby absolved from responsibility.Report

              • Avatar James Hanley in reply to Michael Drew says:

                It continues to seem to me that the upshot of your arguments goes more to members’ of Congress inclinations than to their potential available means to check the Executive, but you’re welcome to continue to try to get me to see why that’s not so.

                I find that frustrating, since I’ve been explicitly arguing that it’s not about their inclinations, but about the real-world effectiveness of their means. I’ve noted that the problem of Congress’s lack of coherence as an institution–it’s structure as a bunch of mini-legislatures, and members focused on constituent interests rather than the interests of Congress as an institution vis a vis the president–go back to at least 1885. I’ve emphasized that its only effective control over the executive back then was congressional leaders’ ability to select party nominees, and that this power was lost to them by the rise of candidate-centered campaigns (made possible in large party by modern media) and the resulting popular selection of party nominees.

                I don’t see anything in there that mentions, or even hints at, the inclinations of congressmembers. And I do see explicit and repeated reference to the means available to them.

                Assume the inclinations of congressmembers, collectively, hasn’t changed, and that they’re just as interested in constraining the executive as they ever were. The changes I’ve mentioned would mean they’re unable to constrain the president as they once did, because the only effective means they ever had is lost to them.

                Assume the inclinations of congressmembers to constrain the executive has increased (as it surely did, at least temporarily, after Vietnam and Watergate). The changes I’ve mentioned would mean that their increased inclination is to no avail, because the only effective means they ever had is lost to them.

                Finally, assume the inclinations of congressmembers to constrain the executive has decreased. The changes I’ve mentioned would mean that their decreased inclination is very nearly irrelevant, because they would no longer have effective means anyway.

                It simply doesn’t matter how much we care about X, if we have no means of doing something about it. Some people prefer to focus on the issue of whether we care enough; I prefer to focus on the institutional question of whether caring could actually be turned into effective action.

                If that doesn’t make it clear enough that I’m talking about means, not inclination, then I’m afraid I have no idea how to make my position any clearer.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                I had to run out after that comment, but I realized thinking about it that I wished I had said that I thought what you’ve said goes to inclination as well as to means, and make clear it wasn’t totally lost to me that it went to means as well. Clearly your account of the change in nominee selection goes to one means, by your account the only one that was ever (or is even possibly?) effective.

                But this part, I think has explanatory power as to members’ of Congress inclinations to do it:

                If Congress tries to constrain the president, appeals to the public nearly always work in the president’s favor. Only he can command the airwaves and the public’s attention; only the president has the whole country, in some respects the whole free world, as his constituency. Congressional leaders representing only a single state, or worse, a single district representing merely one portion of a state, cannot compete effectively. The president is Harrison Bergeron without handicaps.

                In order to decide to use whatever means may exist to reign him in, Congressmen who care to keep their jobs are first going to want to be sure they think they can win a political fight on the issue with the president. And it’s not like these presidential advantages preclude members of Congress from ever joining political fights with presidents. Sometimes they do, and sometimes they win. But they mostly haven’t on this issue. I think that says something about their inclinations as well as saying something about the means available to them.

                And I think you’ve taken as granted that, beyond the party-control mechanism that was once in place, no other means that may be available is worth considering in this analysis. The analysis, again, is not as to whether sufficient means exist for Congress to successfully reign in executive power. The analysis is as to whether that is the constraint that currently in fact leads the Congress not to attempt to do that using whatever means are available.

                In each of your conjectures as to Congressional inclination as to reigning in the executive, you assume that there are no effective means for them to do so. Beyond not having shown that the means you talk about having been lost are without doubt the only potentially effective ones, you also don’t make clear why the use or non-use of other means (ones you don’t think will be successful, but which members of Congress frequently say they believe could be, and are in any case the appropriate remedies for what Congress believes is executive overreach) would be indicative of whether it’s actually a lack of means that keeps Congress from attempting to do it rather than a lack of sufficient inclination to do so.

                Maybe putting greater limits on military appropriations, perhaps defining the legal boundaries of the drone campaign or restricting the language of AUMF, or suchlike wouldn’t in the end be sufficient means of constraining the presidency. But why doesn’t the complete failure to even credibly threaten such measures (there is, after all, about 85% of one party and about 65% of the other that as a matter of substantive positions don’t believe that those kinds of measures are desirable just substantively, after, which right there should suggest that the immediate problem is inclination and not means) indicate that the determinant of action or lack there of in the actual event today is a lack of means (or effective means), rather than a lack of inclination?

                Your view is that no means exist that can be effective at restraining the presidency. That might well be true, but in determining what determines Congressional action or inaction, why does that make it irrelevant that some means do exist, and that they aren’t being used? Do we agree that members of Congress do continue to make statements to the effect that the means they do have are not entirely vain and remain a vital recourse, even if they are not necessarily capable of achieving the degree of rollback some members may like to achieve? If your case is that the lack of effective means saps their interest in attempting to check the executive because it is a futile fight, it seems to me that there’s some burden of proof you have to meet to show that this is the effect that is taking place, despite members’ frequent or occasional statements suggesting otherwise.

                There may not be effective means, but there are means available. They are not used. On its face does this not suggest that the problem is a lack of inclination? Don’t you have higher burden than you have met to show that 1) the means available certainly do not have the potential to check the presidency to some meaningful extent; 2) that members of Congress believe this: 3) that believing this guides their action in not using their available means, and 4) that this is all really, truly happening as opposed to just being a reasonable conjecture for which there is some evidence (and maybe 5) that if the lack of effective means saps inclination to use whatever means are available, that this doesn’t mean I’m still kinda right, in that the proximate reason for inaction is still disinclinaton? I mean, they could, after all, choose to go ahead with a vain but symbolic effort anyway; you never know, the symbolism could change the politics or something…)Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Aargh, quote ends after first paragraph.Report

              • Avatar Shazbot5 in reply to James Hanley says:

                “I maintain that Congress can’t, not as a matter of lack of legitimate political authority, but as a matter of realpolitik. Congress is almost wholly incapable of functioning as a coherent, cohesive, institution, in the way a parliament can. It almost never has been able to, as Wilson’s 1885 critique reveals.”

                Totally agreed with this for a zillion reasons,

                I think the question to ask Morat is why is Congress so unwilling to constrain the presidency? Why didn’t the Dems bring Bush to heel post post 2006, for example.

                As they answer that question, you and Morat and Michael will find that you agree about alot. It is not just the current Congress that is broken, but Congress as an institution has been cracking and breaking more and more, because the incentives for individual members of Congress are all messed up, and not just by money in politics.

                By contrast. in a parliamentary system, the majority party (or coalition of parties) is easily seen as responsible for what happens in the country while they are in total power. Not so in the U.S., where one party can screw the country (through the office of the presidency or Senate or House) and the other party will take the blame.

                Make it simpler. The people will pick either liberal governance, conservative, theocratic, libertarian, or House Harkonnen for 2 years (or 4), and if they don’t like what they see in action, they vote for someone new. That way the party in power only has once incentive (apart from getting campaign donations, which is a a separate problem): make people want to vote for you by passing the right laws and governing well. No one has the incentive of pretending to be for such a law, but only if it has such an with a poison pill clause, etc.

                The whole idea of the Congress is that the elected are expected to come together and make all sorts of great agreements, between say climate change deniers and Sierra Club supporters on environmental policy. How is that workin out for us?

                James is right. It used to sort of work (in a the aristocrats govern okay, even if it is really awfully undemocratic, sort of way) when party bigwigs negotiated with major organizations like unions and big business to control the presidential nominees and put heavy pressure on Congress. It wasn’t democratic in the olden days, but it ensured that important legislation that big groups wanted (including unions, who pushed for middle class stuff) often got passed. But those days are gone, the parties are weaker, and Congress and the Presidency have no reason to agree on policy, and the presidency is more and more forced to act without legislative authority. See the President’s dream act, future EPA regulations instead of climate legislation, the refusal of Dems in 2006 and use legislation to end the war in Iraq, and the current Congress’s refusal to take responsibilty for creating a legal framework around the so-called “war” on terror.Report

              • Avatar James Hanley in reply to Shazbot5 says:

                I think the question to ask Morat is why is Congress so unwilling to constrain the presidency?

                I really don’t see that as even being a very relevant question.

                the parties are weaker

                An important point that I glossed over; I’m glad you introduced it.Report

              • Avatar Shazbot5 in reply to James Hanley says:

                I think ot’s important becaus Morat thinks there is an important distinction between saying Congress won’t restrain the executive and Congress can’t restrain the executive. (He says that you maintain the latter, while he only maintains the former. His solution is new Congress people who will do different things; your solution is to change Congress itself.)

                I mean to say that if you look at the causes of why the Congress “won’t” restrain the executive, you see that the problem is not these individual Congress people (though they are fools), but that the fact that there are powerful political incentives that make it extremely unlikely that Congress would restrain the executive. Thus “can’t” is truer than “won’t” when you examine the causes of “won’t.”Report

              • Avatar James Hanley in reply to Shazbot5 says:

                I think you accurately capture the difference between Morat’s argument and mine.

                If I were allowed to edit your comment I would change your penultimate sentence to:
                “there are powerful political incentives that make it extremely unlikely that Congress would be able to restrain the executive.”

                On second thought, one more minor quibble. It’s not just, or even primarily, changing Congress that I advocate, but changing the executive. Although to be sure, shifting to a parliamentary system is indeed changing both institutions.

                I think it’s quite ironic that it turns out that Morris and Madison, were wrong–an executive folded into the legislature seems easier to constrain than one so separated from the legislature, despite the formal checks built into the constitutional structure.Report

  9. Avatar M.A. says:

    What is Al Qaeda?

    http://en.wikipedia.org/wiki/Al-Qaeda

    al-Qaeda (pron.: /æl?ka?d?/ al-ky-d?; Arabic: ???????? al-q??idah, Arabic: [ælq????d?], translation: “The Base” and alternatively spelled al-Qaida and sometimes al-Qa’ida) is a global militant Islamist organization founded by Osama bin Laden at some point between August 1988[15] and late 1989,[16] with its origins being traceable to the Soviet War in Afghanistan.[17] It operates as a network comprising both a multinational, stateless army[18] and a radical Sunni Muslim movement calling for global Jihad and a strict interpretation of sharia law. It has been designated as a terrorist organization by the United Nations Security Council, NATO, the European Union, the United Kingdom, the United States, and various other countries (see below). Al-Qaeda has carried out several attacks on non-Muslims,[19][20] and other targets it considers kafir.[21]Report

  10. So why don’t we declare the Mexican drug cartels to be terrorist organizations? Certainly they seem to be killing as many Americans, and doing as much other damage, as al-Qaeda has managed to do (they just have enough sense to avoid the single spectacular event, I guess). Then we could start running midnight commando raids and drone strikes and not bother notifying the Mexican authorities or worrying about the collateral damage, right? And we can get a jump on the whole “occupation of a failed state” thing, too. After all, the most recent Joint Operating Environment document I’ve seen from the Pentagon puts the possibility of a failed Mexican state high on their threat list.Report

  11. Avatar CK MacLeod says:

    The post subverts itself. By its own definitions, the intolerable corruption of our “liberties” has already occurred. The very existence of the post, and of so many like it, and of the voluminous if not always very useful discussions they inspire, reveals how limited the damage to those liberties actually is.

    This observation is not the same as saying that the indicated problems and challenges are unimportant, or inherently uninteresting – I find them quite interesting – but how many of the “citizens” here are in fear of being mistaken for terrorists, or would have any reason to feel that way under an utterly open-ended continuation of the “war” as it is? It’s like insisting that a viral infection is an intolerable corruption of the pristine human body. Carried out for another century at current rate, the low level “drone campaign” might account for around as many casualties as a single year of covert bombing in Cambodia, to say nothing of comparisons to the entire Vietnam War, or the entire Korean War, or all of World War II, or the Civil War, and so on all the way back to the Revolutionary War. Every armed conflict involves gross compromises of ideal liberty.

    Did a single season of any of those wars involve less such compromise than a century or a millennium of the current war or militarized low level conflict would require? So is the real position here not implicitly pacifist and essentially anti-political, in the sense of insisting on an impossible polity inherently incapable of defending itself or its integrity against any violent opposition, whether from actual states or from non-state (actually crypto- or proto-state) actors?Report

    • Avatar Jaybird in reply to CK MacLeod says:

      How uncharitable would it be to reinterpret this argument as “FYIGM”?Report

    • Avatar Kolohe in reply to CK MacLeod says:

      What makes Radical Islamic (or other kinds of) Terrorists more of a threat to the social and political order than the dude that breaks into a house to steal stuff, or the dude that drives 10 mph faster than other traffic cutting in and out of lanes?

      As said above by others, war has historically mostly been state on state, or at least polity on polity. More importantly, as said above, wars end. Even in the specific cases of Rebellion, whether it be the American Confederacy or the Vietnamese VC, wars end.

      Now, granted, insurgent campaigns can drag on for seemingly unending decades, sometimes ending in victory (e.g. Algeria & Cambodia), sometimes ending in defeat (e.g. Shining Path & LTTE). But that raises the question: Why does the United States *have* to get involved in interminable guerrilla campaigns? Moreover, why can’t it treat specific threats to its (the USA’s) own body politic as a criminal matter, the way every other threat to the body politic is treated? (or should be. Then there’s the drug war exceptions, but that’s another topic.)(though not entirely)Report

      • Avatar Creon Critic in reply to Kolohe says:

        Each threat to security needs to be treated on a case by case basis with a presumption to using the regular criminal justice. The highlights of a case for al Qaeda going beyond criminal justice: Common criminals usually aren’t pursuing WMDs. Common criminals don’t usually target US military and diplomatic installations around the world. Common criminals aren’t usually part of enterprises that desire to kill Americans (and allies) wherever and whenever (with a track record of successfully killing thousands). Also, common criminals usually don’t have UN Security Council resolutions declaring their acts a threat to international peace and security.

        Also, the Taliban-al Qaeda nexus following 9/11 meant that war was going to be an option.Report

        • Avatar Kolohe in reply to Creon Critic says:

          I don’t oppose fighting a war against the Taliban 10 years ago. But a lot of time has passed since then, and we’re not fighting the same war for the same goals anymore.

          Dead is dead, whether via a drunk driver, a career criminal, or a political terrorist. The former two kill a lot more Americans than the last one does. Yet we don’t drone them.Report

          • Avatar George Turner in reply to Kolohe says:

            But we could. Detecting drunk drivers from the air via an automated system that measures their drifts and deviations, in both frequency and amplitude, should be fairly easy, and we could use targeting profiles that would minimize collateral damage.

            During prohibition the government poisoned illegal liquor, by one estimate killing ten-thousand Americans just to drive home the point that alcohol kills (Slate link).

            I’d think a few thousand drunk drivers a year killed by drone strikes would be right in line with that kind of thinking.Report

            • Avatar Stillwater in reply to George Turner says:

              I like the idea, but I think it needs a little tweaking. How bout a two part plan. Part one is a signal conveyed to the driver by eloctrotronicimagery that he’s DRUNK and that the gummint knows he’s DRUNK, so he better just pull over and wait for the cops to arrive, buddy. The second phase is that drivers who don’t pull over are fair game for targeted drone strikes. They clearly had the chance to turn themselves in.Report

            • Avatar George Turner in reply to George Turner says:

              Ooo… Good idea!

              If people object to the drone strikes, we could modify the drone to display a negative image of the roadway (like a photographic negative) in front of the car, optically erasing the roadway, and then overlay an image of a completely different road on top of that. At night that would be pretty easy, once you adjust to compensate for the car’s headlights. Then the drunk driver will either see the road curve when it doesn’t, or see it go straight when it turns. They’ll all drive straight into trees or off cliffs and the government will have complete deniability, and just increase funding for drunk driving education and alcohol enforcement. It’s win-win, unless you happen to think the government shouldn’t be secretly assassinating citizens as a form of behavioral control.

              BTW, if government critics or foreign enemies start having frequent, unexplained fatal accidents on empty roads, you’ll know the method made it to beta testing!Report

              • Avatar Stillwater in reply to George Turner says:

                Who would object to the drone strikes? We’re currently using them in Afghanistan yaknow, and it’s not like anyone’s objecting to that.Report

              • Avatar George Turner in reply to George Turner says:

                I don’t think anyone would object to drone strikes in a place like Afghanistan, where the roads are more of a perception than a paved surface and people will patiently wait all day to get ferried across a river by a donkey barge, but we have divided highways and morning rush hour. Even if the drones limited their attacks to drunks in the slow lane or the emergency lane, people would still rubber-neck every morning and cause massive traffic jams.

                One of the advantages of the faked roadway imagery as a method of executing drunk drivers from the air is that it would necessarily entail luring them far from the roadway so they’d impact a tree or cliff, causing minimal disruption to the morning commute. People probably wouldn’t even suspect anything was going on, and it would be trivial to also have the drones monitor license plates to match any targeted kill lists from the White House, with the victims just disappearing into the noise of drunk or reckless driving fatalities.

                I can’t see how any upstanding American could be opposed to the scheme.Report

          • Avatar Creon Critic in reply to Kolohe says:

            Does context matter? Does intent matter? Does the fact that drunk drivers, by and large, do not set out to kill make a difference in your analysis? And drunk drivers don’t belong to an organization with a command structure that’s planning their activities, a hierarchical organization whose object is the killing of Americans, a distinction without a difference in your view?

            Career criminal is more difficult to assess without choosing a specific type of crime, but the same questions apply. Let’s say one organization kills in order to advance the illicit trade of goods, killing being incidental to the primary goal of making a profit in moving a product from point A to point B. Another organization sets out to obtain the most deadly weapons to kill as many people, indiscriminately, with the object of making a political point. Do those distinctions as to aims matter?

            If “dead is dead” then our legal system makes a whole lot of fine grained distinctions about intent, premeditation, mens rea and such, that are apparently superfluous.Report

            • Avatar Kolohe in reply to Creon Critic says:

              You know what our legal system doesn’t do? Identify a class of crimes where it’s permissible to shoot on sight. (Like JB said above, we’ll see if there’s a practical though of course not codifies exception if the crime one is accused of is ‘cop-killer’)

              Hell yeah, mens rea matters. There seems to have been a trend lately, that our legal system takes it into account less and less, but that’s another matter.

              If you don’t see that having a class of crimes that are ‘exceptional’ and beyond the usual rules, and you don’t see how that line could shift and/or be abused then OPRE.

              The existential threat from terrorist actions in the United States is non-existent – which is not to say that it’s eminently possible, even likely, for terrorists to harm people in the US now and in the indefinite future. The magnitude of the threat does not rise anywhere close to a threshold where we need to throw out the underpinnings of our legal system, especially when such a system deals with far more deadly dangers to the average citizen and resident. It is questionable, really, if there is any justification for throwing out certain rules. As even empirically every time we have done so (e.g. Korematsu) we have found in retrospect to have gone ‘oops.’

              Furthermore, because of stuff like the drug war and other moral panics (like drunk driving), the ideals that form the foundation of our legal system have long been corrupted. But just because the system is already compromised, doesn’t mean that further erasure of principle is anyway justified.Report

              • Avatar Creon Critic in reply to Kolohe says:

                Massive agreement on OPRE, I started on that but then deleted it because it seemed like too much for one com,ent, but absolutely. As you outline, assessing the threat al Qaeda poses influences the categorization of their activities and the warrant of power given to the security services to stop them.

                “throw out the underpinnings of our legal system”

                Well, jumping right back into the issue then – we have some of the chief officers of our legal system outlining the mechanisms for making the urgency of the situation and our policies conform with legal requirements (Holder, Koh, and Brennan speeches mentioned upthread). They might not be convincing to you, but sometimes it seems that Greenwald, Kuznicki, and any number of critics write as though these arguments were never set out. Instead choosing to argue with straw men and phantoms. Witness the rather bizarre “What is al Qaeda? Experts have described it as a ‘way of working.’”, or the repetition of the line (to his credit not in this post for Kuznicki) that the administration is acting without oversight.

                “The existential threat from terrorist actions in the United States is non-existent – which is not to say that it’s eminently possible, even likely, for terrorists to harm people in the US now and in the indefinite future.”

                There’s a respect to which I think civil liberties advocates are correct, which is that we are capable of remaking our society into a monstrous thing due to 9/11. With 9/11 they cry out about overreach and government intrusion (in my estimation sometimes correctly, sometimes incorrectly). Now imagine another spectacular attack from al Qaeda, what do you expect of an American response? Approximately 3,000 deaths led to more than a decade of war, tens, if not hundreds, of thousands of deaths overseas, the Department of Homeland Security, and so forth. What would another spectacular attack do? Do you suppose any president could respond as the Norwegian Prime Minister responded to Utøya? More democracy, more openness, love, standing together – could an American president do such a thing after a spectacular terrorist attack? The most recent ones to confront these circumstances have not. I understand that for some this will read awfully like, “we had to destroy this village to save it”, but as mentioned at the outset OPRE.

                I think Obama presents a fair reading:

                But as a head of state sworn to protect and defend my nation, I cannot be guided by their [Gandhi and King] examples alone. I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A non-violent movement could not have halted Hitler’s armies. Negotiations cannot convince al Qaeda’s leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism – it is a recognition of history; the imperfections of man and the limits of reason.

                Report

      • Avatar CK MacLeod in reply to Kolohe says:

        Moreover, why can’t it treat specific threats to its (the USA’s) own body politic as a criminal matter, the way every other threat to the body politic is treated?

        Because American citizens in active and passive exercise of their mass liberal-democratic freedoms as mediated through their mass liberal-democratic institutions by near-total consensus have mass liberally-democratically initiated and re-confirmed a durable super-majoritarian preference for a militarized rather than non-militarized mode of operation against designated violent opponents of the mass liberal democratic state, in reinforcement of traditional Article 2 powers of the Commander-in-Chief and modern presumptions regarding action against particular threats subject by definition to post hoc mass liberal-democratic legal and political checks only. If you don’t want a state that can kill without first asking for another vote or set of votes each and every time, or don’t want a state that can kill at all, or don’t want a state at all, then you have a lot of work or more likely, in my opinion, psychological adjustment to do. If the latter proves impossible for you, just be sure that the work you do does not extend to violent activity, or we may very well well send a Predator after you.Report

        • Avatar Stillwater in reply to CK MacLeod says:

          CK, your Flesch-Kincaid grade-level for this comment was 28.9. Woohooo!Report

        • Avatar Kolohe in reply to CK MacLeod says:

          Well, no shit, the American public likes war as long as Americans aren’t dying. And freedom and liberty aren’t actually natural preferences in the human species. Well, people like their own well enough, but don’t really care about other people’s that much, particularly when they’re ‘others’.

          But we didn’t drone the snot out of the Hutaree jackholes either.

          That’s the central question: why not? Sure, there’s the ‘that’s the way the world works’ answer, and you’d be right, but of course begs all other questions of ethics and morality that should inform the liberal democratic consensus (by educating and debating among the body politic) on the actions the State needs to take on behalf of the Safety of the Public.Report

          • Avatar Stillwater in reply to Kolohe says:

            the American public likes war as long as Americans aren’t dying.

            That’s a tough to claim defend I think. It assumes that Americans have a first order preference for war, rather than a preference for war as a solution to various problems that arise. This is one of those times where I think the libertarian description isn’t quite right and that the criticism being expressed is misplaced. From the libertarian pov, it seems more accurate to say that Americans ought to prioritize non-aggression more than they in fact do. That’s a normative claim, of course. But insofar as CK was merely describing things – and not offering any judgment on that description – he’s probably right (or atleast I agree with him) even tho your normative claim could be entirely justified as well.

            And freedom and liberty aren’t actually natural preferences in the human species. Well, people like their own well enough, but don’t really care about other people’s that much, particularly when they’re ‘others’.

            Again, I think this begs some questions. If you ask lots of liberals and especially conservatives about the US’s role in opposing the spread of communism, they’d justify those actions in part of perhaps even completely as a defense of individual freedom. I’m don’t entirely agree with argument that myself, but there’s an aspect to it which seems pretty uncontroversially correct.Report

            • Avatar Stillwater in reply to Stillwater says:

              {The F-K score on that comment was 11.3. If I merely replace the periods with commas I get a score of 17.7, tho. Of course, it’s entirely unreadable at that point…)Report

            • Avatar Mike Schilling in reply to Stillwater says:

              I think it’s fair to say that the neocon meme that preferring diplomacy to purely military solutions is a sign of weakness has made considerable progress in the US since 2001. In some ways, since 1981, since support for Reagan’s defense buildup was a response to Carter’s perceived weakness, but Reagan didn’t hesitate to negotiate with Gorbachev, or grant the USSR a status of equal negotiating partner, when he thought it was in the American interest to do so. (Note that Perle, Cheney, Rumsfeld, and right-wing punditry in general roundly criticized Reagan for this.)

              At any rate, when I hear “You can’t negotiate with Them! They’re crazy!”, I mentally translate it to “I want a war, now!”Report

              • Avatar Stillwater in reply to Mike Schilling says:

                And to your point, recall how Colin Powell’s initial comments about 9/11 were received. He suggested that closer relations with countries holding antipathy towards the US were the best way to resolve the underlying cause of terrorism. I think that proposal lasted about 2 days before it was laughed off the stage, setting him up for his final humiliation at the UN.Report

              • Avatar Stillwater in reply to Mike Schilling says:

                At any rate, when I hear “You can’t negotiate with Them! They’re crazy!”, I mentally translate it to “I want a war, now!”

                I don’t hear that. What I hear is the expression of lots of tension – maybe fear – maybe even legitimate fear – that a certain state of affairs is very undesirable. I mean, the way I see it just about any pov entails that a nuclear armed Iraq or NK is a bad outcome. Either not everyone should have nukes or no one should have nukes. I don’t think too many people think a nuclear weapons arsenal in every nation is good for international stability except folks who accept the premise that if one country has them so should everyone else as a necessary form of deterrence. That might be an accurate description of a way to eliminate certain types of international power struggles, but I don’t think too many people think it ought to be the case.Report

            • Avatar Kolohe in reply to Stillwater says:

              “That’s a tough to claim defend I think.”

              I defend it thusly. Though it is fair to consider whether Americans particularly like war more than other people, or merely have had the means and opportunity for war moreso than most other nations over the last 2 centuries.

              “they’d justify those actions in part of perhaps even completely as a defense of individual freedom”

              they would. But half the coalition you identify (the bigger half, by far) was simultaneously fighting tooth and nail to prevent black people from having their own right and proper freedom and liberty. Calling the civil rights effort a commie plot, in fact.

              But really, spend any time in the politics of a home owner’s association, even one where people span the political spectrum, and one will see that people don’t give a flying fig about other people’s freedom and liberty.Report

              • Avatar Stillwater in reply to Kolohe says:

                Though it is fair to consider whether Americans particularly like war more than other people, or merely have had the means and opportunity for war moreso than most other nations over the last 2 centuries.

                America was in a unique position in all of human history. It’s people – our forefathers! – came to an land filled of milk and honey. And gold! A land of promise, where hard work and initiative and bootstraps and rugged individualism and respect for foundational unalienable rights were sufficient for individual material and spiritual success.

                Well, except for the actual history, of course.Report

            • Avatar Kolohe in reply to Stillwater says:

              Anyway, I don’t think Mr. MacLeod and I disagree on the descriptive claim (hence the ‘no shit’), and we don’t even disagree on the normative claim that America is a helluva better than anyone else in the world (or how anyone else in the world would be a the supreme superpower).

              Doesn’t mean we can’t get better or do things differently.Report

              • Avatar CK MacLeod in reply to Kolohe says:

                Not to be disagreeable, but we did seem to disagree on the first point, but maybe we don’t any longer, or maybe we disagreed in some respects and agreed in others, though that might still be the case, and I’m not sure what I wrote that would be taken to equate with the second part. As for the third part: absolutely.Report

    • The post subverts itself. By its own definitions, the intolerable corruption of our “liberties” has already occurred. The very existence of the post, and of so many like it, and of the voluminous if not always very useful discussions they inspire, reveals how limited the damage to those liberties actually is.

      So… because they haven’t gotten around to killing political dissenters on the Internetz, it’s all good?

      Your standards are pretty low, to say the least.Report

      • That this liberal democracy does not kill or imprison political dissenters does in fact establish it as a relatively decent state, though obviously not necessarily a perfect and universally just state.Report

        • Then the post isn’t really self-refuting. I’m still allowed to notice some problems?Report

          • Notice away. I didn’t deny that there are “problems” and that the post reminds us of them, but directing the lament toward pure liberties in the abstract and toward potential dangers far from anyone’s actual predicaments turns whatever real harms into pretexts.

            I’ll give you an example of how the post, when it turns to abstractions, does become incidentally self-refuting and exposes itself as manipulative. It was in observation of this kind of rhetorical ploy that I called it “self-subverting,” which I think allows for some element of its intentionality or of a successful “noticing” or problems remains intact. (An overall rather than incidentally self-refuting post would be a post that fully disappeared itself. I think it’s incidental self-refutations threaten to do that, at least for anyone who isn’t already convinced of the merits of the case.)

            You write:

            What of the liberties you say you enjoy?

            There are no liberties on the battlefield.

            Where is the battlefield?

            The battlefield is everywhere, including the entire world, without any exceptions.

            I think what’s logically faulty there is quite obvious, but interestingly obvious. Much of what we need to know about the nature of the current war and what we suspect about the dysfunctionality of our discourse about it could be developed from that fictional exchange, though that same dysfunctionality will more likely than not overwhelm any such effort.Report

          • 2nd sentence of 2nd para subverted itself, apologies for “submit”-ing too soon – shoulda sed:

            It was in observation of this kind of rhetorical ploy that I called [the post] “self-subverting,” which I think allows for the possibility that elements of its intentionality or of a successful “noticing” of problems remain intact.

            Worth repairing because it’s my way of re-affirming that the author of the post achieves something.Report

  12. Avatar BlaiseP says:

    This entire post has a mean density of begged questions approaching that of Aquinas in Summa Contra Gentiles.

    We are not at war with Al Qaeda. They are not a nation state and therefore no declaration of war has been or could be made. Al Qaeda is not a “way of working”. It is a group of militants guided by the Salafi belief structure and the fataawa of its imams. I am no longer surprised by American ignorance of Al Qaeda: they have put forward their own positions in great detail. But then, underestimating American ignorance — see previous paragraph about begged questions.

    How do we know if someone is a member of Al Qaeda? Gosh. We might as well ask how we know someone is a member of a gang or the perpetrator of any other crime. We work backward from the crime, assembling the evidence, ruling out suspects.

    Our enemies do not need a declaration of war to conduct air piracy and murder. The outrages perpetrated against logic in the conflation of war with crime lead the wilfully ignorant down many strange pathways into the swamp.

    There will be no end to crime. Today it’s Al Qaeda, tomorrow it will be another bunch of murderous assholes wrapping themselves in the mantle of some cause. It might be religious. It might be some flag. It might be allegiance to some cult leader. It might be some collective act of revenge. Sure as the necessity of your next act of defecation, it will be something, on that you can rely.

    The nation state has just about outlived its usefulness and with it, we may all hope for better things, when the madness of patriotism and religions have been discarded along with the Divine Right of Kings. And oh, quit crying about drones. They’re just weapons. No different than those airliners the terrorists flew into those buildings on that bright September morning.

    Though Dei Verbum, the Dogmatic Constitution on Divine Revelation, promulgated by Pope Paul VI says the Christian dispensation is the new and definitive convenant that shall never pass away and we now await no further public revelation before the glorious manifestation of our Lord Jesus Christ — in the real world, every day’s news brings forth just such public revelation. Those incapable of reconciling themselves to that revelation must not complain overmuch, stuck in their flat earth world, perfectly incapable of defining the struggle we face or any suggestions for how we might reconcile ourselves to either God or our Enemies.Report

    • Avatar Stillwater in reply to BlaiseP says:

      BP, I don’t know too many writers who can combine jaw-dropping aesthetics with exceptional content better than you do. Pynchon is the only one who comes to mind.Report

    • Avatar Jaybird in reply to BlaiseP says:

      And oh, quit crying about drones. They’re just weapons. No different than those airliners the terrorists flew into those buildings on that bright September morning.

      Are we different than the terrorists?

      Is the answer “FUCK YOU, I’VE GOT MINE!”?

      Should the answer be something other than that?Report

      • Avatar Stillwater in reply to Jaybird says:

        BP’s point, similar to Burt’s point way up above, is that focusing on drones is a red herring. Drones are tools, just like a manned aircraft. So the drone part of the equation drops out.Report

        • Avatar Will H. in reply to Stillwater says:

          The satellites, the infrared sensors, radios, MRE’s, etc.Report

        • I really hadn’t thought that I was “crying” about drones per se. Rather about the loss of civil liberties, which is worth crying about, even if it is (as one may argue) done under appropriate legal cover.

          Drones are a useful spotlight. They draw attention to the way that this war — yes, it is a war — is quite different from previous wars. The ubiquity of the battlefield, the nebulousness of the enemy, and the sidestepping of civilian legal structures are not in themselves unprecedented. They are however unprecedented in dealing with an enemy that is nothing like a nation-state, and resembles, if we only admit it, something much closer to a criminal gang.

          If those are steps we’re willing to take in pursuit of a criminal gang, then we may as well say goodbye to peacetime. We’re at war for the rest of eternity.Report

          • Avatar Stillwater in reply to Jason Kuznicki says:

            They draw attention to the way that this war — yes, it is a war — is quite different from previous wars.

            How different is it than the Cold War, which ostensibly justified all sorts of activities that had no direct relation to either communism or Russian expansionism? By saying that, I’m not disagreeing with your criticisms of the GWOT, but that it’s functionally equivalent in very many ways to earlier well accepted justifications for the use of targeted state power. I concede that killing US citizens with drones is a new twist.

            They are however unprecedented in dealing with an enemy that is nothing like a nation-state, and resembles, if we only admit it, something much closer to a criminal gang.

            Exactly. That’s why back in the early days of GWOT lots of liberals and others were suggesting that terrorism ought to be treated as a criminal activity. Those arguments obviously weren’t persuasive at the level of policy. As I’ve said in some other comments on this thread, I think there are two aspects to the WOT that need to be carefully distinguished: the justified, legitimate exercise of military power in defense of US interests and the extension of those justifications to otherwise illegitimate actions. You’re focusing on the latter, of course, and I don’t disagree that as an empirical matter the so-called “WOT” is being and will continue to be used (most likely) to justify actions that aren’t otherwise justifiable.Report

            • Avatar Stillwater in reply to Stillwater says:

              Oh, one thing I left out to make the analogy more complete is that quite often US intervention in the War On Communism often targeted individuals who didn’t represent nation-states or anything of the kind. They were, instead, loose collections of people who had a “way of doing things” that the US was fundamentally opposed to.Report

            • Avatar George Turner in reply to Stillwater says:

              But you must admit, killing Che Guevera with gunfire does seem more satisfying than just blowing him up with a drone strike.Report

          • Mr. K @ https://ordinary-times.com/blog/2013/02/a-catechism-of-war/#comment-483337 : I think you need to unite the two halves of your discourse: You recognize that a “transformation of war” (as explored in van Creveld’s book under that very same title) has occurred, but you’re still assessing this transformed and possibly radically transformational concept under pre-transformed and possibly obsolete terms.

            If we are in the era of 4th Generation Warfare, then criticisms that make perfect sense in relation to 3rd and earlier generations of warfare may not now. As I was trying to point out indirectly in the replies I made to your comments above, in War 1.0 – 3.0, a “universal battlefield” would connote a world conflagration, death, horror and destruction everywhere, a global Battle of Kursk, with the approximate “freedoms” of the Concentration Camp for those not directly involved. In War 4.0 “universal battlefield” is a”low level” infection. We PREFER War 4.0 to War 3.0, even if it’s maddening and may in fact contain the seeds of destruction of many other possibly important underpinning presumptions. War 3.0 with modern technologies equals the physical destruction of the bases of human civilization, if not of the biosphere itself. If you want to replace War 4.0 with something less maddening or undermining, you just have to be careful about what you’re asking for. A mass liberal-democratic has excellent reasons to be cautious in this regard. It would rather that thousands of intellectuals call it names, like “sheeple,” rather than get suited up for World War III or be crushed by something even worse.

            When we say that we are in a historical phase, we are not saying that a discrete moment occurred at which point all War went from 3.0 to 4.0, though, as Stillwater implies, the end of WW2 and the era of the American-led post-War settlement marks an obviously key transition point. The “partisan” and “revolutionary” became a key figure, and is in our day now the “terrorist” and the typically 4th Generation responses to the “terrorist” threat, which is, incidentally, an existential threat to liberal democracy, but not necessarily a substantial threat at any given moment or eruption. In the meantime, while we here are focusing on 4.0, there are still plenty of people playing the old versions. It’s just not where the action, or our action, is.Report

            • Avatar George Turner in reply to CK MacLeod says:

              Well, it’s likely that in anything except financial expenditures nothing we’re doing deserves to be called “war” as it was practiced in the 20th century. Parallels to the Cold War might hold, but then long periods where countries spy on, undermine, and sabotage each other was previously called “peace.”

              Smacking down troublemakers, through arrest, clandestine assassinations, or highly limited police or military actions is what many countries would call peacetime normalcy. Russia has been doing it for well over a century (from the Czars onward), as has any country with a significant Kurdish population. The British Empire was conducting such operations for most of its existence all across the world, from Ireland to India to little outposts in the middle of nowhere. Only when they met serious and organized opposition on the battlefield did they consider it war.

              So should we call it War 4.0 or just a “peaceful relationship with complications”? Compared to the 19th and 20th centuries’ conflicts, what’s going on now is more like the constant, worldwide backdrop of low-level civilizational policing that existed in-between and during all the actual wars.Report

              • The justification for referring to a transformation of war rather than a mere reversion to prior concepts would be among other things that those prior “peaceful relationships with complications” existed in relation to forms of warfare that are now held to be impossible at least for great powers or for anyone with an idea about going up against a “superpower.” Van Creveld and others have speculated that 4.0-era conflict may tend to resemble or re-configure pre-Clausewitizian/pre-nation-state or seemingly subsidiary forms of war, but there are numerous complications involved, most obviously in the existence of a somewhat unitary global political-economic system with theoretically vulnerable “chokepoints” and in the technological multiplier effect on display on 9/11 and evoked in our periodic WMD crises. One reason we spend so much money on weapons even amidst “peacetime with complications” is the “existential” demand that we prevent those two problems from coming together, or reduce the potential to the lowest level attainable even while ongoing “advances” re-magnify it.Report

      • Avatar Jaybird in reply to Jaybird says:

        I mean, seriously. The problem with drones isn’t that they’re like nukes, or they’re like biological weapons, or chemical weapons.

        It’s that we’re using them in countries against which we’ve declared no hostilities.

        All that we can point to is the AUMF. And how Bush did it too.

        When we ask “is there a limit to the AUMF?”, it’s pointed out that people want to kill our women and children and Bush did it too. When we ask “will this go on forever?”, it’s pointed out that the US will always have enemies and that Bush did it too. When we ask “well, will we use this on American soil against Americans?”, it’s pointed out that Bush did it too.

        There are a lot of people out there who voted for someone other than Bush these last couple of elections. Some of them might find these explanations to be colder comfort than others.Report

        • Avatar BlaiseP in reply to Jaybird says:

          What a load of filthy rubbish is all this talk of Declared Hostilities. These are crimes, plain and simple. We are entirely within our rights to hunt down such criminals and by any means necessary in places where law enforcement won’t let us in the door. It seems to me these nasty little nation states have proven nothing but an impediment to justice.

          As such, why should anyone respect such nations?Report

          • Avatar Kolohe in reply to BlaiseP says:

            It must be a tough burden to handle The Prize.Report

            • Avatar BlaiseP in reply to Kolohe says:

              Snark, as I have said, is no substitute for sound thinking. The nation state only exists if someone believes in it. In a world where Osama bin Ladin can live at peace within spitting distance of Pakistan’s version of West Point, I don’t think the concept of Pakistan is believable. Its very name is an acronym, an untidy suitcase full of dirty laundry.Report

          • Avatar Michael Drew in reply to BlaiseP says:

            It’s not clear to me that the state of (in) Yemen doesn’t want us on the ground trying to arrest people, while being okay with using missile strikes to do this hunting. Do you know that to be true?Report

            • Avatar BlaiseP in reply to Michael Drew says:

              Yemen is not one “nation” but rather two. Which one are we talking about here?Report

              • Avatar Michael Drew in reply to BlaiseP says:

                I guess the one we send Hellfires into, and if that’s both, then there can be an answer for each. Are there two different states that speak to what’s allowable in each nation? Or, I suppose, if there’s one state and two nations, are there formally different rules that the state applies for each nation? Otherwise, I’m not sure it matters that there are two nations.Report

              • Avatar BlaiseP in reply to Michael Drew says:

                Here’s a chart of strikes by province. And here’s a chart of Yemen’s provinces.

                Backgrounder on Yemen Civil War which does a pretty good job of laying out the players.

                There are also two wars going on: one is a crackdown on Al Qaeda in the Arabian Peninsula. The other is a Shi’a insurgency.

                FWIW, Anwar al Awlaki was killed in al Jawf.Report

              • Avatar Michael Drew in reply to BlaiseP says:

                So statehood is itself contested. That seems like a relevant fact, and one that I should have known. Thanks.Report

              • Avatar BlaiseP in reply to Michael Drew says:

                You’re welcome. The more I dig into the theology of war, the more convinced I become of the malignant irrelevance of the nation state.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                I agree it’s increasingly practically irrelevant and eclipsed, but it remains legally relevant — the combination of those two things being a situation not all that that uncommon in the course of the normal unfolding of the law and legal governmental practice.Report

              • Avatar BlaiseP in reply to Michael Drew says:

                Are these failed nation states still legally relevant when they can’t enforce their own writ, when they aren’t representative governments deriving their mandate from the consent of the people?Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Relevant, I think, yes, but they may have forfeited certain of the rights and protections given to entities with nation-state status under the law of nations, UN Charter, other treaties, etc. I don’t know the specifics, but in any case they’d be highly highly situation-dependent, not, probably, determined by the applicability or lack thereof of the simple description you stated.Report

              • Avatar BlaiseP in reply to Michael Drew says:

                Well sure, Michael. That’s why I’ve phrased it as a question. In the absence of the rule of law, a situation largely created by the failure of the nation state, a self-perpetuating vacuum created by jihaadism and into which more jihaadism flows, there comes a point where a state loses its mandate and all those highly situation-dependent variables come into play.

                Yemen is a botch. Mali is a botch. North Korea is a botch. Pakistan is a botch. The list goes on and on. Times without number, I’ve complained about the procrustean borders created by the colonial regimes, borders which bedevil all these troubled nations. Governments arising from the barracks and not the ballot box, endemic corruption, the abdication of responsibility and the descent into madness.

                The world can’t put up with this shit any more. It’s not good for us as a species. Worst of all, all these little independence movements such as the Tuareg in Azawad are co-opted by jihaadism. Tuareg leaders were rudely pushed aside and the jihaadists grabbed the steering wheel of that revolt. On the flip side, the USA was training the Malian military, no different — shit, how many times do I have to say this stuff? Government of the people, by the people, for the people — when did we lose sight of what democracy means in all this?Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Oh, I think they’re certainly in play. There are just a lot of them, that’s all.Report

              • Avatar BlaiseP in reply to Michael Drew says:

                We’ve got a scorecard for sorting all this out. It’s never been enforced because the United Nations is a contradiction in terms. High time we enforced some membership standards. Nations with failing grades ought to be expelled from that august body.

                I don’t propose putting the UN in charge of anything. But working democracies somehow manage to get along, sort things out. Look at the partition of Czechoslovakia in the Velvet Revolution. The Slovaks got their own state, turned around to the Czech Republic and said “hey, this complete independence thing is great, let’s be partners” Now both countries are doing well enough, not without a few problems, but here’s an instance where borders were successfully redrawn. Through the good offices of the UN, more borders ought to be redrawn, leading to a more peaceful world.Report

          • Avatar Shazbot5 in reply to BlaiseP says:

            “These are crimes, plain and simple. We are entirely within our rights to hunt down such criminals and by any means necessary in places where law enforcement won’t let us in the door.”

            Um, no.

            There are some limits. Criminals get trials. Sovereign countries don’t have their citicizens attacked -some criminals, some innocent bystanders- without declaring war.

            The OP is complaining about the absence of trials, respect for sovereignty, and a general disregard for the rule of law.

            But if you’re against the rule of law, well we’re at an impasse.Report

            • Avatar BlaiseP in reply to Shazbot5 says:

              Sovereign countries which protect criminals from justice forfeit their right to sovereignty. I have already made my point elsewhere: the nation state has lost relevance because it will not enforce its own writ within its borders.

              I am all about the rule of law. I should like to mention Ronald Dworkin, a very wise man, in this context.

              We live in and by the law. It makes us what we are: citizens and employees and doctors and spouses and people who own things. It is sword, shield, and menace: we insist on our wage, or refuse to pay our rent, or are forced to forfeit penalties, or are closed up in jail, all in the name of what our abstract and ethereal sovereign, the law, has decreed. And we argue about what it has decreed, even when the books that are supposed to record its commands and directions are silent; we act then as if law had muttered its doom, too low to be heard distinctly. We are subjects of law’s empire, liegemen to its methods and ideals, bound in spirit while we debate what we must therefore do.

              and a bit of Auden:

              Yet law-abiding scholars write:
              Law is neither wrong nor right,
              Law is only crimes
              Punished by places and by times,
              Law is the clothes men wear
              Anytime, anywhere,
              Law is Good morning and Good night.

              Others say, Law is our Fate;
              Others say, Law is our State;
              Others say, others say
              Law is no more,
              Law has gone away.

              And always the loud angry crowd,
              Very angry and very loud,
              Law is We,
              And always the soft idiot softly Me.

              Some of those idiots are not soft. Some are very hard, intent upon enforcing their own law, taking upon themselves the prerogative of acting as judges and executioners and their voir dire process for jury selection is somewhat suspect. Osama bin Laden talked about a Near Enemy and a Far Enemy: the near enemy was the resident nation state and the far enemy was the United States. We have, over time, backed unjust regimes, the Near States. Much of Osama bin Laden’s complaint was just. His solutions were unjust. Report

              • Avatar LWA in reply to BlaiseP says:

                So the first question somebody is going to ask, is has the USA ever done that?Report

              • Avatar BlaiseP in reply to LWA says:

                The USA has consistently acted against its own best interests and the rule of law. These actions are a sort of treachery. I repeat myself in saying OBL’s complaints were based on solid historical facts.

                Langston Hughes:

                What happens to a dream deferred?

                Does it dry up
                like a raisin in the sun?
                Or fester like a sore–
                And then run?
                Does it stink like rotten meat?
                Or crust and sugar over–
                like a syrupy sweet?

                Maybe it just sags
                like a heavy load.

                Or does it explode?

                If the USA were honest, if there was an introspective bone in our bodies, we’d own up to the validity of OBL’s complaints. We don’t have to tolerate anything he’s done to admit as much. So why do we go on propping up these monstrous regimes?

                Obama’s first foreign trip was to Mubarak’s Egypt. Hillary Clinton said some very nice things about that disgusting old pharaoh in her turn. We are not loved in Egypt. Every time some constituency arises to complain about injustice, the ambassador from Disgusto-stan has a few quiet words with the US military attaché and here come the SF trainers to empower Disgusto-stan’s cannibal military. And suitcases full of money.

                Of course the USA has Done That. And goes on doing it. And it has to stop.Report

              • Avatar Shazbot5 in reply to BlaiseP says:

                “Sovereign countries which protect criminals from justice forfeit their right to sovereignty.”

                If we protect a Chinese or Cuban political dissident, a criminal, are we no longer sovereign?

                There are some problems with your claims.

                For one thing, many of the people we are bombing and killing haven’t been tried or convicted. So Pakistan isn’t hiding criminals from us actively; they’re not helping us find people we suspect (strongly or not) of committing crimes who we haven’t asked the Pakistanis to help us find.

                Moreover, you seem to be guilty of some kind of tu quoque: AQ committed a crime against us, killing innocent people, so we can commit crimes against innocent Pakistani’s. (Or perhaps you think the drone attacks are keeping us safer, which is a different kettle of fish.)

                However, I suspect we’d agree that Pakistan’s government is part of the problem here. They don’t want to officially help us kill terrorists in their own country, (as that will cost them some domestic support) but they could complain loudly enough to stop us if they wanted, but they don’t, because they want us to do the bombings while also using the bombs to blame us and rile up anti-american poltiical support. So the idea that we’re truly violating Pakistan’s sovereignty is only partially true. They are allowing us to do the drone strikes as long as we don’t do it legally. Yuck.

                If Pakistan said no more illegal bombs and drone strikes, officially, then we’d have to either:

                a.) Work with their law enforcement to catch terrorists by showing them who we have convicted (thereby stopping the killing of people without some sort of trial and the rule of law) and who needs to be apprehended or killed.

                b.) If Pakistan refused to cooperate or we could prove they weren’t cooperating, with our lawful efforts we could declare war (or more likely sanctions or limited strikes, given their nukes) as they would then be a sponsor of terrorism.

                I doubt b. would happen, even sanctions.

                I think Obama has calculated that a rule of law following “law enforcement” path to catching and killing terrorists in Pakistan won’t work well enough and we can’t do b., so he has decided to violate law and morality to try to make America safer, assasinating suspected terrorists and killing hundreds of innocent people, but it is likely making America unsafer by creating more anti-American sentiment.

                I have been tolerant of Obama so far on this issue, but he is acting immorally and illegally just to make terrorist catching and killing programs more succesful. There comes a time when great leaders of great countries put the law and morality above always maximizing safety and well-being of their citizens. Obama must do the right thing by restroing the rule of law and respect for sovereignty even if it makes America slightly less safe (which I doubt: it will make us more safe, IMO, but that is a different debate).Report

              • Avatar BlaiseP in reply to Shazbot5 says:

                You have painted yourself into a corner here. We have no extradition treaty with either China or Cuba, though China has been wringing its hands and asking for just such treaties. China has laws forbidding the extradition of its own citizens. Cuba dumped the Marielito criminals and mentally ill on our doorstep.

                Pakistan’s ISI has been listed as a terrorist organisation. We have an ISI agent in Gitmo this minute, Mohammed Anwar. So let’s not have any of this silliness about how they’re not helping us find people we suspect (strongly or not) of committing crimes who we haven’t asked the Pakistanis to help us find. They are committing crimes. Actively. We had to work around them to deal with Osama bin Laden.

                Tu quoque? Me? Al Qaeda is a brand name. Specific people committed crimes, they are being sheltered in failed states, they can’t be extradited — and you want some Inspector Clouseau to walk up to the garden gate and ask oh-so-politely for the man of the house to come down to the police station to answer a few questions — when there isn’t any police station? We’d very much like for the law enforcement agencies of those countries to respond to Interpol Red Notices. Even Russia responds to Interpol Red Notices and we’re hardly on good terms with them these days.

                On my last post, I said drones are not the answer: they create about as many problems as they solve. Technology develops in this wise: first a toy, then a tool, then a weapon. We are not going to blast our way to victory over jihaadism, plinking fifty dollar terrorists with 68,000 USD Hellfire missiles (that’s what each one costs). We would rather defer to the rule of law and we have, where we can.

                But beyond the rule of law, who says the USA shouldn’t do anything about jihaadism? Who says all those people are innocent? Local law enforcement? Intrepid reporters? Answer: none of the above in Pakistan. We have at least one ISI agent in our custody and have declared it to be a terrorist agency.

                Out beyond the rule of law, the drone and its operator and his commanders are not bound by your well-intentioned (if horribly naive) concepts of justice. That’s why the jihaadis are out there in the first place. You really don’t get this — let me push this point in hard: Pakistan is a failed state. We have no reason to trust anything they say and every reason to knock down their jihaadi proxies. War with Pakistan is not merely coming. It has already arrived. This is how we wage war these days. Get used to it. The jihaadis do not have an exclusive patent on terrorism. Report

              • Avatar George Turner in reply to BlaiseP says:

                I don’t think we should have extradition treaties with most of these cess pits. How would you like to get a knock on the door to find there’s a warrant for your arrest in Pakistan for posting a Muslim joke on the Internet and insulting the Prophet, for which you face the death penalty, and that your oh-so brilliant government was going to go ahead and ship you over there to face the music?Report

              • Avatar James Hanley in reply to George Turner says:

                Extradition treaties aren’t absolute. In the U.S., the basic principle of due process means you can challenge your extradition, and believe me, if a country wants to extradite you for doing something in the U.S. that’s legal in the U.S, they’re not going to deport you. And other countries have refused to honor their extradition treaties with the U.S. in cases where capital punishment was on the table.

                So let’s not get our undies bunched up over non-concerns.Report

              • Avatar BlaiseP in reply to George Turner says:

                Heh. A member of Pakistan’s government, Railways Minister Ghulam Ahmed Bilour, put out a 100,000 USD bounty for the murder of Mark Basseley Youssef, the maker of the now-infamous anti-Islam film.

                Well, Mr. Mark Basseley Youssef was convicted of bank fraud in the USA and was sent to prison for a year. I conclude Mr. Youssef is safer in federal prison, where he belongs, than out in the open.Report

              • Avatar George Turner in reply to George Turner says:

                Well, regarding extradition treaties, if we won’t extradict someone for insulting the Prophet, one of the highest crimes possible in Muslim countries, why would they extradict someone to the US who’s not an American and has never set foot in America (implying that their country of residence is actually under US jurisdiction – along with the entire world), and are wanted for actions that may not have taken place (merely planning or agitating), and even had any attacks taken place, might’ve occured totally outside US jurisdiction?

                Wouldn’t it be like the US extradicting fifth-generation Boston Irish back to Britain for being IRA supporters? You could probably extend the parallel to our perceptions if the English resorted to detonating package bombs in Boston pubs, but then if the Irish were also agitating to overthrow the US government (as Al Qaeda does in almost every country they go to), then might we treat such actions with a wink and a nod?Report

              • Avatar BlaiseP in reply to George Turner says:

                In some cases, George that’s exactly what happens. Peruse the rest of that page. You’ll find we have a tool far more suited to dealing with terrorism than mere demands for extradition, we have the Interpol Red Notice.

                Once a Red Notice has been issued, as is the case for Julian Assange, they’re trapped in that country or in its embassy. Interpol really works. It might surprise you how effective Interpol has become over time.

                In 2002, when Saddam Hussein knew the jig was almost up for him, he had a particularly awful terrorist he’d been sheltering, name of Abu Nidal murdered. If the USA ever had a casus belli for saying Saddam Hussein was a state sponsor of terror, it was Abu Nidal, he of the Achille Lauro terrorist incident.

                When a nation state harbours known terrorists in defiance of a Red Notice, it becomes a legitimate target for other nation states. Saddam knew this. So did Gaddafi in Libya. Rather than play little games with these swine, allowing ourselves to be painted as the Bad Guys in all this, allowing these failed states to use our own arguments about sovereignty against us, we should be using the entirely justifiable arguments of bringing criminals to justice.Report

              • Avatar Shazbot5 in reply to BlaiseP says:

                1. We are not at war with Pakistan. We are actually funding their military. You could say we are at war with groups in Pakistan, while the apakistani government sort of lets us, but it is unclear if this war is legal at all by our own and by international standards.

                2. You are now just throwing out a bunch of red herrings about details having to do with the countries that I chose in my example. I chose Cuba as an example. I could have chosen East Asia or Mordor to make the same points. If country X fires a missile at us and kills our innocent citizens to kill a person it deems to be a criminal (untried and not proven guilty of any crimes by international courts or even crimes in itsown country), and X says that we didn’t or wouldn’t have help them catch the criminal, X would have committed a monstrous moral crime against us and the international community.

                We are country X in the scenario above, ergo we are commiting immoral, criminal acts.Report

              • Avatar BlaiseP in reply to Shazbot5 says:

                Of course we’re at war with Pakistan. If we happen to be funding their military, that’s about par for the course with the US of A: we’re schizophrenic. We build with one hand and destroy with the other. We fund Pakistan’s military because we’re also the world’s largest arms dealer and they buy our wares with the money we give them. They buy shit from our arms dealers and it employs Americans in the “Defense” Industry and those dealers have big constituencies. We do the same with Egypt’s military. And Israel. And dozens of other disgusting countries, none of whom do a thing we ask, though every so often we find ourselves on the same side of a fight.

                Taliban is a plural noun and factions of them are fighting Pakistan too, so Pakistan does cooperate with us in some respects and we drop bombs from our drones — and they get to blame us for it. It’s all terribly convenient. Nonetheless, we are at war with Pakistan when we drop bombs on wicked old tewwowists who happen to be fighting for Pakistan.Report

              • Avatar Shazbot5 in reply to Shazbot5 says:

                What criteria do you use to determine when we are at war with country X?

                Certainly, our government hasn’t said that we are at war with Pakistan. So we need some other criteria than “We are at war with X, when our government declares X”

                We are attacking Pakistani citizens and foreign nationals in Pakistan? Is that sufficient to conclude that we are at war with Pakistan? No. We have killed citizens in Bahrain, for example, which is clearly not a country we are at war with. As a hypothetical, of we launched an assassination in Canada without letting Canadian authorities know ahead of time, we wouldn’t say that alone made it true that “We are at war with Canada.” (Though Canada would be within their rights to threaten war in that scenario, though they wouldn’t)

                So the mere existence of attacks against Pakistani’s or any country X doesn’t imply that we are at war with Pakistan or with any country X.

                So what criteria are you using to determine when we are at war with a country?

                And if we’re at war with Pakistan, aren’t we attacking the Pakistani government at some point or act in some way or attempting to destroy the Pakistani military, or attempting to destroy their infrastructure, or attempting to frighten and intimidate their citizens into surrender? But we aren’t attacking their government, military, imfrastructure, or population en masse, so we aren’t engaged in a war against Pakistan.

                We are engaged in a war, synechodically construed, against a wide variety of Islamist terrorist groups around the world, some of them in Pakistan, and some of our actions in that war are deeply immoral and illegal and we can do better.Report

              • Avatar BlaiseP in reply to Shazbot5 says:

                Criteria: Sovereign countries don’t have their citicizens attacked -some criminals, some innocent bystanders- without declaring war.

                That’s exactly what we’re doing. We just haven’t declared war. In the case of Pakistan, some of those Criminals and Innocent Bystanders we kill with the connivance and permission of the the Pakistani government, because that sector of those criminals is murdering Pakistanis, especially the Pakistani Army.

                But some we kill because they murder Americans and Afghans. This portion of the Criminals and Innocent Bystanders connive with the Pakistani government.

                But it’s all good, you see. The USA is blamed for all those deaths. It’s the best of both worlds. But it’s war in everything but name.Report

      • Avatar BlaiseP in reply to Jaybird says:

        Feel free to answer that question for yourself. I find myself answering all manner of rhetorical questions today from people ill-equipped with any answers of their own. You seem to be no exception.Report

        • Avatar Jaybird in reply to BlaiseP says:

          I have answers of my own.

          We killed the motherfuckers who did this damage to us, those left alive afterwards, anyway. We write on a card “don’t make us come back” and leave this card in Kabul, Baghdad, and mail one to Tehran.

          Then we go home and declare the emergency over until we have reason to declare a new emergency. We declare “Mission Accomplished.”

          Just like Bush did.Report

          • Avatar BlaiseP in reply to Jaybird says:

            We write it on a card. A Hallmark card? Where in the stacks do we find an appropriate category for the bastards who shot a hole in Malala Yusufzai’s skull? Whose entire modus operandi is to bomb girls’ schools and who just yesterday blew up a Shiite market in Pakistan? Mission accomplished, eh?

            Perhaps a religious holiday card. One of those generic Martyr’s Day cards. With a fucking dead Easter Bunny on it.Report

            • Avatar Jaybird in reply to BlaiseP says:

              Where in the stacks do we find an appropriate category for the bastards who shot a hole in Malala Yusufzai’s skull? Whose entire modus operandi is to bomb girls’ schools and who just yesterday blew up a Shiite market in Pakistan?

              Why is either of these things “bad”?

              I mean “bad” to the point where, if we did either of them, you wouldn’t explain to me (as you’d explain to a slow child) that there are people out there who want to kill us and sometimes people die in war and sometimes structures, even happy nice structures, get blowd up?Report

          • Avatar Stillwater in reply to Jaybird says:

            We declare “Mission Accomplished.”

            Just like Bush did.

            Hah. That’s clever.

            But we all knew that the mission wasn’t accomplished. The mission was never merely to overthrow Sa-damn, it was … well a coupla things. One was to root out the terrorist cells that actually did (all factual evidence in the affirmative) inflict, and intended to continue to inflict, harm on Americans and American interests. The other was to create a vague enough threat that the security apparatus would have a veneer of legitimacy sufficient to keep the MIC running smoothly. Those two things need to be distinguished, it seems to me.Report

            • Avatar BlaiseP in reply to Stillwater says:

              We may always rely upon the Libertarians for Snappy Answers to Stupid Questions, questions generally asked by themselves.

              Let’s face facts. This was never a War on Terror. It was Dick Cheney breaking out in a rash of assholes and using the crimes of 9/11 to push Saddam Hussein out of power, as he had been planning to do since February of 2001. George Bush43 was just along for the ride. That poor man didn’t know whether to shit or go blind. Now he paints pictures of his feet in the bathtub. A shallower, stupider man never lived.

              But he did tell the world, rather plainly at the time, that he would run down these terrorists wherever they were. By attempting to turn this into a WAAAAAR, all he did was attempt to turn our military into a bunch of Inspector Clouseaus, a role for which they were supremely ill-trained, running around in the weeds, not speaking the language, annoying the locals and generally stirring up even more of same. This is the idiocy of conflating war with crime.

              We could have gone after the terrorists, as we would any gang of criminals evading justice. We could have made this into a law enforcement operation, insofar as we had the cooperation of the host nations for these terrorists. We didn’t, surprise surprise: the terrorists were holed up in nations which didn’t cooperate with law enforcement operations, nations which used jihaadis as deniable proxies to their own ends.

              It’s not as if we hadn’t said what we were going to do. It’s not as if jihaadism respects national boundaries or courts or the rule of law. They intend to provide their own.Report

    • Avatar Kolohe in reply to BlaiseP says:

      “How do we know if someone is a member of Al Qaeda? Gosh. We might as well ask how we know someone is a member of a gang or the perpetrator of any other crime. We work backward from the crime, assembling the evidence, ruling out suspects.”

      AND YET WE DONT DRONE THOSE SONS OF BITCHES!!!Report

      • Avatar Jaybird in reply to Kolohe says:

        “Sir, we’ve got Libertarians complaining that we’re not droning gang members.”

        “Sounds like we’ve got coverage to drone them from everybody, then.”Report

        • Avatar Stillwater in reply to Jaybird says:

          How many self-identified libertarians are opposed targeting known AQ members? Or is that where “Libertarian leaning” come into play?

          Very few intelligent people take a principled line on anything independent of the facts and circumstances. And for very good reason. I’m surprised that you’re defining libertarians as the one group which actually does. It’s almost like you’re suggesting Libertarians aren’t human, like the rest of us.Report

          • Avatar BlaiseP in reply to Stillwater says:

            No two Libertarians will ever make a common stand on any position.Report

          • Avatar Jaybird in reply to Stillwater says:

            Which do you find more troublesome:

            The Government killing American Citizens on foreign soil without a trial or even oversight, really.

            Libertarians screaming about it.

            Choose one.Report

            • Avatar Stillwater in reply to Jaybird says:

              Neither actually. I think the issue is nuanced. I tend to view the screaming as equivalent to infantile dissatisfaction that a complicated world is what it is and not another thing.Report

            • Avatar BlaiseP in reply to Jaybird says:

              That makes no sense. Both are begged questions. We’ve killed American citizens serving our enemies.

              Peter Delaney (aka Pierre de la Ney du Vair), a Louisiana born SS-Haupsturmführer in SS-Standarte Kurt Eggers who is believed to have served in Légion des Volontaires Français (LVF) … Delaney was killed in 1945.

              At least eight American volunteers are known to have been killed during their service for the Reich.

              There is no doubt Anwar al-Awlaki was a conspirator, advocate and spiritual advisor to the 9/11 hijackers and the Fort Hood shooter, Nidal Hassan. I should also like to point out Anwar al-Awlaki was afforded his First Amendment rights and was not arrested while within the borders of the USA. He was even allowed to leave. But once al-Awlaki went to Yemen and became involved in jihaadism, a death sentence was handed out by the Yemeni government.

              All these legal niceties are fig leaves. We have killed Americans in the service of our enemies before. Anwar al-Awlaki is the very worst example possible. Those who wish to beat American warmaking policy about the ears with this dead trout are either ignorant or idiots, or both.Report

      • Avatar BlaiseP in reply to Kolohe says:

        That’s so true. We arrest such persons and put them on trial. That’s because we have working law enforcement and a justice system.Report

    • Avatar Kolohe in reply to BlaiseP says:

      “The nation state has just about outlived its usefulness and with it, we may all hope for better things, when the madness of patriotism and religions have been discarded along with the Divine Right of Kings. And oh, quit crying about drones. ”

      It’s staggering that you don’t see the contradiction between those two sentences.Report

      • Avatar Stillwater in reply to Kolohe says:

        K, I think you’re taking an overly (and unwarrantedly) narrow view of the second sentence, fwiw.Report

      • Avatar BlaiseP in reply to Kolohe says:

        Staggered, eh? The difference between you and me is pretty obvious. For me, a drone is a perfectly appropriate weapon to strike an enemy which strikes us with airliners.Report

        • Avatar Kolohe in reply to BlaiseP says:

          and flabbergasted at someone who’s been on the inside has so much implicit faith in The System, almost to the point in a belief of infallibility.Report

          • Avatar BlaiseP in reply to Kolohe says:

            I have no faith in The System. I do not believe The System works. I see the nations of the world, strutting and fretting their hour upon the stage, waving their stupid little flags, preaching to lots of stupid little people, some of whom believe those stupid little sermons about National Greatness and other such lunacy.

            I do hope you’re not one of those stupid people. Oh, that’s right, you have a flag sewn on your uniform. Thank God I’ll never wear one of those again.

            No, Kolohe, I do not believe in The System. I believe in justice and the rule of law, in liberty and the rights of man. And where there is none of those, where murderers run free like so many jackrabbits in the back forty, I am surprised at you, the Libertarian, telling me I can’t exact my own form of justice, simple retribution.Report

            • Avatar Jaybird in reply to BlaiseP says:

              I am surprised at you, the Libertarian, telling me I can’t exact my own form of justice, simple retribution.

              If that’s what you wanted to do, I’m sure that you’d be able to find some Libertarians arguing over whether we should oppose such actions.

              It’s when you outsource the government to do such things on your behalf and in such a way that your bloodthirst will never, ever be sated that those self-same libertarians start bitching about drone strikes in countries against which we disagree the AUMF ought to be seen to cover.Report

              • Avatar Michael Drew in reply to Jaybird says:

                I’m trying to understand your reading of the AUMF. Are there countries where the AUMF does not applies to certain individuals or organizations to which it would apply if they were in other countries? I don’t see any such language to that effect in it. Now, this doesn’t mean the AUMF makes force in any given country against any particular individual in any given circumstance internationally legal – AUMF could apply in an instance but simply not have the power to make a use of force pursuant to it legal from the perspective of all observers (i.e. the international community). But that doesn’t mean the AUMF doesn’t apply there (or “cover” those countries). It just may not have force to make a particular action there legal.

                So how do you determine what the countries are where you don’t (or do) agree that the AUMF applies to (“covers”) individuals to whom it would apply were they in… other countries? Does the AUMF apply to any individuals in any countries? If those individuals went to the countries where you think it may not apply to certain other individuals, would it then not apply to them either?

                How does this thing work?Report

              • Avatar Jaybird in reply to Michael Drew says:

                I don’t know how the AUMF works.

                I mean, if I told you in 2002 that the AUMF would allow the US military to attack people in Libya in 2013, what would your response to that have been?

                Mine would have been to ask “is there anything, anything at all that the AUMF would prevent?” If the answer to that question was “no”, then I could easily see myself saying “maybe we should pass something that would sunset, then. Perhaps someday we’ll have a congress that won’t automatically re-pass it.”Report

              • Avatar Michael Drew in reply to Jaybird says:

                I would have said that if there were people in Libya 2013 who fit the description it gave for people it authorized the use of military force against, I probably would have said that, on its terms, it authorized the use of force against them (though, again, that wouldn’t have necessarily made that use of force legal). If not, not.

                I’m not aware that it is allowing or being asserted to allow the military to do that this year, though. Do you have a citation for this? (The original Libya campaign certainly wasn’t authorized by AUMF, and quite arguably was not authorized by U.S. law; I’d have to see the argumentation to know what authorization is claimed to support whatever engagement we continue to have there to counter “militancy” etc. that has resulted in the invasion, our efforts to bring the attackers who killed the Ambassador et al to justice, etc. I really don’t know what part AUMF plays in whatever arguments are made for the domestic authority the administration claims to support those operations.)Report

              • Avatar Jaybird in reply to Michael Drew says:

                The original Libya campaign certainly wasn’t authorized by AUMF, and quite arguably was not authorized by U.S. law

                For what it’s worth, when I say this sort of thing, other folks point out that the AUMF does authorize it.

                Hell, it apparently authorized every damn thing.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                The 2011 NATO bombing campaign in Libya? Who’s said that? Link?

                It has been claimed to authorize a lot of uses of force, I don’t deny that. And the arguments that a number of the targets of military force (the people and the organizations) that have come under attack do in fact fit the description given in the law have grown increasingly strained, without doubt.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                …For example, I don’t know how it is the president believes he can determine that the people targeted in “Signature Strikes” “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,” when he doesn’t even know specifically who they are, and therefore what they may have done to do those things.Report

              • Avatar Stillwater in reply to Michael Drew says:

                The 2011 NATO bombing campaign in Libya? Who’s said that?

                That was my question as well, Michael. I don’t recall anyone invoking the AUMF as a justification for the initial action. I do recall hearing some grumblings that the AUMF would permit the US to engage in activities to root out AQ elements that are loosely linked to the Benghazi attack.Report

              • Gentleman Michael Drew @ https://ordinary-times.com/blog/2013/02/a-catechism-of-war/#comment-483562:

                You left out the relevant portions of the AUMF:

                “those nations, organizations, or persons he determines”

                If the Prez determines that the target belongs to anyone falling under that heading – most obviously anyone id’d as AQ – then the intent is clearly served, as reinforced by “in order to prevent any future acts of international terrorism” against the U.S. by same.

                And the entire AUMF merely reinforces already existing Article 2 powers, making longer-term and longer-duration, pro-active operations more practicable, more difficult to check legally and politically.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                CK-

                Again, I say the application must be strained in a situation where he doesn’t know exactly who the individuals. It’s not impossible that it’s a defensible determination (‘the behavior pattern indicates they’re part of an organization that planned, harbored…’ blah, blah, etc…); I just say that it’s necessarily strained in that circumstance.

                On your latter point, I want to disagree. That’s a possible interpretation – that the AUMF is just Congress affirming the president’s Article II powers. But the AUMF could also be seen as a functional grant of Artice I legislative war powers to the president to respond to an armed attack with force as prescribed in the Act. The latter means the specific authorities in AUMF can be brought to an end, and Article II powers can be defined in some more restrictive way than the AUMF describes. If your aims in interpretation don’t concur with those (which are mine), well, then we just have opposing positions on what the AUMF in fact is – in spirit as well as in detail.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                …Tho this part of the justificatory language for the authorization does lend some support to your position:

                “….Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
                Resolved by the Senate and House of Representatives of the United States of America in Congress assembled…”

                It’s a legitimate argument to have.Report

              • Avatar George Turner in reply to Michael Drew says:

                I don’t know how it is the president believes he can determine that the people targeted in “Signature Strikes” “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

                That’s just poor wording on the part of Congress. The missing clause to that is ” or probably would have, had they been of legal age when the attacks occurred.”

                Under the long-standing international legal doctrine of “you started it” we can keep the conflict going forever, as long as there’s a linked chain between the original attackers and their replacements as members of their ranks die, retire, have children, etc. The people fighting at the end of the Hundred Years War were not the same people that started it unless you pull out a math book and cite set theory. Congress should’ve had their legislative aids dig into such doctrines and insert legalistic words like “in perpetuity” but most of them expected a fairly short war, at least by generational standards.Report

              • Avatar James Hanley in reply to Michael Drew says:

                I don’t know how it is the president believes he can determine that the people targeted in “Signature Strikes” “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

                “such organizations” provides the key. Any organization either labeling itself as an al Qaeda becomes “such organizations,” and anyone who has ever helped, in any way, someone who belongs to, or subsequently joins, “such organizations” has aided them. The wording is flexible in the extreme, giving a superficial impression of being a limiting definition while in fact being stretchable to cover almost anyone suspected of any faint connection to terrorism.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                James,

                Yeah, that part I get, as I indicated in the parenthesis at 5:30. I’ve always thought it was pretty clear how the linking clauses in AUMF work to expand coverage to large classes of people associated with groups associated with the attacks in the ways listed. It’s not how belonging, or being determined to belong, to such an organization brings a person under the Authorization that I’m saying is strained. It’s the determination itself in the case of a “signature strike,” where information about the targets is so unspecific to their particular activities, group memberships, affiliations, etc. that in my view is likely strained (if indeed such strikes are meant to be authorized by AUMF at all…), depending on just what factors go into determining targeting under that practice.

                At some theoretical point, unless we’re saying AUMF actually authorizes a delusional president to kill anyone with no connection to any of these things simply because his hallucinatory mind has “determined” some individual fits that description, there’s going to be some kind of test for whether these presidential “determinations” are legitimate under that law. If authority for “signature strikes” is claimed under AUMF (which I’m not at all sure is the case), I think that begins to raise those questions, although by no means do I think they clearly cross some bright prohibitive line about what people and groups the law was meant to cover.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                …or, rather, I should say about what kinds of considerations, evidence, and processes it was envisioned would go into legitimate presidential determinations to that effect under the law.Report

              • Avatar James Hanley in reply to Michael Drew says:

                Michael,

                Well, in the absence of any specification of methods by Congress, the process is wholly within executive discretion, right? And the executive can claim executive privilege and state security as reasons not to reveal those standards. So in a nutshell, the answer is that the president can do it however the hell he wants to, with or without anything resembling substantial evidence.

                The only practical test for whether these presidential decisions are legally legitimate is if they become so egregiously and obviously dubious that the federal courts finally become willing to entertain a challenge to them. There’s no pre-set standard that can be referenced to determine that, but we know that the courts will be reluctant to intervene in questions relevant to a state of war and we know that presidents will attempt to use the state secrets privilege to deter the courts from hearing them. That’s as close as we come to any sort of legal standard that determines whether the president’s decisions are legitimate.

                In other words, the rule of law has become an irrelevant consideration, an archaic nicety. Presidents make allusions to it, using it as a fig leaf to cover their, uh, actions. And we get people even here at the League buying into the scam, arguing that the drone strikes, if unpleasant, are legitimate, because the president followed a process that superficially appears to have the niceties of law, forgetting that the word preceding “process” in the Constitution is “due.”Report

              • Avatar BlaiseP in reply to Michael Drew says:

                James has hit the nail about as directly as possible. AUMF is a dog’s dinner of bad legislation, as Michael points out and James reinforces the point particularly well, saying

                There’s no pre-set standard that can be referenced to determine that, but we know that the courts will be reluctant to intervene in questions relevant to a state of war and we know that presidents will attempt to use the state secrets privilege to deter the courts from hearing them.

                The Executive always wants it both ways: when it suits its purposes, this is law enforcement. But when anyone attempts to intervene, it’s war. I contend AUMF should be limited to actions against nation states only. Everything else should go through the courts as a matter of law enforcement. Perversely, treating terrorism as a criminal matter would widen our options and get our military out of that mess. Look at the Gitmo trials: the military is stoutly refusing to put these terrorists through its own justice system. The military tribunals would rather let them go. And they have, too. The military knows where this sort of thing leads: they went through standard military indoctrination. Military courts are for trying military personnel according to UCMJ, not the Constitution.

                Do we have so little faith in our own justice system? Didn’t WTC 1 and OK City show we have the ability to handle these matters without involving the military?Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Sigh.

                I wasn’t speaking to enforcement. I said that at some theoretical level, there’s an implied test here as to whether a determination that the president makes about the targets of this force are within the degree of discretion Congress wnated to give to him by passing the law. There is, after all, some person somewhere we could point to where most everyone in Congress as well as the president and his lawyers would say, “No, even if the president ‘determined’ this person was covered, in fact the law was not meant to authorize force against her.” In terms of the meaning of the law, there’s going to be agreement that there are some determinations that the president could make that would be seen as wrong pursuant to the law. the law might not be written well enough to indicate those, but if those kinds of determinations began to be made, we’d find out quickly what those limitations were.

                How? By seeing the Congress react. Initially, they couldn’t impeach. (I know you believe they never would anyway.) That’s because, formally speaking, the law would indeed cover any person (organization, etc.) who the president determined planned (etc., etc.,) including ones for whom there is absolutely no way to even argue that the description applies that an insane president may so identify. So what would they do instead? Well, first, they could amend the law so as to include some standards for establishing the connection that the president would have to satisfy. Thereafter, if these kinds of unfounded determinations continued, Congress could then impeach him or take other actions to reflect the fact that they believed he was not conforming to the intended meaning of the law (either the original one or the amended on).

                Is this a formal process of judicial enforcement of some legal standard for presidential obedience of the terms of the AUMF as it stands on the books? Of course not. And I don’t remotely claim that practically speaking, the president can essentially carry out the use of force authorized by the AUMF as he likes.

                My point was just that it’s nearly necessarily true that, at some level, there is some limit to the authority Congress meant to give to the president with the AUMF. There are people whom we can imagine nearly everyone in Congress agreeing that, even if the president determined otherwise, the law was not meant to allow him to kill. That was what I meant by saying that a test of what’s allowable under the law exists “at some theoretical point.” At some point of absurdity, people would begin to react to the use of AUMF in a way not in keeping with its intent, and you would begin to see pushback, whether in the form of legislative changes to the law, its repeal, other measures to bring an end to the warped use of the law, or, eventually, impeachment. These actions wouldn’t be judicial findings pursuant to the letter of the written law (which letter indeed wouldn’t preclude such warped determinations as that a newborn somewhere was targetable under the law, for example), but they certainly could be seen as “a test for whether these [unsupportable] presidential ‘determinations’ are legitimate under that law,” which would occur “at some theoretical point” of absurdity of such determinations. They’d instead be essentially a political and/or institutional test of same – just as all or most negotiation between Congress and the Executive over war powers amounts to the establishment and (mostly non-)enforcement of political and institutional tests of the legitimacy of various actions under various quasi-legal regimes.

                The courts won’t ever enforce the War Powers Act, either. this doesn’t mean that COngress can’t establish (political, institutional) tests for whether presidential actions are legitimate under its rubric.Report

              • Avatar James H. in reply to Michael Drew says:

                Michael,
                There is, after all, some person somewhere we could point to where most everyone in Congress as well as the president and his lawyers would say, “No, even if the president ‘determined’ this person was covered, in fact the law was not meant to authorize force against her.”

                Maybe, but I’m not confident it’s true. I read through a good chunk of the congressional debate on the 2012 defense authorization act, specifically the section where they tried to further codify those aspects of the AUMF dealing with who’s subject to detainment. There was nothing approaching consensus on limitations as to who coukd be detained, and there were repeated claims that the battlefield in the war on terror extended to the U.S. Detention isn’t the same as extradudicial execution, but they were employing the same arguments and logic.

                If there’s a standard, it’s that essentially anyone the president claims as a threat worthy of extrajudicial execution is accepted by a majority of Congress as worthy of extrajudicial execution. Perhaps the killing of a congressmember is where he’s crossed the line. Perhaps the killing of a white citizen who’s lived openly and would have been easy to capture. But those aren’t true legal standards, because they are not blind to status; they’re political standards.

                But a true legal standard agreed upon by most of Congress? Don’t bet on it. We live in a national security state (have since 1942), and have selected to fight a war that definitionally is without end. There are no legal standards that are reliably applicable to that situation. Or as the Republicans used to like to say, “that’s pre-9/11 thinking.”Report

              • Avatar James H. in reply to Michael Drew says:

                Damn, that was me, of course. I really need to buy my own IPad. The problem, though, is that IPad scrolls right down to the text box and doesn’t show the name and email boxes, and of course if they’re not visible, I never think to check them.Report

              • Avatar BlaiseP in reply to Michael Drew says:

                @James H: Fixed. And a few typos, too, heh.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                James,

                Respect for whatever you’ve said there; I’m sure it’s all true. I sighed because it was clear in light of your comment how unclear I’d been in my meaning & I didn’t want to leave what I was saying unclarified, but neither did I really want to take the time to clarify it. I basically don’t have many disagreements with what you’ve said in this whole thread, I just think we look at the situation slightly differently. Thanks for the discussion; I’m going to move along now. Have a good early part of your week.Report

              • Avatar James H. in reply to Michael Drew says:

                BP, thanks much (and I’ll blame the typos on too little coffe yet this morning).

                Michael,
                A) sorry to misinterpret you–you and I do a spectacular job of misreading each other. I assume it’s because you’re a cheesehead, and, really, who can understand those folks?

                I do hope I’m just overly cynical on this issue, though.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                You’re kind. You didn’t misinterpret me; I didn’t offer the idea in a complete way. I’ve said before that when I’m just trying to get the thoughts out of my head and onto the site, I frequently stop even making a decent effort to be clear and it comes out impossibly tangled and complicated; other times I leave it short and don’t spell it out enough. I think I leapt from the latter to the former this time.

                My extreme case to get you think about whether anything falls outside the meaning Congress intended (despite their total failure to offer any language to this effect, limiting the president’s ability to make unsupportable “determinations”) would be this: if a crazy president started saying that he’s determined every tenth newborn infant born at a particular hospital in Des Moines in fits the description given to those against whom he can use force in the AUMF, can we agree that there’s be agreement in Congress that the law doesn’t let him make that determination (even though on its face it does)? That some version of the remedial steps I describe would be Congress’ response? That’s really all I’m saying: somewhere along the line, Congress would start to better define the actual grant of authority they gave to the president in the AUMF. From there, I think it’s right to say that essentially racist considerations would determine the next most likely criteria that would get Congress to react (i.e. white grandmas next after white infants, and so on down the line). But I also think that if you asked around in Congress today, you’d find not-negligible numbers of members who would say (perhaps off the record) that “signature strikes” start to raise the question as well. And that was all I was claiming, that they have or will start to raise these questions in relevant quarters. Not to the extent that anything will be done about it, but just to the extent that people are thinking about it. I could be wrong about that, but I think I am not.

                Anyway, no need for you to agree or disagree; I just wanted to try to be clear about what I was saying.Report

              • Avatar Michael Drew in reply to Jaybird says:

                I don’t remotely claim that practically speaking, the president can essentially carry out the use of force authorized by the AUMF as he likes.

                *can’t*

                I don’t remotely claim he can’t do that, like you say, James, as a practical matter in all likely realities in pretty much the short and medium term. (I do think that in the long term, at some point the 2001 AUMF will come off the books, likely replaced by something else perhaps more, but perhaps a modicum less, unwise, unspecific, and poorly written…)Report

              • Avatar BlaiseP in reply to Jaybird says:

                My government is my proxy, not my outsourcing subcontractor. I don’t hand them an SOW and expect a progress report every week.

                Here’s another perspective on this, one you may grasp on the basis of Libertarian principles. American government power was attacked. Not just a few thousand hapless Americans in the Twin Towers, not just the military at the Pentagon — American power and prestige.

                In America, the streets were slippery with a collective orgasm of rage-fuelled patriotism. In other parts of the world, other people were cheering, burning American flags in a spirit of Schadenfreude. Absolutely nobody was thinking about these crimes as crimes.

                The Bush government went to war against Al Qaeda. It was the stupidest of all possible reactions to these crimes. The Bushies were never much on the rule of law anyway: for them, war was the only solution in their repertoire. The prior attack on the WTC had been treated as a crime, the Blind Sheikh was detected, arrested, tried and is still in jail. I might add in passing the new Islamic government of Egypt is asking for his release.

                Other terrorist attacks had been delegated to law enforcement and the FBI: the OK City bombing, case in point. If Bush43 had come out plainly and said “The perpetrators of these crimes will be brought to justice and woe betide the nation state which attempts to protect them, for you will treated as accessories.” — the USA would have cut through this Gordian Knot in a heartbeat.

                Consider what you wrote, Jaybird: bitching about drone strikes in countries against which we disagree. AUMF is a hideous bit of Newspeak. Applying armed forces to law enforcement problems is just plain stupid. If these countries are harbouring terrorists, we file an Interpol Red Letter on the terrorists, grab these nations by the scruff of their necks and plainly speak to them of what our military can do to nation states when law enforcement efforts fail to produce results.

                Horses for courses. The crimes of 9/11 belonged in the hands of law enforcement. But nation states which shelter the Al Qaeda criminals, they’re problems for the military.Report

              • Avatar Michael Drew in reply to BlaiseP says:

                I don’t disagree with your view about the right approach especially at this late date. But it’s worth pointing out that military responses to salafist terrorism didn’t originate only as a response to 9/11 or even with the Bush administration: the Clinton administration likewise took a mixed approach that included military strikes designed not at holding states harboring terrorists to account for those actions, but at eliminating the terrorist threats themselves.Report

              • Avatar BlaiseP in reply to Michael Drew says:

                When Bill Clinton fired cruise missiles at Al Qaeda, lo did the GOP rise to its piggy little feet and squeal with one voice “Monica! Monica! Wag the Dog!”Report

              • Avatar Michael Drew in reply to BlaiseP says:

                Lo, they did.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Remember when the OK City bombing went down? All that fearful rumour-mongering about Ay-rebs behind that attack? In that instance, cooler heads prevailed, law enforcement got to work and found the criminals.

                Had we dealt with 9/11 on the same basis, handed these crimes off to law enforcement, some sanity would have been imposed on that disaster. Colleen Rowley of the FBI had issued warnings. Nobody in the Bush43 administration acted on those warnings.

                But once 9/11 had gone down, the FBI were adamantly opposed to the torture of suspects. Politics took over. GOP politics. The frenzied, slack-jawed, bug-eyed, unhinged politics of revenge. Their oaths of office, swearing to support and defend the Constitution, went overboard as fast as they could throw them.Report

              • Avatar Michael Drew in reply to BlaiseP says:

                More than that, a good number of the senior figures were pointedly scornful of any suggestion they should concern themselves for a even a moment considering what customary or legal obligations they ought to respect in their response, save for advancing a doctrine of explicit executive wartime totalism,whether that response took the form of a civil law enforcement or a military conflict. That’s what will and does render that administration more sinister in the memory of the country and the world than its successor, even if the records of action and legal argument are or turn out to be broadly comparable, or even worse in later cases.Report

              • Avatar Kolohe in reply to BlaiseP says:

                “Horses for courses. The crimes of 9/11 belonged in the hands of law enforcement. ”

                This seems to be a 180 from what you said a few hours ago, (“For me, a drone is a perfectly appropriate weapon to strike an enemy which strikes us with airliners” and pretty much what the people you are so set on mocking are saying, particularly at this late (from 9/11).

                “But nation states which shelter the Al Qaeda criminals, they’re problems for the military.”

                The nation-states are problems for the military, or the criminals are problems for the military? I don’t necessarily disagree with the former.Report

              • Avatar BlaiseP in reply to Kolohe says:

                The disconnect only betrays your own simplistic biases. I’ve made my point extremely clear here. Out there in the wilds of al-Jawf province in Yemen, there is no law. Given that absence, we are entirely within our rights to strike our enemies with any weapon in our arsenal.Report

        • Avatar Shazbot5 in reply to BlaiseP says:

          What about the innocent baby girls that are killed by drones (or any other kind of bombing, really)?

          No declaration of war. No trial. Just attacks that sometimes kill innocent bystanders.

          Unconscionably immoral.Report

          • Avatar BlaiseP in reply to Shazbot5 says:

            The rain falls on the just and on the unjust. I’ve already laid out why there can be no Declaration of War. If it were a matter of trials, I’ve also patiently explained the jihaadi lives beyond the rule of justice.

            Where justice reigns, there also does the conscience flourish. Where it doesn’t, let’s not talk about Guilt and especially not the presumption of Innocence. It’s very sad, I know. But those two words don’t mean jack where a judge doesn’t say them.Report

            • Avatar Shazbot5 in reply to BlaiseP says:

              So if the Pakistani government detonated a bomb inside a major U.S. city that killed one person that Pakistan believed (no trial, maybe some evidence) was a criminal and the bomb killed dozens of children of U.S. citizens, that would be fine with you?

              What if China launched a missile at a location it believed we were holding its former political prisoners, killing dozens of American children?

              These are immoral and illegal acts.

              I’m against pretty much all military action and thought all the killing in, say, the Iraq war was wrong. But I am willing to say that if the U.S. has good reason to attack, declares war openly, allows innocent families time to at least try and escape before war starts, etc. that war could in some cases be justified, at least to some degree.

              But if we’re going to forget about declaring war, or following any laws that espect soveriegnty, all on a flimsy tu quoque basis, then we have no legitimate reason to complain if, say, China or Pakistan kills our citizens doing the same.Report

              • Avatar BlaiseP in reply to Shazbot5 says:

                Shazbot, let me attempt to put this in perspective. Here I must lift a few pages from the Libertarians: much as I scoff at them, much of what they say is true beyond any discussion. A government is not much different than a corporation. Many governments began as corporations, including some of America’s states. Constitutions are not much different than articles of incorporation.

                Shazbot, it may surprise and horrify you to know nations do murder each other’s citizens, especially their intelligence operators. If Pakistan’s government had someone killed within US territory, it would not be the first time. China does it too. Americans are no shirkers on this front. And our citizens are killed. There’s a wall at CIA Langley with stars engraved on it, one star for every such death of an American operator.

                Governments have no friends. They have allies. Even friendly nations spy on each other. Sometimes they have an enemy in common so they coordinate intelligence. I’m sure we’re cooperating with the Chinese on the Uighur jihaadists training in Pakistan just now. I’m equally sure we’re coordinating with the Uighur, getting intelligence out of China. Lots of money changes hands. You don’t get good intel from good people. You get it from bad people. And you pay for it.

                In the old days, we used to incinerate entire cities with firebombs and nuclear weapons. What makes you think we’ve evolved in the mean time? If there was a way to extract these jihaadis alive, from a strictly utilitarian perspective, all morality and sense of justice aside, we’d do it. Drones are as far as we’ve gotten at present. In the future, drones will be tiny, like the hunter-seekers of Dune. We will get exactly the people we want. And we’ll get them alive.

                But we aren’t quite there yet. We’re getting close though. It’s coming. All this Declaration of War stuff, that’s as dead a concept as the Divine Right of Kings, a point I’m only making again. Terrorism seems to be the new route to geopolitical prominence, everyone in the world knows who OBL is now. He’ll be a hero to some people for centuries. If our drones look awful to you, if they seem a bit illegitimate, we are responding to terrorism with terror of our own, mechanical Nazgûl filling people’s hearts with fear.

                Cast off your old tired ethical notions about war. They were never based on reality anyway. Nations don’t play fair and they never did. War only justifies itself. Immoral and Illegal are only meaningful where they have any power. Beyond those borders, it’s the drones and the jihaadis.Report

              • Avatar Shazbot5 in reply to BlaiseP says:

                I don’t mean to be uncharitable.

                But compare Blaise’s statement:

                1. “Cast off your old tired ethical notions about war.”

                to a nearly identical in form statement:

                2. “Cast off your old tired ethical notions about rape.”

                or perhaps more relevantly

                3. “Cast off your old tired ethical notions about torture”

                Blaise has elegantly written, what I would bluntly summarize as follows: “People kill and murder and commit international war crimes, and violate sovereignty, so we should too.”

                Tu quoque. 10 yard penalty, repeat first rebuttal.

                The mere fact that other countries torture is not a justification for us to do the same. Rape has been around since time immemorial. I am pessimistic we will ever get rid of it entirely. But we must aim at the good.

                The only relevant question is whether aiming bombs at suspected or would be criminals in other countries, sometimes U.S. citizens, without trial, in violation of the sovereignty of the country attacked, often times killing innocent men, women, and children is good. Maybe in some cases it is or could be good or necessary. But there are clearly times it would be wrong if someone did it to us, and we must recognize that it at least could be wrong when we do it to others.

                So, no, I will not cast off my ethics. I am an extremist for justice, or at least I aspire to be. Somebody else was too. Who could that be?Report

              • Avatar Stillwater in reply to Shazbot5 says:

                I don’t mean to be uncharitable.

                You sure about that?Report

              • Avatar Shazbot5 in reply to Stillwater says:

                Yeah. I think the eloquent words are masking some pretty shoddy reasoning in the case of this last comment.

                But obviously I’m not coming through as anything but the jerk here, so I bow out.Report

              • Avatar BlaiseP in reply to Shazbot5 says:

                Shaxbot, sometimes only the poets can tell us the truth. From Auden, Shield of Achilles

                A ragged urchin, aimless and alone,
                Loitered about that vacancy; a bird
                Flew up to safety from his well-aimed stone:
                That girls are raped, that two boys knife a third,
                Were axioms to him, who’d never heard
                Of any world where promises were kept,
                Or one could weep because another wept.

                There are places in this world where girls are raped and two boys knife a third. You have never known such places and simply cannot conceive of such places, beyond the rule of law.

                But I have known such places. To use a particularly feeble metaphor, it’s like you’re living in the Matrix.

                The Matrix is everywhere. It is all around us. Even now, in this very room. You can see it when you look out your window or when you turn on your television. You can feel it when you go to work… when you go to church… when you pay your taxes. It is the world that has been pulled over your eyes to blind you from the truth. That you are a slave, Neo. Like everyone else you were born into bondage. Born into a prison that you cannot smell or taste or touch. A prison for your mind.

                All your life you have lived in a world of laws, a world where water has always come out of the tap and the toilet has always flushed and the refrigerator has worked and 911 has always summoned a police officer. You are a hobbit, truth to tell, living in a bucolic world, protected from Mordor by the constant efforts of Rangers you don’t really trust.

                Take all that away. What’s left? Not Hobbes’ anarchy, but Auden’s ragged urchin.

                If suspects are tried in courts of law, if crimes are punished, you think this is because nations are sovereign. That is not true. Your government, for better or worse, has a monopoly on power and for that reason can enforce its writ. Many nations cannot enforce their writ and jihaadism has moved into the vacuum thus created.

                Nations are no longer sovereign in our interconnected world. The planet is too small for that sort of antique thinking. Such muddled though is an artefact of a world before the aircraft, where nice tidy lines on maps determine which state and nation’s tax forms we fill out.

                If our drones patrol the wasteland over Auden’s ragged boy, they are visitors from another world, a world where if rape and murder are perennial, they are also punished. If torture goes on in our world, it goes on in secret, in violation of the Eighth Amendment, in dark corners where tyrannous government can carve out oubliettes and dungeons.

                Nobody’s asking you to cast off your ethics. What I am asking is for you to recognise the Matrix Mechanism by which any ethical/legal system is enforced. War is man’s natural state. Peace is the Matrix Illusion, an illusion we must carefully maintain if we are to have justice in the world. Man’s laws are not the laws of physics which enforce themselves, you know. Ethical constructs are all in your head. They’re just words on a page in some corpus juris civilis until someone with mandate enforces them.Report

            • Avatar Shazbot5 in reply to BlaiseP says:

              And it isn’t rain falling on children, like some act of nature. It is us spraying them with bombs and bullets, intentionally killing them in a way that could be avoided by not bombing and shooting.Report

  13. Avatar Will H. says:

    Could someone please remind me why we did away with frag grenades?Report

  14. Avatar CK MacLeod says:

    Michael Drew @ https://ordinary-times.com/blog/2013/02/a-catechism-of-war/#comment-483579

    I don’t see the difference between Article 1 (Congressional Declaration of War) and Article 2 (C-in-C) as the main problem here. Declaration of War had a different meaning in an 18th C international-legal context than it does now, though the practical meaning of acts like the AUMF is similar, and fulfill the abiding interest in dividing war powers and requiring or strongly encouraging presidents to seek legitimation for any major or extended duration military action. Lincoln demonstrated that you could do an awful lot of warmaking and CinC-ing without a formal “Declaration of War,” and I suspect it’s also not coincidental that our last such up to now or last I checked was for the war that completed the overthrow of the Eurocentric legal order which Article 1 was appealing to, and that initiated the new historical phase of the transformation of war under an American-centric order. I believe that declaration of war in the old formal international legal interstate sense is now effectively reserved to the United Nations, whose Charter, not coincidentally at all, has problems of the very same type and in the same areas as our good ol Constitution, but which we also mainly prefer to have in place compared to the unknowable alternatives.Report

    • Avatar Michael Drew in reply to CK MacLeod says:

      There was a debate early on about whether the Congressional power to declare war was meant only to give that particular power to them but not deny various other war-making and even war-initiating powers to the president, or whether it was meant to reserve the authority to determine when to initiate and/or make war to Congress, for it to delegate to the president during defined intervals with whatever caveats it chooses to apply. My understanding is that the debate was resolved more or less in the latter interpretation’s favor, but with enough open ends that various parts of the debate have continued on to this day.

      But generally, I don’t think it’s understood that Congress prerogative extends only to whether war is formally declared or not, even though that is the power that is given to them. Generally, the domestic balance-of-powers understanding is that the president has only those war making authorities that the Congress grants him, with the limitations with which they grant them. It’s acknowledged, I believe, that Article II implies that the president has certain powers to protect the country in exigent circumstances (imminent threat, etc.), and the National Security Act (and, indeed, the War Powers Act) reflect those in statute. But those powers extend only as far as to allow the president to take action to protect the country against clear and present danger, etc. Those powers have not, since the reslution of the debate about the meaning of the War Declaration power, been understood to grant the president general discretion over war making or especially war-initiating decisions sort of outright declarations of war.

      IOW, for example, it was never understood that, even though lots of members of Congress apparently agreed the Gulf War could be fought without a formal declaration of war, that they therefore also thought that war could legally have been fought without a grant of authority from Congress to the president to do so. That’s why the Libya campaign was so nearly a cut-and-dry illegal war, though of course in reality these matters of the domestic disposition of war making powers are essentially ones of inter-institutional convention and negotiation and not of legality except in a formal way, since no court will ever adjudicate them. They are potentially impeachable, but on questions like this I think that James Hanley is right that that step is pretty much as much off the legislative table as adjudication of allegations of violations of the War Powers Act is definitively off the Supreme Court’s docket.Report

      • Bit of a tension there between “was so nearly” and “cut-and-dried,” illustrative of the in theory never finally resolvable tension between “constituting power” and “constituted power,” or between “sovereignty” and “rule of law,” and so on. Libya is paradigmatic not because if was so nearly cut and dried, or in other words ambiguous, as a legal matter, but because it showed how easily any president can shoot first and face legal questions later – if his orders are followed. He does what he does, and then presents Congress with a fait in the process of being accompli, knowing that Congress or congresspersons may huff and puff, but will not want responsibility for the house getting blown down. The same dynamic, though under a different set of legal particulars, took place throughout the Iraq War and the periodic empty threats to cut off funding. Been going on ever since the American ascension, as already noted, and the least difficult problem of all is intellectually manufacturing, if need be, some pretext of imminent threat or clear and present danger. Manufacturing a persuasive and durable pretext is a different question, and a wise or minimally competent president won’t run around making them up for the fun of it or transparently for the sake of self-aggrandizement. FDR had little difficulty convincing his administration that he really was the legit Prez and that there really were major problems going on in the world. Ike and JFK had little difficulty persuading their contemporaries that the USSR needed to be fought. No Declaration of War preceded Operation Mongoose. Clinton’s actions in re former Yugoslavia have already been discussed somewhere on this big ol war thread, but were far more extensive, to my understanding, than anything Obama sought in re Libya.

        Back when we were still declaring war in keeping with the European standard, we had a nice title for the Mexican-American war Declaration: “An Act providing for the Prosecution of the existing War between the United States and the Republic of Mexico.” Very informative page here http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States

        Next time someone says “Afghanistan was the longest war” we’ve fought, as you will sometimes hear stated, you can win points by saying that it was the war we fought for 46 years with the Apache Nation. “During that entire 46-year period, there was never more than 90 days of peace.” No Declaration either.Report

  15. Avatar Damon says:

    “Are we at war?

    Yes. We are at war.”

    There has been no formal declaration. We’re not at “war”. As a practical matter, we are, but still. Words have meanings.

    The killing will continue until morale improves. We are currently supporting terrorists in Syria. When they come to power, after overthrowing the current guy in power, we’ll realize that we need to “drone up” that area too, and so on, and so on.

    Welcome to the new world order–where due process is a bullet.Report

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