Rand Paul’s Misleading and Pointless Grandstanding….

Nob Akimoto

Nob Akimoto

Nob Akimoto is a policy analyst and part-time dungeon master. When not talking endlessly about matters of public policy, he is a dungeon master on the NWN World of Avlis

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  1. Avatar Michael Drew
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    says:

    The question Paul should have asked is whether the president and/or AG believes he (POTUS) can authorize the use of lethal force in the United States against an American citizen (or for that matter an alien) who poses an imminent threat of serious harm via terrorist or other attack, without charge or trial — using the same conception of imminence that is laid out in the White Paper [and presumably the OLC memos authorizing the killing of Anwar al-Awlaki] as being a necessary condition [along with infeasibility of capture and various others] for the use of such force against an American member of a force associated with those who carried out the 9/11 attacks who is located abroad. And if not, then why do different understandings of imminence apply in each case?Report

    • Avatar Michael Drew in reply to Michael Drew
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      says:

      …And there might be a good (legal) reason why there are two such understandings (not that I’d expect this administration to give it very effectively, willingly, or timely…ly), but I think this is the question to ask. Obviously, the president can order lethal force under truly imminent threat. But does he think he can do what he did to Awlaki here, under the same theory of the kinds of threat he posed.

      It may be that imminence and feasibility of capture interact is such a way as to explain the difference. Capture in certain geographic locations outside the U.S. may be feasible only in such a way that makes somewhat less imminent threats still functionally imminent (which is not to say that Awlaki’s threat fit that description), while in the U.S., there might be no possibility of a threat that is less imminent than one we’d all agree actually puts the president in a position of having to authorize lethal force (with no attempt to capture) to counter it (such as an airliner believed to hae been hijacked by people with 9/11-like intentions) that is not, precisely by virtue of being less imminent than that, therefore able to be countered by (at least initially) an attempt at capture. (Of course any given capture attempt can always evolve, depending on the reaction of the target once the attempt is in progress, into one involving lethal force in any law-enforcement, and certainly in any military, context…)Report

    • Avatar Michael Drew in reply to Michael Drew
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      says:

      …Also, the question I’d ask Rand Paul is whether he believes that, under U.S. law, international law, and the U.S. Constitution, the president can legally target outside the United States for death individual people who the president believes fit the description laid out in the 2001 AUMF as people the president can use “all necessary and appropriate force” against but who do not pose an imminent (under a strict common understanding of what the term means) threat of terrorist attack and who are not engaged in hostilities on a hot battlefield? And if he does, then by exactly what legal distinctions does he believe that does not apply to U.S. citizens, and then also not inside United States territory (wrt to citizens or to citizens and non-citizens alike, whichever he believes it does not apply to there)? (And if he believes he cannot do that legally, it’s, then why aren’t we hearing as much about that from, since it’s actually happening a lot, as we are about the prospect of targeting citizens in the U.S. in not-imminently-threatening situations, which is not happening, and no one claims to be able to do?)Report

    • Nob Akimoto Nob Akimoto in reply to Michael Drew
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      says:

      Short answer to your comments in general:
      I agree.

      Longer answer.

      I think your comments underline what people WANTED Paul to ask. There’s a lot of projection onto Paul as a result of that.

      I do think Holder has not been a particularly effective speaker on the subject of the Administration’s policies and legal opinions.

      From what I understand though, there’s also an element of control and sovereignty involved with the use of law enforcement/capture as the preferred method of disruption.

      In essence the Administration based on its own logic, if resorting to a shoot first, capture never policy on US soil, would be tacitly acknowledging (in a legal argument way?) that the US no longer has sovereignty or effective governing control over that piece of territory. Admittedly this is a stretch interpretation, but it has some contortions that make it difficult for them to actually use that.

      I would suggest that what would worry me more is non-federal agencies getting armed drones. Making a drone armed with some sort of firearm is trivially easy. I can see situations where they’d be used in lieu of say, a sniper watching a house and being used to fire on otherwise innocent people based on twitchy cops.

      In this I can see the importance of actually regulating drone use in the US, through either the FAA or some other agency.Report

      • Avatar Michael Drew in reply to Nob Akimoto
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        says:

        On Holder: much of what he’s saying is positively counterproductive at this time. I don’t think his communication style is particularly helpful, but at the same time I think the basic problem is not his capabilities, but rather is ultimately the policy/legal analysis/positions of the administration, and what those make it impossible for him to say or in some cases necessary for him to say.Report

  2. Avatar BlaiseP
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    says:

    Holder made a botch of his answer. He should have come straight out and say “Not without getting the Senate Select Intelligence Committee involved. We do involve that august body, you know.”Report

    • Avatar James Hanley in reply to BlaiseP
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      says:

      Not good enough, if we want to remain a free people with constitutional protections against our government.

      As Montesquieu defined tyranny, all power in the hands of one or a few people. The executive meeting with the Senate Intelligence Committee to decide if someone can be executed is still a tyrannical denial of due process of law.

      The Constitution not only is supposed to constrain the executive, but the legislative. And here you don’t even involve both houses of the legislature.

      It’s nothing more than a proposal on how to give a dictatorship a fig leaf of legitimacy.Report

      • Avatar BlaiseP in reply to James Hanley
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        says:

        You’re right, of course. But Montesquieu also said liberty is the right of doing anything the laws permit. The laws allow the President to do these things.Report

        • Avatar James Hanley in reply to BlaiseP
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          says:

          The laws allow the President to do these things

          Oh, hell, no, Mr. Yoo.Report

          • Avatar BlaiseP in reply to James Hanley
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            says:

            There’s always a Mr. Yoo in these things, the proverbial weasel in the proverbial woodpile somewhere. There’s a bit from a series I watched on Henry Tudor, where he hauls some scholarly type up by the scruff of his neck and demands he find some law whereby Henry’s petty despotism could be justified.Report

            • Avatar James Hanley in reply to BlaiseP
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              says:

              Everything there but a defense of your claim.Report

              • Avatar BlaiseP in reply to James Hanley
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                says:

                Heh. John Yoo’s the attorney in this situation. “Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?”. If that question is asked of the President’s legal counsel, what’s his reply going to be, James?Report

              • Avatar Patrick Cahalan in reply to BlaiseP
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                says:

                Yes.

                That’s going to be his answer.

                And, strictly speaking, that’s the correct answer. He does have the power to do that.

                What he doesn’t have legal authority to do that. Which doesn’t mean he can’t do it (he can) or that he won’t, ever (he might, for he = some president) but that if he does he should have to defend that action to the legal system.Report

              • Avatar James Hanley in reply to BlaiseP
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                says:

                I considered explaining the obvious point that went over your head, Blaise, but then I decided it’s more amusing not to.Report

              • Avatar BlaiseP in reply to James Hanley
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                says:

                You need to read more Montesquieu.Report

      • Avatar Jim Heffman in reply to James Hanley
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        says:

        “The executive meeting with the Senate Intelligence Committee to decide if someone can be executed is still a tyrannical denial of due process of law.”

        And the SSCI is, at least, answerable to voters, who can presumably elect other Senators if they don’t like activities which are overseen by the SSCI.

        At some point you have to trust that the people you voted for will act in your best interest, in good faith, because if you refuse to give anyone that trust then it’s move-to-Somalia time.Report

        • Avatar Kim in reply to Jim Heffman
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          says:

          *snort* no, then it’s time to call the FBI.
          Trust, but verify. and have the guns to take out the malfeasance.Report

        • Avatar Jaybird in reply to Jim Heffman
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          says:

          Does that extend to Rand Paul as well?

          (Also: Somalia now has a recognized government. Please use “Detroit” in future examples.)Report

        • Avatar James Hanley in reply to Jim Heffman
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          says:

          I think Jim missed the point about even Congress being constrained by the Constitution.

          Even if both houses overwhelmingly vote in favor of something that violates the Constitution, and the president signs it into law, it’s still unconstitutional (see Act, Communications Decency). “Trust” is a red herring.Report

          • Avatar Jim Heffman in reply to James Hanley
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            says:

            You mean like putting constraints on the type of substances that people consume in their own homes? Because the Volstead Act kind of did that, and that was so Constitutional that they actually made it part of the Constitution.Report

  3. Avatar Russell Saunders
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    says:

    Well, suffice it to say I disagree with your take.

    Do I agree that Paul filibuster was a great deal of political theater? Of course.

    Do I agree that the Senate has made an absolute hash of dealing with the innumerable civil liberties ramifications of War on Terror, which it seems will be with us in saecula saeculorum, from Gitmo to extrajudicial killings of US citizens elsewhere in the world? Of course.

    Do I think the particular tactic of filibustering the nominee to head the CIA is silly? Perhaps.

    But heaven help us, it is about time there has been some kind of high-profile legislative action calling attention to what appears to be an ever-broadening sweep of powers accruing to the President’s authority to prosecute the War on Terror. Since the American people seem incapable of attending to the actions of its government in the absence of theatrics, then bring on the theatrics.

    I do not want secret memos discussing when the government gets to decide to kill people to become the de facto law of the land. I do not want US citizens detained without trial for years on end. I want the Senate to do its goddamn job and craft legislation that effectively checks the executive’s power in this area, and if grandstanding moves the needle then I applaud the grandstander.Report

    • Nob Akimoto Nob Akimoto in reply to Russell Saunders
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      says:

      I suppose the question is:
      Has the needle been moved at all?

      Or has it just turned into yet another piece of pointless theater?

      Further, again, the due-process less use of lethal force is and issue in the US, but it’s not secret kill lists, or executive decisions that are the driving force behind it, but rather law enforcement agencies that are increasing militarized and operated on a sub-federal level.

      Has this grandstanding produced anything to address that issue? No. Will it? No, because it’s effectively now been reduced into ridiculous caricatures of evil nefarious government lobbing missiles at cafes.Report

      • Avatar Bob2 in reply to Nob Akimoto
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        says:

        Needle hasn’t been moved because Rand Paul is being insincere and has no intent on doing anything nor has he convinced anyone else in the Senate to actually do anything.
        This was just a way to score cheap political points, not for any attempt at substantive action.Report

        • Avatar Jaybird in reply to Bob2
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          says:

          So it’s one of those things where the needle *MIGHT* move if someone sincere did something like this?

          Does the Senate have one of those?

          If it doesn’t, I suppose I’m going to have to be pleased that it has at least one insincere person pulling this bullshit.Report

          • Avatar Bob2 in reply to Jaybird
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            says:

            Please you are intentionally misreading me. Rand Paul has no intent to follow up on this after the media cycle is over. He has every reason not to.

            If someone sincerely means it in the Senate, they’ll follow it up with legislation or action like John Kerry did in the 80’s with Nicaragua and the drug trade or any number of foreign policy accomplishments he had despite bucking Democrats and Republicans on them.

            Rand Paul is historically not this kind of man.

            Why don’t you ask Al Franken on his sincere stance on drone strikes?Report

            • Avatar Jaybird in reply to Bob2
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              says:

              Oh, is he in the Senate?

              I wouldn’t have guessed. Did he get up to help filibuster after Rand needed a drink of water?Report

              • Avatar Kim in reply to Jaybird
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                says:

                Al Franken is doing his damn job in the senate. And from what liberals say, he’s doing a damn fine job.

                (yes, he’s been non-comedic. you expected otherwise?)Report

              • Avatar Jaybird in reply to Kim
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                says:

                If all I had to work with was what Liberals say, I might come to the conclusion that it’s okay to pre-emptively use the military against US citizens on US soil.Report

              • Avatar Kim in reply to Jaybird
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                says:

                I was talking an honest evaluation of his performance, as judged against his peers (my Senator is a nobody. I know this.).

                And jay, you ought to be very very glad I’m not using what self-professed libertarians actually do , or I’d jump to some…
                seriously interesting conclusions.Report

              • Avatar BlaiseP in reply to Jaybird
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                says:

                Rest easy, there, big guy. You’ll have to be content with what Liberals actually do, or try to do, in any event. Obama’s been trying to close down Gitmo for some time now, with no cooperation from You Know Who.

                He’s also tried to get a law passed requiring the videotaping of interrogations in capital cases, the ‘‘National Criminal Justice Commission Act of 2011’’. The Innocence Project has been yelling about this one for years. Obama got just such a law passed in Illinois and I think it’s a good step if you’re a civil liberties kinda guy. But again, no dice, it was tabled and never went anywhere. Once again, things that make ya go hmmmm…

                Obama has worked hard to get information declassified and into the public domain — also keeping information from being unnecessarily classified. A good idea, I think. At least Obama’s National Security Advisor isn’t Condi Rice, who can’t see fit to warn POTUS about terrorists planning to fly aircraft into skyscrapers. Obama’s NSA works to declassify stuff.

                I’m not holding up Obama as a great defender of civil liberties. But he really has tried. If he hasn’t succeeded, you won’t find Liberals defending him. I’m not happy with Obama’s stance on the use of the military to deal with matters more properly handled in the civilian justice system. I wouldn’t give Obama more than an Incomplete. He really did try to shut down Gitmo — but he didn’t.Report

              • Avatar Jaybird in reply to BlaiseP
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                says:

                Blaise, when Dumbya was in office and I spent much of my time whining about the debt and the deficit, I was told such things as “Democrats would be worse”. Wouldn’t you know it, the Democrats won the next few rounds of elections and, yep, the debt and the deficit are getting worse… and, of course, now the Republicans are screaming bloody murder.

                Exactly how seriously do you think they’re being taken on this issue?

                I bring that story up because, someday, the Republicans will have the White House again.Report

              • Avatar BlaiseP in reply to BlaiseP
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                says:

                Well, I try to be fair about these things. Results are what count in all this — and truth to tell, there aren’t very many good results, are there?

                I dunno. As you say, every time we think it’s gotten as bad as it’s gonna get, we can rely upon Congress to further astonish us all with their incompetence and outright malfeasance. And at the risk of being diagnosed with bicameral poxosis, I don’t know if Obama is any better — or even if there’s a comparison to be made. Worse than what? And worse than when? The consequences of the deeds of one president don’t all appear in his term in office. It’s usually the next president who gets blamed. I bring to mind Bush the Wiser having to deal with the fallout from the deregulation of the S&Ls, which didn’t really come a cropper until his era. That deregulation was Carter’s doing. Reagan’s economy benefited from that torrent of capital and Bush41 had to raise taxes to pay for the bailout. Had to break an important promise to deal with that mess, too. Cost him a second term.

                Now we’ve got the same problem, only it’s the GOP saying “NO NEW TAXES” and won’t budge. For years, we had high spending and lower taxes. Now, the very people who thought these were great ideas want lower spending, but no new taxes. It’s all too stupid for words.Report

              • Avatar Bob2 in reply to Jaybird
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                says:

                Rand Paul is being an opportunist. Plain and simple.
                Of course it’s sad that the talk in here is about Rand Paul when Ron Wyden and 10 other senators, 9 Dem, 2 Rep (Grassley/Lee), were already asking for a justification, and it appears Rand Paul just jumped on board to take a potshot for his career.

                http://www.wired.com/dangerroom/2013/01/wyden-brennan/Report

              • Avatar Pub Editor in reply to Bob2
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                says:

                Ron Wyden has rendered valuable service in the drone debate before, and I applaud him for it. If Sen. Wyden or any of the colleagues you mentioned wished to join in Sen. Paul’s filibuster, that too would be worthy of applause and accolades. But we work with the facts we have. (BTW, how do we know that Sen. Paul’s motives are any less “pure” or disinterested than Sen. Wyden’s?)Report

              • Avatar Kim in reply to Pub Editor
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                says:

                Knowing who his allies are, might be a good way to demonstrate bona fides, and not merely “changes at a moment’s whim”.

                Seems like the lad’s learnin’.

                I’ll grant him a dollop more respect than I had for him yesterday.

                If he can keep the positions he’s got now, he might get more.Report

              • Nob Akimoto Nob Akimoto in reply to Pub Editor
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                says:

                From what I recall Ron Wyden DID join Paul’s filibuster or at least supported it.

                Also, I’m inclined to be skeptical of Paul’s motives, because of his craven behavior regarding the Hagel nomination.Report

        • Avatar Patrick Cahalan in reply to Bob2
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          says:

          For the record, Rand Paul was one of the “nay” votes on re-upping the warrantless wiretapping program.

          His record on civil liberties is pretty good, with a couple of glaring exceptions related to women’s reproductive rights, but those are differences of foundational principles.Report

      • Avatar Russell Saunders in reply to Nob Akimoto
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        says:

        Now we’re getting into the realm of prognostication.

        If Rand Paul is predicating his (widely presumed) run for the White House in 2016 on civil liberties issues as they pertain to the War on Terror, then I actually think it could move the needle quite a lot. That these questions would be raised from within the GOP tent (much to my shame as a Democrat) could move the needle quite a lot.

        We’ll see.

        I take your point about law enforcement issues. I also think the whole “drone” aspect of this debate takes up too much space.

        But my underlying dismay remains — the President appears to enjoy essentially unchecked power when it comes to the murky details of the War on Terror, and I happen to think Paul’s efforts may actual do so good.Report

        • Avatar Marchmaine in reply to Russell Saunders
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          says:

          I think Russell has the nub of it; aspiring globalist technocrats are not the audience for this. As Tod comments below and Russell hints above, “grandstanding” is sometimes exactly what is needed to turn up the volume so the needle starts to move.

          I tuned in CSPAN for the first time in, oh, a decade (maybe two), and hardly found him frothy. He kept reading Holder’s utterly inept reply every 15 minutes or so… and, honestly, that was all he needed to do to embarrass Holder (and by implication, the administration). Perhaps the best tweet of the night was the one suggesting that a Senator Obama would likely have been joining him highlighting the overreach of a President McCain.

          The reason this may work (eventually) is precisely because this is bad Public Policy at the highest level – the level at which most folks contemplate Public Policy – and the broad perception is that placing our trust in nuance and hope and technocratic ethics is not a better policy. This really shouldn’t be a Team Red/Team Blue spectacle.

          And, in the realm of filibustering, this is exactly the sort we should sanction.Report

        • Avatar Mike Schilling in reply to Russell Saunders
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          says:

          That’s the thing. Paul isn’t going to get the Republican nomination on civil liberties or scaling back the GWOT. He might get it by opposing Obama at every turn. So if he can win this purely academic point (honestly, no citizen is ever going to be blown up by a drone on American soil while eating waffles at IHOP), he can square that circle. This isn’t going to lead anywhere useful, because real limits on presidential war-making power are unpopular..Report

          • Avatar Jaybird in reply to Mike Schilling
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            says:

            So if he can win this purely academic point (honestly, no citizen is ever going to be blown up by a drone on American soil while eating waffles at IHOP), he can square that circle.

            Wouldn’t you prefer Obama to say “when it comes to American Citizens on US soil, we’ll always get a warrant and we’ll always try to arrest them” and then have the Republicans be the ones who disagree loudly with weird hypotheticals about what ifs and what abouts?

            Just as a purely academic point?Report

          • Avatar Jason Kuznicki in reply to Mike Schilling
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            says:

            (honestly, no citizen is ever going to be blown up by a drone on American soil while eating waffles at IHOP),

            Life’s a funny thing.

            I recall the Bush administration describing its use of the “unlawful enemy combatant” status, and people raising concerns about that. “Relax,” said the administration’s defenders. “It’s not like we’re going to torture them.”

            We build the walls where they stand not because it’s terrible on this side, but because it’s terrible on the other.Report

            • Avatar Mike Schilling in reply to Jason Kuznicki
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              says:

              “Relax,” said the administration’s defenders. “It’s not like we’re going to torture them.”

              I presume that’s hyperbole (not a criticism.) Did the question of torture even came up before the evidence of it started being denied?Report

          • real limits on presidential war-making power are unpopular.

            No arguments here. But they’re still deeply important, and thus I’m quite pleased when someone brings them up.Report

      • Avatar Chris in reply to Nob Akimoto
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        says:

        I do agree that there is something odd about worrying so much about a remote chance that the CIA or the military will kill American citizens on American soil, while not spending any real time worrying about the fact that police assault, and in some cases kill, people without trial multiple times this year, and next year, and the year after that, and so on.

        I think there are implications to the direction of anti-terrorism policy that are disturbing, and it is important to address them (though I worry that Paul’s methods are counterproductive, because they make the issue a divisively partisan one, but who knows what the result of this increase in attention will be), but I’d be much happier if we addressed the people who are dying at the hands of the state right now, on American soil, too.Report

        • Avatar Shazbot5 in reply to Chris
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          Paul is worried about white, Christian Americans not getting due process. He agrees that if you are black, the police have a right to shoot you 17 times on the suspicion of violence, anally rape you with a broom to “question” you, or if you are Muslim or Arabic or brown skinned and you have family that are brown skinned or Muslim, then who cares. He is worried about future little white girls being killed.

          I have told everyone that the public will go against the drone program when it starts killing little white girls. At that point Nancy Grace will rise up from te deeps to destroy it in a whirwilnd of outrage.

          Ph’nglui mglw’nafh Cthulhu R’lyeh wgah’nagl fhtagn: “In her house at R’lyeh, Nancy Grace waits dreaming”.Report

          • Avatar James Hanley in reply to Shazbot5
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            says:

            Paul…agrees that if you are black, the police have a right to shoot you 17 times on the suspicion of violence, anally rape you with a broom to “question” you,

            Cite?Report

            • Avatar Barry in reply to James Hanley
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              says:

              Easy – where’s his fillibuster of the War on Drugs?
              I mean a real one, where he fillibusters each and every bill.Report

            • Avatar Shazbot3 in reply to James Hanley
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              says:

              Yeah, “agrees that” was way too strong. I apologize. My liberal fire-breathing lead me astray.

              I should’ve said “He hasn’t done anything to prevent nor has he made any serious objections about. And he has avoided opportunities to speak out about the violations of the rights of blacks and Muslims.”

              I meant to say that his demonstrated level of concern over the rights of white citizens in America is greater than his demonstrated level of concern over the rights of Arab American citizens abroad and black citizens domestically. This is analogous to Nancy Grace’s demonstrated level of concern for white female murder victims being greater than her level of concern for black and minority victims. If subtle or not so subtle racism is a likely culprit in the Nancy Grace case of who she demonstrates concern for, then it is -by analogy- a likely culprit in the Paul case, too.

              But there is too little evidence to be certain.

              I’d want to ask him questions about TSA and police racial profiling, the former of which he seems to favor, not sure about the latter:

              http://politicalcorrection.org/blog/201201240010

              Here he addresses the subject and states that he might not be such a big free speach and association fan, if we are talking about the rights of, primarily, Islamic and Muslim people.

              http://articles.baltimoresun.com/2011-06-08/entertainment/bal-20110608_1_rand-paul-speeches-comments

              “”I’m not for profiling people on the color of their skin, or on their religion, but I would take into account where they’ve been traveling and perhaps, you might have to indirectly take into account whether or not they’ve been going to radical political speeches by religious leaders. It wouldn’t be that they are Islamic. If someone is attending speeches from someone who is promoting the violent overthrow of our government, that’s really an offense that we should be going after — they should be deported or put in prison,” Paul said.

              These convoluted comments appeared so completely divergent from Rand’s positions on other civil libertarian issues many people hardly knew what to make of them.

              Rand appeared to be advocating racial profiling — but he didn’t want to be accused of racial profiling — so he skewed it some and tried to argue for profiling of people attending radical Muslim speeches, except he didn’t want to say Muslim speeches. He ended up saying he’s not for profiling while advocating profiling.

              Comedian Stephen Colbert properly skewered these convoluted profiling-yet-not-profiling comments on “The Colbert Report” last night.

              “The Bill of Rights guarantees freedom of speech, not freedom of listen,” Colbert joked.”

              He was “skeptical” of “the ground zero” mosque (not so, Ron Paul) and argued that the 14th amendment should be revised:

              http://www.huffingtonpost.com/2010/08/17/rand-paul-opposes-ground-_n_684578.html

              http://www.salon.com/2010/08/23/ron_and_rand_paul_on_mosque/Report

            • Avatar Shazbot3 in reply to James Hanley
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              says:

              I wrote a reply with links, but it is in moderation.

              Long story short, my claim that “he agrees that” or “he believes that” was obviously too strong. I apologize. A better claim was, he has demonstrated less concern about…Report

          • Avatar Jaybird in reply to Shazbot5
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            says:

            If there’s anything I hate more than white, Christian Americans it’s white, Christian Americans not getting due process.Report

          • Avatar Glyph in reply to Shazbot5
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            says:

            Close, but no M.A.

            I guess I don’t understand this line of reasoning. Granted that you are much more likely to die at the hands of the police, than via Executive-targeted extrajudicial killing of US citizens. Many people have been complaining about this for years (Balko et al). Just because the focus is now primarily on newer problem B does not mean older problem A is unimportant to the focusers.

            One argument that I can see for focusing on E-TEKoUSC (if there is a better acronym or shorthand out there, LMK) is that the “concrete is not set yet”; there is still a chance to change things, we haven’t gone too far down this road just yet. Undoing the militarization of our police and the erosion of the Fourth and the WOD, which have been built up now through decades of precedent, is going to take a while, if we are lucky enough for it to happen at all.

            But sufficient public pushback on this could make changes today, in the form of an Executive Order or the like.Report

            • Avatar Chris in reply to Glyph
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              says:

              Glyph, it is true that there are people, of whom Balko is one, who worry about police violence. It is not true that there are national level politicians who seem to be at all worried about it. If you’re worried about the state killing its citizens without a trial, wouldn’t you want to spend a significant amount of time on the sorts of cases that are actually happening?

              That’s not to say that increased executive power in the war on terrorism is not a problem, or that politicians shouldn’t focus on it. I just suspect that there issue is something other than the state killing its citizens, because it happens all of the time, and I haven’t heard a peep from Paul.Report

              • Avatar Jaybird in reply to Chris
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                says:

                If you really cared about X, you’d also care about Y. Since you don’t care about Y, we know you don’t really care about X.

                Therefore, we do not have to take what you say about X seriously.

                Am I getting any part of that argument wrong?Report

              • Avatar Chris in reply to Jaybird
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                says:

                Jaybird, except in this case, both X and Y are actually X.

                If you don’t care about the state killing people without a trial, why should I believe you care about the state killing people without a trial?

                Clear as mud?Report

              • Avatar Jaybird in reply to Chris
                Ignored
                says:

                But doesn’t that flip it around? Would I get to say that Shazbot doesn’t really care about inner city urban at-risk youths getting plungers up the butt because he doesn’t care about drone attacks?Report

              • Avatar Chris in reply to Jaybird
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                says:

                I think there’s probably a line of argument you could make that would get you there, but I’m not sure it’s what I think. My big issue is that in one case, we’re already doing the killing, while in the other case, it’s possible that we might do it in the future. If you’re not worried about it actually happening, why should I think you’re worried about it potentially happening in the future? If you’re not worried about it potentially happening in the future, it’s entirely possible that you’re simply more worried about the actual people dying rather than the hypothetical ones. If you’re more worried about the hypothetical ones than the actual ones, something’s wrong with you.

                That said, I think if you’re genuinely worried about the state killing people, you should be worried about both.Report

              • Avatar James Hanley in reply to Jaybird
                Ignored
                says:

                That said, I think if you’re genuinely worried about the state killing people, you should be worried about both.

                Which is why the OP’s “you shouldn’t be bothered by that one, you should be bothered by this one,” argument is getting so much blowback, yes?Report

              • Avatar Glyph in reply to Jaybird
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                says:

                Let’s assume Paul’s motives aren’t “caring” about the issues that I care about, or in the same way, or to the same degree. That they may be simply attempts at cheap political point-scoring.

                Why does that matter? Isn’t the right thing to do still the right thing to do?

                And, if Greenwald doesn’t care about police militarization (but I bet he does), and Balko doesn’t care about Executive killings (but I bet he does), does that make either one of them wrong, when they say about their respective hobby-horses, “hey, CUT IT OUT!”Report

              • Avatar Chris in reply to Jaybird
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                says:

                Glyph, my point is not so much that Paul shouldn’t do this (though I genuinely worry that it will become a politicized issue, I vacillate on the extent to which Paul can avoid that), as that Republicans, including the more libertarian sorts, in government (not the libertarians with blogs, left or right), don’t ever seem to care about police violence. I find this… problematic… if your issue with the war on terror is the government potentially killing its citizens .Report

              • Avatar Shazbot3 in reply to Jaybird
                Ignored
                says:

                Well, I’m really getting hammered on that overstatement.

                IMO, Democrats have been racist in not fighting for the civil rights of blacks, women, Muslims, etc., too. Case in point: Too few Democrats have pushed for the closing of Gitmo, the end of the drones. Too few have pushed for ending the horrible policy of taking the right to vote from convicted criminals, which disproportionately effects blacks.

                But it’s a matter of degree here. Republicans are worse. National Review was against the Civil Rights Act. Rand Paul seems a little hesitant about it. Etc., etc.Report

              • Avatar Mopey Duns in reply to Jaybird
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                says:

                It has an incredibly disproportionate effect on criminals, too, for that matter.Report

              • Avatar Barry in reply to Jaybird
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                says:

                “Am I getting any part of that argument wrong?”

                Most of it; I’ll let others straighten you out (hints: ability to do something about it matters).Report

              • Avatar Glyph in reply to Chris
                Ignored
                says:

                But an E-TEKoUSC is, IMO, potentially uniquely-subversive to our democratic system itself in a way that one, or even ten thousand “non-targeted”* police killings are not. That power makes the President into a King, even if that King has a small circle of advisors or a Star Chamber helping him decide who gets the axe. And eventually, that power can be used (at least as a threat) towards domestic political enemies.

                *(scare quotes intentional, since the degree to which police militarization can be seen as conscious/intentional attempts at state control of certain targeted groups, vs., IMO, the sort of mindless accruing of power and status that organizations tend to get up to and use against the least-powerful when left unchecked too long, can be reasonably debated.)

                And anyway, like I said – you can grandstand against the avalanche of what we have ALREADY done to ourselves civil-liberties-wise, to little avail; or you can grandstand on this newer issue, where – I think – the pebbles still have time to vote.

                That just seems a matter of “bang for buck” and choosing your battles, no?Report

      • Avatar Jason Kuznicki in reply to Nob Akimoto
        Ignored
        says:

        Has the needle been moved at all?

        …and, if you believe that it hasn’t, well, have you seen the coverage these issues have gotten today? Does that change your mind? If it didn’t, what would? What, in other words, is your true rejection of the thesis “this isn’t moving the needle at all”?

        And, if it’s not too much to ask, what would in your view move the needle, if not speaking up at length in the U.S. Senate?Report

    • Avatar Michael Drew in reply to Russell Saunders
      Ignored
      says:

      I tend to agree with you, Doc, that just generalized attention is still better than none. In particular, I think the emergence among Republicans of evidence of crass partisan motivation to confront the Executive over war and counterterrorism powers is particularly encouraging. (This is what we should want, because a partisan model ensures there is always some pushback rather than often none, since there will always be the tendency on the part of the president’s party to defend him.)

      But one still does want the right questions to be asked, and for misleading claims not to be the basis for the attention.Report

    • Avatar Michelle in reply to Russell Saunders
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      says:

      I also agree with the Doc. Even if Rand’s act is a piece of political grandstanding (isn’t that the definition of a good, old-fashioned filibuster?), bringing attention to the vast expansion of presidential powers is, to my mind, an overall good thing. I hope Paul has a follow-up act that involves proposing some genuine legislation. I’m pessimistic, however, that much of the public actually sees a problem with the vast civil liberties grab that occurred post-9/11.Report

      • Avatar Patrick Cahalan in reply to Michelle
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        says:

        Paul is in the difficult position of being a minority in his own party on this.Report

      • Avatar Mike Schilling in reply to Michelle
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        says:

        This was definitely done for attention — an old-fashioned stand-up filibuster that won’t derail the nomination. A serious filibuster is quiet and effective.Report

        • Avatar Michelle Togut in reply to Mike Schilling
          Ignored
          says:

          The only reason the Republicans’ sandbagging of yet another judicial nominee is effective is because the rules allow Republicans to get away with it. They really need to change the rules so that all filibusters have to be of the spoken type, where the Senator or Senators get up and speak for hours and hours. The silent filibuster of the type Republicans have abused repeatedly during the Obama administration allows the Republicans to block almost any legislation, yet not come off as purposely obstructionist. If they actually had to go to the floor to filibuster an appointee, they’d be a lot more thoughtful about using that power.Report

  4. Avatar James Hanley
    Ignored
    says:

    I like Russel’s post better. I think you are simply wrong that POTUS hasn’t claimed authority to execute an American citizen on U.S. soil without benefit of trial. Bush claimed his powers were effectively unlimited, and Obama has claimed authority to kill citizens without trial in the theater of the war on terror, which he knows very well both Democrats and Republicans have claimed includes the territorial United States.

    Oh, he might not need to, since we could probably catch a guy without using a drone to kill him, but let’s not fool ourselves that the authority has not been claimed.

    And the argument that we don’t need to worry about the president doing this is very shortsighted, it seems to me. If you look at the growth of executive power over the last century I don’t think there’s any justification for such complacency.

    Yes, those over-reaches of law enforcement are a more immediate threat to more citizens’s lives, but those still are understood to be illegal, and police can be held accountable (although the standards for doing so are ridiculously high). They do not raise the question of whether there remain any real constraints on executive power, whether the U.S. will in fact remain a free country, as do the claims of a succession of POTUSES.

    That is the most important question facing this country, and to date we are refusing to address it. If political theater from a two-bit bumfuck senator helps bring attention to it, I’m all for it.Report

    • Avatar BlaiseP in reply to James Hanley
      Ignored
      says:

      Congress gave POTUS those powers: they could in like manner take them back. For all “our” entirely justifiable fears of executive overreach, only Congress has the mandate to restrain those powers — with the backup of SCOTUS, naturally, but Congress makes the laws and controls the money.

      When Johnson got us into Vietnam, bit by bit — and Reagan went behind Congress’ back with Iran/Contra, a few people were given a slap on the wrist. Presidents thereafter, like so many cunning and wilful dogs, knew where the new No Go Line was drawn and have been abusing it ever since. It’s pointless to yell at the dog if you’re not willing to crate him and re-establish the old No Go Line.Report

      • Avatar Russell Saunders in reply to BlaiseP
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        says:

        they could in like manner take them back.

        Indeed. That they seem wholly unmotivated to do so is shameful.Report

      • Avatar Michael Drew in reply to BlaiseP
        Ignored
        says:

        Actually, Congress can’t take them back because they don’t stem from Congress, at least not unless Rand Paul meant to only ask about what the administration thinks AUMF allows the president to do in the country, which his wording does not suggest to be the case. He was simply asking about the powers generally. If the idea that inherent Article II powers encompass the power/duty to take actions to directly protect the country from a real, present threat regardless of Congressional action, which seems to me to be the minimum that anyone who thinks those powers exist would have to hold, then it simply follows that the president has the power to order lethal force against even an American citizen who poses such a threat if lethal force is necessary to counter it. And lat time I checked, every president believes Article II confers such a power/duty.

        Indeed, inside the country is the place where it would presumably be most clear that the president has such power, since a such a threat existing inside the country would rather clearly tend to be more dangerous and more imminent than one still outside it.

        This seems much less problematic to me than many others would have it.Report

        • Avatar BlaiseP in reply to Michael Drew
          Ignored
          says:

          Well, yes, that’s a good expansion on the problem domain here. My point was too-simply stated. In specific cases, Congress has acted to restrain the warmaking powers of the Executive: it simply cuts off the funding for a war.

          Where no wood is, there the fire goeth out: so where there is no talebearer, the strife ceaseth.

          With few exceptions in American history, we’ve been dragged into wars and all their concomitant lawlessness by harum-scarum. Iraq War, sovereign case in point. We could have wallpapered every square meter of Iraq with five dollar bills for all the money spent on chasing that losing bet. Waged entirely on the basis of a pack of lies.

          By all accounts, the Senate Select Intelligence Committee was aware of the deficiencies in the arguments for war. There’s John Kerry at the podium, saying he’d vote for the war — but there had goddamned well better be WMDs. Of course there weren’t any. Bush43 was never held to account for this failure, nor was Dick Cheney, who had circumvented the intelligence gathering process, nor was Colin Powell, who had promulgated it all before the UN, to the derision of every other intelligence gathering apparatus in every other nation.

          So when some turkey neck Senator has the effrontery to ask: “Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?”, he should remember who authorises money and mandate for that lethal force.Report

          • Avatar Michael Drew in reply to BlaiseP
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            says:

            And I should be clear: it is indeed problematic how the claim to be able to do what was done in the case of Awlaki pursuant to an armed conflict with Al Qaeda (or, those organizations who planned, carried out 9/11, etc…) intersects with the U.S. homeland. Does the administration clearly hold that that also authorizes such an act (in which case, there would not necessarily be any legal necessity that there be an imminent threat)? It’s not clear to me. But Sen. Paul’s question just didn’t get to that. The answer to the question he did pose is rather straightforward: under some circumstances, clearly the president can order lethal force to protect the country, even against a citizen inside the borders. The idea that he can is not even remotely novel. That’s what the president (via the VP) did on 9/11 wrt to any aircraft still in the sky after time X (when it was known that any still in the sky would be hostile). And that act is simply not controversial, or shouldn’t be.Report

            • Avatar BlaiseP in reply to Michael Drew
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              says:

              Awlaki was as much a Yemeni citizen as an American citizen. He was under indictment in the USA and under a death sentence in Yemen. This vastly complicates the rules of engagement.

              Awlaki would not be the first American citizen thus killed: several Americans fought for the Third Reich and died in combat. The question, it seems to me, is more than Awlaki’s constitutional rights. What of his enemy combatant status?

              Awlaki was allowed to say what he wanted in the United States and was not arrested. We know how the USA behaved towards Awlaki while he was on US soil. He was allowed to leave the country, where he formed up with an organisation declared to be a terrorist entity.

              Past performance is no guarantee of future results, as every prospectus always says somewhere in the fine print. But in putting those words in Holder’s mouth, saying “Not without getting the Senate Select Intelligence Committee involved” , I think the matter of oversight would have been sufficiently addressed.Report

          • Avatar James Hanley in reply to BlaiseP
            Ignored
            says:

            In specific cases, Congress has acted to restrain the warmaking powers of the Executive: it simply cuts off the funding for a war.

            Examples?Report

            • Avatar BlaiseP in reply to James Hanley
              Ignored
              says:

              Boland Amendment. Don’t make me do your homework, James.Report

              • Avatar James Hanley in reply to BlaiseP
                Ignored
                says:

                Oh, dear lord, Blaise, thank you so very very much. I was literally praying to agnostic god that you would walk not that trap.

                1. The Boland Amendment blocked funding for the Contras, not for a war that U.S. troops were openly fighting. That this is the only example that comes to mind underscores the absence of examples of Congress forcing a president’s hand on an open U.S. military conflict, such as Korea, Grenada, Libya, etc.

                2. The Boland Amendment was violated by the administration, leading to the Iran-Contra scandal. In consequence of that illegal activity, nobody was severely punished, the offending president was not impeached, and today is viewed by much of the public and legislative branch as a national hero.Report

              • Avatar BlaiseP in reply to James Hanley
                Ignored
                says:

                Heh. It’s GOP Evangelical Born-Again theology at work here: no matter how horrid the sin, no matter how disgusting the stain, there’s Pardon from On High for who will ask — and a New Life in Politics thereafter.Report

              • Avatar BlaiseP in reply to James Hanley
                Ignored
                says:

                Oh, Lord. Not this again. I said “cut off funding for a war”. You readily admit we were fighting a proxy war through the Contras — and the Boland Amendment cut off just such funding.

                Congress allows the President to wage pseudo-wars of this sort. It could demand oversight of funding such wars — and clearly has done so. Some homework for you:

                Cooper-Church amendment to the Foreign Military Sales Bill.
                H.J.Res. 636
                Public Law 93-148.Report

              • Avatar James Hanley in reply to BlaiseP
                Ignored
                says:

                Heh, nice try, Blaise. Carefully frame the issue so that you can claim to be technically correct, even though at that level your claim has absolutely no significance.

                And the Cooper-Church amendment was such a bold act of Congress that they didn’t pass it until most ground troops had been withdrawn. Effect? Zero.

                Congress has never had the cojones to seriously pull funding while the troops were in battle, because the public wouldn’t stand for it. And that’s the president’s wild card, how POTUS got nearly unlimited war power, and why Congress can’t get it back.Report

              • Avatar BlaiseP in reply to James Hanley
                Ignored
                says:

                That being the case, wherein lies your complaint? That Congress lacks the power to de-fund wars and thus act in restraint of the Executive? That much of your argument has been demolished. You were given your examples, the answers to your obtuse questions. Be content with them. I have amply demonstrated such powers reside in Congress.Report

              • Avatar Michael Drew in reply to James Hanley
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                says:

                But it is about cojones to use the means, not whether the means are potentially there to use?Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                Michael, yes and no. There’s what’s constitutionally allowable and then there’s what’s politically possible. Say Congress did cut off funding, and the overwhelming majority of those who voted for the cutoff lost in the next election because their opponents bleated that they were unpatriotic, didn’t support the troops and had helped the enemy. The new Congress then votes money for the war.

                Are the means really there? Formally they are, but are they there in any meaningful, effective sense?Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                Blaise,

                Oh, please, can’t you just for once give up on trying to save your hypothesis by making increasingly hollow claims to have won? You’ve demolished nothing because you’ve wholly failed to show how Congress has ever effectively constrained the president, and whether they had the constitutional power was never the real question.

                You only claim my questions were obtuse because they revealed the emptiness of your claim, so in the absence of being able to demonstrate that Congress has ever really been able to constrain the president’s war making power you fall back on criticizing the questions and declaring victory. It’s pathetically obvious face saving, and it doesn’t work. Just show me that Congress has effectively managed to force a president to pull U.S. troops from a war theater or give it up.

                I’ll not be responding to any more of your silly BS today.Report

              • Avatar Michael Drew in reply to James Hanley
                Ignored
                says:

                As I said in our previous discussion on this topic, James, with every subsequent explanation from you, from my perspective it becomes clearer that we both think that the same thing is the case, despite your commitment to the notion that I believe it was Morat and I were gravely mistaken on some truly substantive question, not just on the way we initially described the situation (which if I recall correctly was to say that it’s politics that determines that the available means aren’t used, or aren’t used effectively, not an actual lack of means to use).

                If the means are used and then politics asserts itself in such a way as to cause that use to be discontinued, that’s still not a lack of means or a demonstration of their certain inefficacy. It’s politics determining that their use not be sustained and assertive used with enough to be effective.Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                Sorry, MD, you lost me completely.Report

              • Avatar Michael Drew in reply to James Hanley
                Ignored
                says:

                No problem. We talked about whether it was politics that kept Congress from using whatever means it has to restrain Executive warmaking powers. You said hell no, the reason there isn’t a check on that from Congress is that they lack the effective means. I said they may lack the effective means, but they do have some means, and they’re not using even those, so that shows the actual constraint in operation at this time is that the politics don’t dictate or dictate against their use. It seems to me you’ve pretty much agreed with that with everything you’ve said to show that they (also) lack effective means. The means are ineffective because the politics makes them ineffective. But that just means that the politics are the constraint. The means are formally available, and could be effective if the politics were different.Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                I don’t remember the argument clearly, but as phrased there, I’m inclined to think perhaps I misunderstood your use of politics. Perhaps I thought you meant just partisan politics, rather than representative-constituency politics? Or perhaps I was not clear in explaining what I meant?

                Because I can assure you that I have for a goodly number of years now believed that while Congress indeed has authority to stop a president from going to war they could not exercise that authority without a huge blowback at the ballot box.Report

              • Avatar Michael Drew in reply to James Hanley
                Ignored
                says:

                Wow, I’m surprised you don’t remember. You expressed considerable frustration with me for suggesting that we really were both saying basically the same thing. I’m sure I’m missing some element of how I initially presented my view that set off your FUNDAMENTAL ERROR alarm.

                The basic point was that to you it’s significant that the politics render what means they have *ineffective*, while to me that just means that the politics are determining the behavior. Also that the politics are largely institutionally determined, so in some sense the institutions themselves determine the lack of a check between them. And the latter is a fair point, but I questioned whether it was a truth completely impervious to substantive changes in political attitudes about war, etc.Report

        • Avatar James Hanley in reply to Michael Drew
          Ignored
          says:

          Actually, Congress can’t take them back because they don’t stem from Congress,

          Bingo.Report

    • Nob Akimoto Nob Akimoto in reply to James Hanley
      Ignored
      says:

      I think you are simply wrong that POTUS hasn’t claimed authority to execute an American citizen on U.S. soil without benefit of trial.

      Please indicate where in Holder or Brennan’s response such a claim has been made. I simply cannot find any justification for making that leap other than hyperbolic ramblings.

      The claim was that lethal force is only applicable in extraordinarily hypotheticals rising to the levels of imminence and threat as a sneak attack on US soil and hijacking of US airliners to use as weapons of war.

      I would argue that constraints on executive power and remaining a free country are much more importantly argued and corrected on a local, law enforcement level, which have more substantial consequences for far more people. I think at this point the level of scrutiny required to effectively condemn and bust cops for killing people has risen to the point where they are operating beyond the constraints of any constitutional restrictions.Report

      • Avatar James Hanley in reply to Nob Akimoto
        Ignored
        says:

        First, it was in Holder’s “extraordinary circumstances” statement. It’s a claim of legal authority, just coupled with an assurance they won’t abuse the authority. It’s also not the first time Holder has made the claim. Finally, you’re being very legalistic in wanting a precise claim, whereas I’m saying look at the bigger picture: how executive power has been growing nearly unchecked for a century; how presidents are now nearly unchecked in war; and how the battlefield in the war on terror has been defined to include the mainland U.S. You want to niggle about precise legal terminology, and I’m saying put the puzzle pieces together. Every president since FDR has expanded executive power with the brief interregnum of Ford/Carter, neither of whom managed to actually roll it back. It has been a one-way ratchet. Even if we can sustain the claim that Obama has not actually claimed this authority, he has taken yet another step toward it, opening the door for a successor–probably one in the near-term, since we all know this is “the long war,” the blessed event that ensures permanent justification of he national security state.

        As to cops vs. the federal government, I think you are very wrong in two ways. First, we probably constrain the cops better now than at any point in history. Like school shootings, police abuses only seem worse now because they are more likely to be brought to light. Once upon a time the police were effectively unquestionable, and so were de facto unaccountable.

        And ultimately nothing is more terrifying than a dictatorship.Report

        • Avatar Michael Drew in reply to James Hanley
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          says:

          But it’s completely unremarkable and not novel at all that some such circumstances are conceivable. What you say about the expansion of war powers and the definition of the battlefield in the WoT is entirely true, but neither Paul’s question nor Holder’s response has anything to do with those things. To get at that, Paul needed to have been more specific and legalistic that he was, precisely what you criticize Nob for doing here.Report

          • Avatar Jaybird in reply to Michael Drew
            Ignored
            says:

            When I said that I wanted the overly militarized police to stop using SWAT so goddamn much, this wasn’t what I was talking about.Report

          • Avatar James Hanley in reply to Michael Drew
            Ignored
            says:

            neither Paul’s question nor Holder’s response has anything to do with those things.

            I disagree. That’s the context that makes the question and response so crucial. This issue is not simply an unusual blip in executive power that is likely to go away soon (like Lincoln’s suspension of habeus corpus was, for example). It is one more in a now very long sequence of steps towards unlimited executive power. At each step along the way there have been plenty of intelligent and well-meaning people earnestly explaining to us that it really wasn’t a big step, that it was well within the president’s constitutional authority, and that we could trust our president not to abuse the authority. And we’ve been foolish enough to swallow it every small step of the way. But small steps ultimately create a long journey.Report

            • Avatar Michael Drew in reply to James Hanley
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              says:

              Is it or is it not a commonplace understanding of presidential powers under the Constitution that he has powers to protect the country using the military against real security threats from outside the country, including, should the situation arise, from people who are citizens who have re-entered the country and after conspiring with outside forces to attack us and are in the midst of carrying out such an attack?Report

              • Avatar James Hanley in reply to Michael Drew
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                says:

                I would say not. The use of the military internally has always been seen as dubious. The Founders objected to it because of their experiences that led to their rebelling, and it’s why they objected to a standing army. Yes, Wahington and the Whiskey Rebellion, but that was a pretty sketchy move, and can be justified only on the grounds that we lacked a proper police force to deal with the problem.

                And as it happens, our police forces and judicial system have been dealing with in-country terrorism just fine.Report

              • Avatar Michael Drew in reply to James Hanley
                Ignored
                says:

                I would say that when push comes to shove, as it did on 9/11, the idea that the president has these powers when the country is under clear threat that law enforcement can’t counter (no PD has F-16s), it is flat-out uncontroversial that the president has power to use force to repel attack. As a final matter, that’s why we have a military. And it’s not difficult to imagine a situation in which someone in such an attacking force has American citizenship.

                Even if there is squeamishness about that point, it’s the furthest thing from a “step” toward expansion of presidential war powers to not deny under pointed prodding from someone trying to get you to acknowledge it that such powers exist. At some final point, the power of the president to use the military to defend the country against an attack involving U.S. citizens that has reached shore, which is a conceivable though not likely thing, exists. It’s not novel to think that it does. What do countries finally have militaries (whether standing or reserve) for, anyway?Report

              • Avatar PrometheeFeu in reply to Michael Drew
                Ignored
                says:

                No problem, as long as the United States is willing to accept post-hoc judicial review of its actions and people are willing to go to jail if the decisions they made were not legal. (i.e. they shoot at a guy because he looks shifty)Report

              • Avatar Michael Drew in reply to PrometheeFeu
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                says:

                I mean, I don’t think any administration will ever say they think judicial review of such decisions are appropriate, no matter whether we are or are not willing to say that the powers exist. Those things are separate. The power exists under the constitution or it doesn’t, and then decisions made pursuant to that power (if it exists) are reviewable by courts, or they’re not. We the people, each administration, Congress, etc. each have the freedom and responsibility to have positions on each of those questions separately. Thinking something about one of them doesn’t mean any of those people or bodies have to have a particular position on the other one. We’re all just either right or wrong on each. And finally, it’s up to the courts what is or isn’t reviewable by the courts.Report

              • Avatar PrometheeFeu in reply to PrometheeFeu
                Ignored
                says:

                @Michael Drew

                I don’t think you can separate the power from whether it is subject to judicial review or not. Consider the example given in the OP of LEOs firing their weapons. The fact that LEOs can be held liable post-hoc for the way in which they can fire their weapons acts as a significant constraint on their power. If their decision to shoot was not subject to review, their power would be much greater.Report

              • Avatar Michael Drew in reply to PrometheeFeu
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                says:

                It doesn’t demonstrate that the power of the president to use lethal force to repel attacks (even in the U.S. against citizens aligned with outside attacking forces once the attacks have reached shore) must be judicially reviewable just to say that if it’s not judicially reviewable, then it’s a greater and less accountable power than domestic law enforcement has regarding its license to use force in the course of enforcing the law. It might just be a greater and less accountable power than that.

                I personally am fine if courts want to try to review uses of that power, ex-post or ex-ante. So, I think the power is reviewable, but no opinion of mine (or yours) is going to make it in fact reviewed. The courts will decide what actions by the executive they will review. And that really doesn’t affect whether the power we’re discussing exists. You either thunk it does, or you think it doesn’t. And then actions pursuant to it are either reviewed for being in keeping with whatever limitations there are on that power, or they’re not.

                I’m not saying there aren’t consequences if the facts in the world are that (the courts say that) the power exists under the constitution, and that they are unlikely to review actions taken pursuant to it. There are. I’m just saying that whether (the courts say that) the power exists doesn’t actually depend on whether (they say that) actions taken pursuant to that power are likely to be reviewed.

                That being said, perhaps I misconstrued your initial condition on accepting that this power exists. You say you accept this “as long as the United States is willing to accept post-hoc judicial review of its actions and people.” If by this you mean the government accepting any decisions of U.S. courts to review these actions that do come down, then I think that acceptance is in place. The U.S. government as a blanket matter accepts the judgements of U.S. courts.Report

        • Avatar Bob2 in reply to James Hanley
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          says:

          So this is why SWAT teams have tanks?Report

          • Avatar Stillwater in reply to Bob2
            Ignored
            says:

            That’s different. SWAT has tanks to minimize risk. Suppose a residence (mistakenly) identified for a no-knock raid is (mistakenly) believed to have a dog inside. What do you do? Send the guys in knowing they may get bit before one of them can shoot the dog? It’s just a whole lot safer to gain entry by blowing a whole thru the front door with a tank than have individual police officers accept additional personal risks.Report

      • Avatar Ethan Gach in reply to Nob Akimoto
        Ignored
        says:

        As part of the Federal government, that would fall to state legislatures rather than a Kentuck Senator.Report

      • Avatar PrometheeFeu in reply to Nob Akimoto
        Ignored
        says:

        The leaked white paper lists the following sufficient conditions for when the white house considers acceptable the extra-judicial killing of a US person:

        “(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible-and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles.”

        None of these criteria preclude that such a operation be carried out on US soil.Report

        • Avatar Michael Drew in reply to PrometheeFeu
          Ignored
          says:

          They don’t, it’s true. So then the question is whether they are wrong to not to do so. Does Article II not give the president power to authorize the use of lethal force in the U.S. against a U.S. person who poses an imminent threat of violent attack in order to prevent that threat from being realized into an actual attack – when or where a capture attempt that would prevent the attack is infeasible?

          If their understanding of imminence or feasibility of capture is defective, then their understanding of when this force can be authorized in practice is likewise defective. But as a principle, under a correct understanding of imminence and feasibility of capture, is it wrong for them to believe the president has this power?Report

          • Avatar PrometheeFeu in reply to Michael Drew
            Ignored
            says:

            “If their understanding of imminence or feasibility of capture is defective, then their understanding of when this force can be authorized in practice is likewise defective. But as a principle, under a correct understanding of imminence and feasibility of capture, is it wrong for them to believe the president has this power?”

            I do think the executive can use force (up to an including lethal force) without ex ante judicial review but it requires an imminent threat, that the least possible force be used (prefer capture to minor injury to major injury to death) and finally that the force used be proportional to the threat. (Killing somebody who is planning to steal an apple is not acceptable even if there is no other way to stop them) And of course, this should be subject to post-hoc judicial review.

            So we could say that in principle the test articulated in the white paper is acceptable (it covers a more narrow set of circumstances than I do in the last paragraph) if imminence and feasibility of capture are correctly defined. (The balancing test is inherent in the fact that we are dealing with terrorists who wish to inflict significant loss of life.) But at the end of the day, the definitions of imminence and feasibility of capture do all the heavy lifting in the test, so I don’t see how you can agree in principle with the test and disagree with the definitions of those terms.Report

            • Nob Akimoto Nob Akimoto in reply to PrometheeFeu
              Ignored
              says:

              Congress could probably do us a great favor by defining imminence and feasibility of capture into law, actually. They can agree that the President has the power under Article II, then base their legislative arguments on capability and consistency with applicable common law precedent.Report

              • Avatar Glyph in reply to Nob Akimoto
                Ignored
                says:

                I dunno, that sounds like work, all that “defining” and “agreeing” and “basing” of “arguments”…I’m skeptical they’ve got it in them.Report

              • Avatar PrometheeFeu in reply to Nob Akimoto
                Ignored
                says:

                That could help. But at the end of the day, the question is for SCOTUS. Basically, we are dealing with 2 questions:

                1) Who can Congress declare war against? (I maintain that war is traditionally understood as being between sovereigns which AQ is not)

                2) Under what conditions does the due process clause allow force to be used without actually having due process?Report

              • Nob Akimoto Nob Akimoto in reply to PrometheeFeu
                Ignored
                says:

                I think 2 actually has an additional component.

                Which is specifically:
                Under what conditions does the due process clause allow non-judicial (ie executive) due process as sufficient condition for the use of force.

                In common law systems, there’s been substantially more leeway given to the executive (thinking the Northern Ireland cases with the Secretary of State for something or the other that the UK had as cases). But I really do need to look at this again.Report

              • Avatar PrometheeFeu in reply to Nob Akimoto
                Ignored
                says:

                I think that “executive due process” is best understood as not due process at all, but merely a decision process internal to the executive. The appropriate test would be whether the executive had sufficient basis to act as it did.Report

              • Nob Akimoto Nob Akimoto in reply to PrometheeFeu
                Ignored
                says:

                It’s been a while since I looked at the procedural due process literature, but I was under the impression that the 5th amendment jurisprudence didn’t require a full blown judicial trial to satisfy the procedural due process requirement. Am I mistaken here?

                I’m also a bit hazy on how substantive due process overlaps with the procedural.Report

        • Avatar James Hanley in reply to PrometheeFeu
          Ignored
          says:

          Agreed with PometheeFeu, but let me take another line of critique

          Al Awlaki may truly have been a terrorist, but did he pose an imminent threat of violent attack? By all accounts I’ve seen, no.

          So if the administration has, as I think they have, already violated those standards, why is anyone making an argument that relies on the assumption that they’ll not violate them in the future, much less rely on a stricter interpretation than the plain words demand?Report

      • Avatar Jim Heffman in reply to Nob Akimoto
        Ignored
        says:

        “Please indicate where in Holder or Brennan’s response such a claim has been made. ”

        Well, they didn’t say that there wouldn’t be a circumstance where they didn’t not want to avoid not killing someone.Report

  5. Avatar Ethan Gach
    Ignored
    says:

    “I get that targeted killing policy is unpopular with civil libertarians. I’ll even go a step further and say that the Obama Administration has not done a good job of articulating and clarifying its position.”

    Everything comes back to this. Your characterization here is gross. “Unpopular” with civil libertarians makes it seem like some pet issue or academic question. As I said before, if YOU like the policy and where its trending, that’s fine, but don’t dismiss other people’s concerns just because you don’t share them. Dismiss them on the merits–rather than armchair psychologizing about drones and why it throws people into a tizzy.

    The entire problem IS that “the Obama Administration has not done a good job of articulating and clarifying its position.”

    Rand Paul’s political theater is precisely to FORCE his hand in being more transparent and clear on this point. As Rand made clear over and over again, we can’t have the discussion if we don’t know what the State is maintaining in it. It’s not JUST that Obama et al have done a poor job of clarifying the policy: they have sought to mislead and obfuscate at EVERY TURN.

    So we can’t start discussing whether what the government is doing is: good/bad, legal/illegal, politically supported/unsupported until we know exactly what they’re doing and what they think they can do.

    The point of the grandstanding isn’t to “push the needle” in the public discourse: it’s to get the facts on the table so we can even begin. And that’s why hyperbole and grandstanding aren’t only fair game, they’re the only game. We don’t give the state the benefit of the doubt when it comes to killing, at least we shouldn’t–and so bohoo for the Administration if Senators aren’t waiting in line, sticking to the “known facts” and playing along.

    The rest is just unabashed concern trolling.Report

    • Avatar Roger in reply to Ethan Gach
      Ignored
      says:

      I agree with Ethan.Report

    • Avatar James Hanley in reply to Ethan Gach
      Ignored
      says:

      Great response, Ethan.

      I’d just add that Nob’s claim that, “I get that targeted killing policy is unpopular with civil libertarians. I’ll even go a step further and say that the Obama Administration has not done a good job of articulating and clarifying its position”, reminds me of Tod’s posts about the GOP not getting that it’s not just their messaging, but the actual message.Report

    • Avatar Marchmaine in reply to Ethan Gach
      Ignored
      says:

      Well put.Report

    • Nob Akimoto Nob Akimoto in reply to Ethan Gach
      Ignored
      says:

      So lying your ass off and completely fabricating hypotheticals with hyperbole is legitimate so long as it’s for a goal you agree with?

      Does accuracy in a debate actually matter? Or does scoring cheap rhetorical points matter more?

      As for arguing on the merits, I have, more than anyone on this site, tried to make arguments on the merits of the Administration’s counter-terrorism policy more generally, and even on the drone policy itself.
      https://ordinary-times.com/blog/2013/01/nominations-towards-normalcy/
      https://ordinary-times.com/blog/2012/10/brennans-world-drones-and-future-administrations/
      https://ordinary-times.com/blog/2012/05/the-morally-degenerate-sociopaths-defense-of-counter-terrorism/
      https://ordinary-times.com/blog/2012/10/sketching-a-national-security-state-saner-than-today/
      https://ordinary-times.com/blog/2012/09/resistance-is-futile-our-culture-will-adapt/
      https://ordinary-times.com/blog/2013/02/john-yoo-making-sure-he-remains-a-parody-of-himself/

      I don’t like to argue from authority, but the only people who think the Administration have actually been “obfuscating at every turn” are people who either have an axe to grind with any sort of intervention in foreign policy short of pacifism (ie Greenwald) or are deliberately misconstruing the Administration’s arguments to score political points (Paul).

      Even John fucking Yoo, no friend of this Administration in any sense of the term, has had sufficient cause to argue on the merits of their policies and suggest that the problem isn’t enough due process, but it’s too much of it on the battlefield.

      Elsewhere, Wittes, Goldsmith, Chesney, Bollinger, Vladeck, &c have criticisms about the policies themselves, and a hope for more congressional involvement, but they have not called the Administration’s way of explaining their legal justifications or logic particularly obfuscated or obtuse.Report

      • Avatar Jaybird in reply to Nob Akimoto
        Ignored
        says:

        Even John fucking Yoo, no friend of this Administration in any sense of the term, has had sufficient cause to argue on the merits of their policies and suggest that the problem isn’t enough due process, but it’s too much of it on the battlefield.

        Not to get all ad hominem but it’s possible to see “John fucking Yoo agrees with me!” as a warning sign.

        But, if you wish to stay on this course, you can use this article the next time you wish to argue for Obama’s drone policy:

        http://thehill.com/video/in-the-news/282439-cheney-defends-obama-on-drone-strikesReport

        • Nob Akimoto Nob Akimoto in reply to Jaybird
          Ignored
          says:

          Fuck you, Jaybird.

          The hypothetical about whether I’d kill Baby Rand Paul was bad enough.

          Mischaracterizing my actual arguments as being agreement with John Yoo on the merits of policy is a step too far.

          For fuck’s sake.Report

          • Nob Akimoto Nob Akimoto in reply to Nob Akimoto
            Ignored
            says:

            I’m going to let this statement stand, to show that I did in fact say it.

            But I am going to say that I owe you an apology.

            I let my frustration get the better of me.Report

            • Avatar Jaybird in reply to Nob Akimoto
              Ignored
              says:

              Dude, just continue to be honest. That’s the most important thing. No apology necessary if you’re doing that.

              That said, when I look at this situation, I see Rand Paul’s grandstanding as something that is not particularly pointless and, instead of misleading, illuminating. There are a lot of things bubbling up.

              These things are very, very interesting and, much like we saw Bush’s policies evolve into Obama’s, we’re going to see Obama’s evolve into the next guy’s.

              I’d really rather Rand Paul’s grandstanding be part of what determines the path of that evolution.

              I certainly don’t see him as part of the problem.Report

              • Nob Akimoto Nob Akimoto in reply to Jaybird
                Ignored
                says:

                From Dick Durbin’s reaction it appears the Democrats are going to try to cut left on this one and try to be even more outspoken than Paul, which I would be pleased with.

                Please understand that I’m not a huge fan of the current regime. I don’t think it’s as bad as some of you make it out to be, and think tweaks around the edges can do just as much to fix it. I thought that Brennan would be an obvious improvement to Petraeus, for example. And I really do hope whoever ends up replacing Holder will be to his left on the issue. SOmeone like a Harold Koh.Report

      • Avatar James Hanley in reply to Nob Akimoto
        Ignored
        says:

        As for arguing on the merits, I have, more than anyone on this site, tried to make arguments on the merits of the Administration’s counter-terrorism policy more generally, and even on the drone policy itself.

        Yes, and I have consistently been disturbed by this. You have done a great job articulating why X is technically legal, while consistently choosing not to look at the bigger picture of the trajectory of executive power or how the WOT opens the door for indefinite expansions of that power. You are being the perfect technocrat, looking only at the next step, never looking back at the ground that’s been covered, or at the map, to see where the oath we are traversing leads.

        Nob, I am regularly soundly impressed by how intelligent you are and how widely read you are, so this is the farthest thing from a general criticism of you. I have great admiration for you. But none of us are well read in everything, and I think you are not well-read on the presidency. The more I have studied it, the more it’s trajectory chills me. And one of the most chilling aspects of it is how easy it is to justify, with technical precision, each further step the presidency takes.Report

        • Nob Akimoto Nob Akimoto in reply to James Hanley
          Ignored
          says:

          I do wonder if some of my studying on the subject have actually made me more blaze on this subject than I should be. For the record I have serious reservations about the War Powers Act, and I would much sooner prefer to have an ex-ante form of judicial review on targeting. I’m also, in all honesty unsure how much of the executive power grab is a result of Presidential power, and how much of it is the state writ large. The more I’ve studied national security policy and law, the more it appears to me that the US GOVERNMENT as an entity is substantially larger and more complicated than merely the office of the Presidency.

          I’m fully aware that I am probably being obsessively technocratic here…and I’m thinking of how I might combat that.Report

          • Avatar Glyph in reply to Nob Akimoto
            Ignored
            says:

            Nob, as you know I’m one of the guys who, like James, has tended at this issue very much from the other side, and I just wanted to let you know that I have very much appreciated your thorough, patient and articulate explanations of other viewpoints – even if I don’t ultimately agree, I never have doubt that you are attempting to view and present the situation realistically, and suggest improvements where you think them possible (= your post that had suggestions about how to instantiate better judicial review/some semblance of due process).

            I know it can be no fun to feel like you are getting piled on, so I wanted to echo James’ praise; and your willingness to self-reflect is admirable. Thanks.Report

          • Avatar James Hanley in reply to Nob Akimoto
            Ignored
            says:

            the US GOVERNMENT as an entity is substantially larger and more complicated than merely the office of the Presidency.

            Yes, it is. But the growth is dominantly in the executive branch–because to a large extent, the bureaucracy is the state, and control over the executive branch has moved more completely into the president’s hands. That is easily defensible, given that the prez is the head of the executive branch, but the practical effect has been to badly undermine congressional checks on the executive.

            There’s a lot of factors at play here, and it would take a series of posts to draw them all out. But in short there is a body of theory that grew in the kate 19th/early 20th century that supports a dominant executive (in contrast to the Framers’ understanding that the House would be the mainspring of government), the on-going shift of powers from the legislative and executive branches to the executive branch (including budgeting, war-initiating, de facto legislating and treaty-making, and under Bush/Obama judicial powers such as determination of warrants and who may get into the courts to sue the government), and the freeing of presidents from congressional and party constraints consequent to the evolution of the primary selection system.

            The Framers made an error in their separation of powers doctrine, although it’s an understandable error given their temporal position. But it’s now clear, I think, that the only effective way to constrain the executive is in fact to lodge it within the legislative. The only thing the got right was the independent judiciary, but even that has become less of a check on the president as an ever larger number of SupCt justices come to the bench through executive branch service, and ever fewer have any legislative branch background, so that they are far more attuned and sympathetic to the executive branch than in times past.Report

            • Avatar Jim Heffman in reply to James Hanley
              Ignored
              says:

              “the on-going shift of powers from the legislative and executive branches to the executive branch (including budgeting, war-initiating, de facto legislating and treaty-making, and under Bush/Obama judicial powers such as determination of warrants and who may get into the courts to sue the government)…”

              Yes; this is something I’ve noted elsewhere. More and more of the government decisions that actually affect citizens on a daily-life basis are made by the regulatory bureaucracy–which is in the Executive branch, not the Legislative, and the only part of the Executive that gets elected is the President. If a Senator says something rude about women, we can unelect him and get someone else. If someone from the DOT decides that using cell phones in cars annoys him, then nobody in the USA can use cell phones in cars, anywhere, for any reason, right away, and there is no way that citizens can influence his decision or pick someone else for his role.Report

            • Nob Akimoto Nob Akimoto in reply to James Hanley
              Ignored
              says:

              Coming from a country with a rather substantial bureaucratic apparatus independent of any branch of government, I’m not entirely sure how a national security apparatus with an executive embedded in the legislature would work. I’m rather afraid it’d end up like the British Civil Service in a way that would be detrimental to oversight.Report

              • Avatar James Hanley in reply to Nob Akimoto
                Ignored
                says:

                Well, here I’m speaking of the executive branch in general. I think it’s an open question as to whether there us any way at all to situate a national security apparatus so that it is truly accountable, given how much its activities depend on secrecy. But I won’t pretend to any sort of expertise on that issue.Report

              • Avatar Kim in reply to James Hanley
                Ignored
                says:

                *dons libertarian hat* Wikileaks seems to be one way of dealing with it.
                More broadly our instutitional protections on the 4th Estate.Report

              • Nob Akimoto Nob Akimoto in reply to James Hanley
                Ignored
                says:

                I think there’s some ways to make it more difficult for certain BRANCHES of the national security apparatus to operate, but perhaps not possible to wholly tame it.

                For example an interesting quirk of pre-Depot system British military policy was that Horse Guards/the Army wasn’t allowed to conscript or even appropriate militia resources, while the Navy was allowed to impress sailors into service. This effectively meant that the size of peacetime standing army was constrained by volunteer enlistments and therefore tended to be undermanned and not fully capable of discharging all of its territorial requirements. I’d imagine you could have done something within the Constitution to make a standing army difficult, but make say a naval force easier to maintain and change force composition in a way to make militarism more difficult.Report

      • Avatar Ethan Gach in reply to Nob Akimoto
        Ignored
        says:

        What is Greenwald’s “ax to grind,” or Conor’s?

        And what does that have to do with their arguments on this issue? Do you not feel the Admin has failed to be transparent at every opportunity? It’s one thing to argue that they should be secretive on all of these things, but quite another to say that they have actively tried not to be, but just failed, kinda, sorta.

        The Admin, as you well know, still keeps it’s legal justification secret, and has not invited hashing it out in the courts, or public discourse.

        As for accuracy and hyperbole–I see any potential harm caused by Paul’s rhetorical tact as being far outwayed by the potential good; making people more afraid of potential abuse and potentially illegal violence vs. getting the admin to put their cards on the table and come clean.

        If you want to aruge in support of the admin, than you should have just linked to your previous work in the post and made it clear that’s what you were doing, or perhaps insert a brief description of your view on it, rather than just derride critics for being critics of something you don’t see as being worthy of that level of criticism.Report

        • Nob Akimoto Nob Akimoto in reply to Ethan Gach
          Ignored
          says:

          I thought I made it clear in my sentence, if it wasn’t reworded:
          I feel that Greenwald appears to think the only acceptable form of foreign policy is essentially active anti-intervention, as in not exercising US power in ANY form at any point. From everything I’ve read he seems to believe there’s no potential justifiable use of force at all. (Of course he then turns around and lambasts Susan Rice for inaction re: Rwanda, so I guess the consistency is that no American official can ever do anything right)

          I feel that the Administration has to some extent been self-defeating with certain obfuscations of policy while using policy speeches and legal journal pieces and analysis to justify their legal positions.Report

          • Avatar Ethan Gach in reply to Nob Akimoto
            Ignored
            says:

            “Ax to grind,” implies that Greenwald has a grudge against the Admin, and his arguments are motivated by other things. e.i. he’s arguing in bad faith.

            Why does an argument about the Admin’s transparency on targeted killings have to travel so far afield into what Greenwald thinks about intervention in general?

            What are their legal positions on the topic of targeted killings? Do you know? Where did you discover it?Report

            • Avatar Shazbot3 in reply to Ethan Gach
              Ignored
              says:

              I think “ax to grind” is the wrong colloquialism. Nob seems to mean “hobby horse” or something like that. Though people do now use “ax to grind”, not as a synonym for “has a grudge” but as a way of saying “has one argument that they won’t give up on and repeat ad nauseam as a kind of way of scoring cheap political points or making themselves famous or selling books instead of furthering the issue.”

              I’m not sure that Greenwald does this, but Nob is right that Greenwald would have to be a hardcore pacifist of some sort to consistently maintain his principles, and no Commander in Chief, elected by Americans, impeachable by Congress, could be as pacifist as Greenwald. Obama could be and should be more pacifist, but Greenwald should realize there are limits to how pacifist any US leader will be.

              IMO, anyway.Report

  6. Avatar Kim
    Ignored
    says:

    So, let me get this straight…
    This man votes for a Presidential candidate who has assassins on tap…
    And then has the gall to complain about our current president
    asserting the license to kill someone on American soil?

    Mr. Paul: Is it only wrong if the President is using government dollars?Report

  7. Avatar Tod Kelly
    Ignored
    says:

    My sense from your post is that political theater is somehow a lesser and ineffective thing. If so, i think you are incorrect.

    My observation over the years is that political theater is what brings change about. Sit ins, marches on Washington, rallies, inspirational speeches – these things are all political theater. I see them as far more effective as agents of change than, say, white papers.Report

  8. Avatar Fnord
    Ignored
    says:

    Regardless of how people want to interpret the question as being solely about targeted killing policy regarding the war on terror, Holder clearly interpreted it as whether or not there is a legal right for the President to employ lethal force within the United States in SOME circumstances.

    Do you really think Eric Holder was honestly confused about what the question was?Report

    • Nob Akimoto Nob Akimoto in reply to Fnord
      Ignored
      says:

      I think being Attorney General and a trained attorney, he was likely being very careful with how he phrased it to preclude it being turned into a blanket condemnation of lethal force absent judicial pre-clearance.Report

      • Avatar Michelle Togut in reply to Nob Akimoto
        Ignored
        says:

        Yes. It’s one of the first things they teach you in law school–the many ways to say “it depends” so that you can never be pinned down for taking an exact position.Report

      • Avatar Fnord in reply to Nob Akimoto
        Ignored
        says:

        At the very minimum, he could have stated the principle that military force can only be legally used when law enforcement authorities are incapable of incapacitating the threat, instead of the mealy-mouthed “as a policy matter” dodge.

        Unless that’s not the administration’s position, and that he actually believes the president is legally allowed to use military force even when law enforcement would be sufficient, and they merely choose, for policy reasons, not to do so.Report

  9. Avatar Jaybird
    Ignored
    says:

    Once upon a time, a million years ago, before the election, I remember many concern trolls being told “quit bitching about drones, Romney would be worse, we’ll talk about drones after Obama wins the election.”

    I honestly expected the post-election drone discussion to be different.Report

  10. Avatar James Hanley
    Ignored
    says:

    Well, Nob, you’ve certainly mastered the art of writing posts that will evok comment!Report

  11. Avatar Pub Editor
    Ignored
    says:

    Some time ago, Corey Robin had a post (“Ron Paul has two problems: one is his, the other is ours”) tackling the question of why, in spite of the racist newsletters and his stance on the 1964 Civil Rights Act, etc., many civil libertarians and even some self-described progressives seemed enchanted with the Texas congressman. Basically, people were listening to Ron Paul because no one else of comparable visibility was even attempting to take their concerns seriously. Says Robin:

    Our problem—and again by “our” I mean a left that’s social democratic (or welfare state liberal or economically progressive or whatever the hell you want to call it) and anti-imperial—is that we don’t really have a vigorous national spokesperson for the issues of war and peace, an end to empire, a challenge to Israel, and so forth, that Paul has in fact been articulating. The source of Paul’s positions on these issues are not the same as ours (again more reason not to give him our support). But he is talking about these issues, often in surprisingly blunt and challenging terms. Would that we had someone on our side who could make the case against an American empire, or American supremacy, in such a pungent way.

    This, it’s clear, is why people like Glenn Greenwald say that Paul’s voice needs to be heard. Not, Greenwald makes clear, because he supports Paul, but because it is a terrible comment—a shanda for the left—that we don’t have anyone on our side of comparable visibility launching an attack on American imperialism and warfare. …

    Much the same could be said for the son.

    Yes indeed, “targeted killing policy is unpopular with civil libertarians.” And it is important to understand how isolated and/or marginalized (many) civil libertarians feel when it comes to targeted killing and the whole constellation of WoT topics. The White House ignores them, the Courts do nothing, and cable news treats their concerns as fringe or ridiculous. Most of Congress ignores them as well. In this context, Rand Paul’s filibuster (whatever its faults or gaps) is water in the desert.

    Also, I agree with just about everything that Ethan Gach and Dr. Russell say upthread.Report

  12. Avatar KatherineMW
    Ignored
    says:

    Cross-posting from Russell’s blog:

    Cops killing suspects is a serious issue, and warrants much more serious investigations and punishments than are generally applied. But that is not the same as the drone program, because there is at least the theoretical possibility of the person being perceived as an immediate threat by the person taking the shot. The drones, contrary to your “9/11” comparison, are not being used against people who present an immediate threat.

    Deliberate targeting killings of people is something entirely different; deliberate targeting killings of citizens – with no oversight, to boot – should be a very serious constitutional issue, due to it being government-authorized execution of people without due process. The government isn’t ordering cops to shoot suspects, so when the cops do so needlessly the onus is on them, not the government – and on the government to investigate and punish as necessary. It’s two completely different issues.

    A lot of the things that have happened over the past 12 years would have been “crazy hypotheticals” pre-9/11. It’s important to put the administration on the spot with regards to exactly how far it thinks its authority extends. As we saw from the leaked document on the targeting killing policy, “imminent” no longer has any meaning.Report

    • Avatar Patrick Cahalan in reply to KatherineMW
      Ignored
      says:

      Imminent is disjoined from meaning, because… like the enhanced interrogation problem, we don’t really want to define anything ahead of time.

      That way, whatever happens, we can do what we think is necessary and when we are called to carpet for it, well, we were all doing the best we could, for the country.

      Everybody is piss-scared of taking responsibility. That’s what I see, in the last 13 years. Nobody wants to sit down and say, “I did this, yes. Arrest me for it, and put me on trial, and I’ll defend my actions in a court of law, and a jury of my peers will find me innocent because they’ll see the rightness of my actions.”

      Probably because of Ken Starr. Nobody thinks they’d get a fair trial when the other team’s motivation is going to be to hang you for political points more than it is to get to the real truth.

      I miss, “The Buck Stops Here”. The buck doesn’t stop anywhere, any more.Report

    • Avatar Morat20 in reply to KatherineMW
      Ignored
      says:

      Replace “drones” with “cruise missiles” or “bombs”.

      Then go through the set of places we’ve used them, and determine legality.

      My problem with the whole drone debate is that in many places (not necessarily here) there are people objecting to the use of drones who would not object to the use of bombs in the same circumstances.

      Drones Are Different, for reasons I don’t grasp.

      Indeed, can the President bomb an American citizen on American soil is a pretty darn good question. The answer is, self-evidently, “Yes under very rare circumstances”.

      The Civil War being one. The fact that shooting down airliners that didn’t response to commands on 9/11 is another. (That we did not have to shoot one down does not mean we weren’t prepared to).

      Good questions are things like “What are those circumstances? And what remedies do we have if we feel you’ve been doing it in places we don’t like?”

      In a weird way, this whole drone debate feels like it’s really about the actual ‘Commander-in-Chief’ aspect of the Presidency. It’s like a whole lot of people are waking up and realizing that the military, you know, bombs people it considers the enemy. Like..anywhere they can reach them. And it’s reach has grown long indeed.

      And maybe we should go ahead and think about who we declare a military enemy a bit more nowReport

      • Avatar Tod Kelly in reply to Morat20
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        says:

        “My problem with the whole drone debate is that in many places (not necessarily here) there are people objecting to the use of drones who would not object to the use of bombs in the same circumstances.”

        Is this true? (Seriously, I don’t actually know.)

        I’m not a big military history guy, but my recollection from the 80s and 90s is that we wouldn’t fly over allied air space and drop bombs in allied countries – and certainly not on a regular basis. But I will be the first to admit that I may just be unaware of what we were actually doing.Report

        • Avatar Kim in reply to Tod Kelly
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          says:

          In the 2000s, many bombs were dropped in Occupied Airspace. Dunno if you want to call that within allied airspace though.Report

        • Avatar Morat20 in reply to Tod Kelly
          Ignored
          says:

          I guess part of it is drones fit somewhere between a smart bomb and a sniper’s bullet. And ‘allied air space’ is often (like Pakistan) “we want deniability, but here’s the info you wanted”.

          You get to this very interesting place where bombs become more like a knife in the dark, and less like massive explosions. (Not that drones are that precise, but you know what I mean).

          It turns people’s internal views of things askew, and you’re suddenly faced with questions like “Is it an assasination to kill an enemy’s general? What about the civilian leader that told the military to attack? What if it’s a bomb? A knife? A drugged drink? What’s the difference between ‘war’ and ‘killing’ and ‘assasination'”

          The whole assymetric warfare thing is another pickle. We’re using definitions and gut reactions and laws based on armies fighting armies to handle uniformed irregulars, and the tools we’re using have moved from bombs to smart bombs to drones.Report

      • Avatar Patrick Cahalan in reply to Morat20
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        says:

        This is a fair point; I exchanged emails with my brother yesterday and my main point was largely this: the question is “due process”, not “what we use to kill people”.

        But of course, actually reviewing due process in a meaningful way would require doing an awful lot of stuff to the way the police currently act.Report

        • Avatar Morat20 in reply to Patrick Cahalan
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          says:

          Well, that and the fact that Congress effectively (per SCOTUS even, I believe) declared war with the AUMF.

          Which means due process for selecting targets boils down to “Did the military determine this target is an enemy?”. (There’s a bit more. Rules of Engagement, stuff like the Geneva Conventions, the military’s own internal guidelines and ethics, etc. But in effect, that’s ‘due process’ in war.).

          Declaring war on AQ was probably a bad idea. Congress should, you know, probably amend that AUMF to put some stricter guards on it. Passing very broad authorizations to wield military force leads to places like this.

          I mean, best case, you have a President go “Holy Dumb Moves, Congress! You realize what I could do with this? Thankfully I shall restrict myself from accessing the full powers you have granted me.”. Which doesn’t mean he can’t do it. Just that he chooses not to.Report

          • Avatar Patrick Cahalan in reply to Morat20
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            says:

            Obama should have vetoed the 2012 NDAA.Report

          • Avatar Jaybird in reply to Morat20
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            says:

            Well, that and the fact that Congress effectively (per SCOTUS even, I believe) declared war with the AUMF.

            I’ve no doubt that, effectively, the congress declared war.

            My problem is that there are some silly little ritual things that go with declarations of war that didn’t go with the AUMF.

            For example: in a declared war, victory can be declared. More to the point, victory tends to be declared by someone (or a team of someones) who did not vote the original decision to declare war (e.g., the military).

            What would the equivalent of this for the AUMF look like? Who has the authority to declare victory?Report

            • Avatar Jim Heffman in reply to Jaybird
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              says:

              Also, this is the equivalent of Nixon ordering the USAF to bomb Viet Cong enclaves in Cambodia. (Or Clinton ordering cruise missile strikes against suspected al-Qaeda facilities in Afghanistan.)Report

            • Avatar Kim in reply to Jaybird
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              says:

              I’d settle for: a return to normal policework.Report

            • Avatar Morat20 in reply to Jaybird
              Ignored
              says:

              While I realize this will be taken in a partisan manner, that’s really not the President’s fault. Or problem. Or, in fact, business.

              Declaring wars, declaring victory, determining scope — those are Congress’ power in war. That they’ve handed much of it over to the Presidency because they can’t ever agree on anything doesn’t really change the fact that it’s their call.

              Congress makes the call to slip off the leash and point to a foe and say ‘get ’em’. The President’s job is “how” (as is the military’s). Congress’ job is “who” and “when” and “how long” and “under what rules”.

              Indeed, way back when the AUMF first passed I had exactly those misgivings. It’s open ended, it’s a blank check — but I can’t really blame Obama for it.

              Heck, technically speaking, he’s supposed to prosecute AQ, militarily, within the limits of the law. Which is, basically, within the limits of the AUMF, the Constitution, and any relevant treaties. You could make a bit of a case that NOT using the full military resources available (such as drone strikes) would be a dereliction of his duty.

              Congress has duly authorized a foe to be destroyed by military means.Report

              • Avatar Patrick Cahalan in reply to Morat20
                Ignored
                says:

                Declaring wars, declaring victory, determining scope — those are Congress’ power in war. That they’ve handed much of it over to the Presidency because they can’t ever agree on anything doesn’t really change the fact that it’s their call.

                I would argue that the principled thing to do here is to veto it and send it back to them, with an admonishment to do their job properly.

                Yes, I realize this is an argument that’s four decades late.Report

              • Avatar BlaiseP in reply to Patrick Cahalan
                Ignored
                says:

                I’ve often said the only sensible way to approach the Problem of Turrizm is to quit treating it like War and starting calling it Crime. It solves so many problems at once: putting our military into battle against these bastards only elevates their status in the world. At a tactical level, it doesn’t stop us from doing anything: in fact it opens up our options. Our military has constraints upon it outfits like CIA and FBI wouldn’t have. And the bastards end up in court, a real court.

                There are young folks in this wicked world, full of derring-do and testosterone who would like nothing more than to die in jihaad, going out in a blaze of glory. By abolishing the “War” aspect of this, we can then put some serious hurt on these folks, where it really hurts, besmirching their reputations.Report

              • Avatar Patrick Cahalan in reply to BlaiseP
                Ignored
                says:

                I am in agreement.Report

      • Avatar KatherineMW in reply to Morat20
        Ignored
        says:

        If the US was bombing Yemen, people would pay much more attention than they do to the drone strikes. If the US was bombing Pakistan…scratch that, they wouldn’t be bombing Pakistan because doing so would start a war between two nuclear powers. And both actions, done without even consulting Congress, would be clearly illegal.

        The primary issue is not the use of the drones, which are only a tool. The issue is that there’s a targeted killing program directed against both non-Americans and Americans with absolutely no oversight of who is being killed or how the decisions of who to kill are being made. The executive branch claiming the right to use military force, without oversight, to attack anyone it chooses, anywhere in the world is not a “normal” function of being commander-in-chief.

        The issue is NOT “what would be acceptable in the case of an immediate threat like 9/11”, because that is not what the targeted killing program has been used for at all, so invoking such situations is a red herring.Report

        • Avatar Morat20 in reply to KatherineMW
          Ignored
          says:

          It is when Congress designates a military foe that is not restricted by border.

          Guess what? In wars, the President gets to attack any declared enemy, on any battlefield, anytime he wants to. Without oversight, beyond what Congress decides.

          It’s how war works.

          The mistake was designating a group like AQ a military target. Something I have said since 2001.Report

          • Avatar KatherineMW in reply to Morat20
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            says:

            The mistake was designating a group like AQ a military target. Something I have said since 2001.

            I agree with you on that. And you were very, very foresighted – there’s not a lot of Americans who would have gone beyond “of course AQ is our enemy and we need to authorize the government to attack them” immediately post-9/11.Report

  13. Avatar Jaybird
    Ignored
    says:

    Imagine you are magically transported back to January 8th, 1963. You find yourself in the town of Pittsburgh in Pennsylvania. Before you lies the one-day old Rand Paul, unattended in his crib. You have but 30 seconds before you and you alone are magically whisked back to present day. What do you do? Some key constraints: 1.) The baby is no doubt Rand Paul. 2.) Barring intervention of some kind by you, history will precede in exactly the same manner. 3.) Non-fatal injuries may change the course of history or may not, depending on the type and severity.Report

  14. Avatar Tod Kelly
    Ignored
    says:

    So….

    Yesterday I’m listening to conservative talk radio guys who for years have been so-pro WOT at any cost that they’ve argued that even questioning erosion of liberties makes you a possible Friend of Hamas – and they’re all getting behind Paul, mostly (I assume) cause it’s a fun anti-Obama thing to pile on with…

    And this morning I’m reading these threads after having read Nob’s post, and I’ve been reading the threads over at BJ (which, along with the drone posts that kick them off, are fishing fascinating to me).

    And now I’m starting to wonder…

    By 2016 – or even the 2014 midterms – are the Democrats the pro-War On Terror party and the GOP the anti-war party? Have we become so tribally fragmented that even the cultural and political bedrock issues have become meaningless when compared to standing up for the tribe?Report

    • Avatar Jaybird in reply to Tod Kelly
      Ignored
      says:

      The bongos and hippies are meet in area A. The Lee Greenwood 8-tracks and cowboys meet in area B.

      Choose one.Report

    • Avatar Glyph in reply to Tod Kelly
      Ignored
      says:

      I linked this a few weeks ago; but this study, if replicable and well-designed, has interesting implications on just how shallow our “deepest” convictions may run, and how easily they may be manipulated, even reversed.

      Would love if Chris or someone more knowledgeable would comment on it.

      http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0045457#

      Short version: Swedes were given surveys on which they agreed/disagreed with statements indicating their acceptance/rejection of illegal immigration.

      Then, the surveys were altered so that the questions were reversed – so if before you were against illegal immmigration, now you were for it, and vice-versa.

      The switcheroo’d surveys were returned to the Swedes, who were asked to write essays or arguments supporting their “positions”. Not only did a huge chunk of them not notice the reversals, they were able to construct decent arguments supporting the newly-reversed positions.

      Kinda scary when you think about it.Report

    • Nob Akimoto Nob Akimoto in reply to Tod Kelly
      Ignored
      says:

      In this context I’m not sure what I have to do with this. I’ve been pretty consistent on this issue from day one. I have, in fact, gone to lengths to even articulate what I would consider a better national security judicial system, including ex ante review of targeting by a FISC like institution, but that on the sum, I don’t think the Al-Alaqui case presents a sufficiently novel use of force to warrant all the emotionally wrought hyperbole.Report

    • Avatar Mike Schilling in reply to Tod Kelly
      Ignored
      says:

      Have we become so tribally fragmented that even the cultural and political bedrock issues have become meaningless when compared to standing up for the tribe?

      Yes.Report

    • Avatar Michelle Togut in reply to Tod Kelly
      Ignored
      says:

      By 2016 – or even the 2014 midterms – are the Democrats the pro-War On Terror party and the GOP the anti-war party?

      Short answer, no. Paul is an outlier in his own party. Most of them are still in thrall to the neo-con theory of war and foreign relations and the notion that American exceptionalism means that the U.S. sets the tone and everybody else follows along. Expect to see more Romney-type belligerency from potential Republican nominees when 2016 rolls around. It will still be all about who has the biggest dick.Report

    • Avatar Recovered Republican in reply to Tod Kelly
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      says:

      It took about 2 weeks before Rush and his ilk were screaming about Obama continuing the same policies they had championed under Shrub.

      You’re late to the party.Report

  15. Avatar PrometheeFeu
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    says:

    There is a substantial difference between excessive use of force by LEOs and the position articulated by the Obama administration in the widely publicized white paper: Post-hoc judicial review.

    LEOs who shoot at suspects know that their actions can be scrutinized in court. Now, I think the the various defenses available to LEOs (esp qualified immunity) are excessive and that we need a much more robust response to excessive use of force by LEOs. But there is a way to punish and deter more eggrerious uses of excessive force.

    Now let’s say you are sitting in a cafe without ever having committed an act of terror or even thought of doing so and a drone comes to blow you up. Well, the administration believes (First paragraph of page 10 of the white paper) that there is no judicial forum where this can be reviewed. So while the administration states that it can shoot you only under certain circumstances, it not only believes that it is sole judge of whether you meet the criteria ex ante, it also believes that nobody can review the decision post hoc. In other words, if the President makes a grevious and reckless error of judgement (orders you to be shot because you kind of look shifty and shifty people probably wear suicide vests, so capture is not feasible) the White House’s position is that there is no forum to seek redress.

    So you’re right. The White House does not technically have a “kill-at-will” policy. It has a “kill if we secretly and alone decide that it is warranted with no consequences if we screw up or even act dishonestly or maliciously” policy. You’ll forgive me if I find “kill-at-will” to be a good-enough shorthand for that kind of policy.Report

    • Avatar Glyph in reply to PrometheeFeu
      Ignored
      says:

      Good comment PrometheeFeu (that is a hard handle for me to type for some reason) – stick around!Report

    • Nob Akimoto Nob Akimoto in reply to PrometheeFeu
      Ignored
      says:

      LEOs who shoot at suspects know that their actions can be scrutinized in court. Now, I think the the various defenses available to LEOs (esp qualified immunity) are excessive and that we need a much more robust response to excessive use of force by LEOs. But there is a way to punish and deter more eggrerious uses of excessive force.

      I guess I see the process of post-hoc scrutiny to be so thoroughly defective to be nearly useless in many cases.

      I know there’s some argument that allowing post-hoc liability for the US government on drone strikes is an alternative to requiring ex ante judicial review. I suppose that’d be a possibility I’d be okay with, but I would personally prefer ex ante permission.Report

      • Avatar Morat20 in reply to Nob Akimoto
        Ignored
        says:

        Doesn’t Congress have the power to review the executive’s actions, even in war time?

        If so, then same-same. LEO’s are scrutinzed by courts after the fact, military actions are scrutinized by Congress after the fact.Report

      • Avatar PrometheeFeu in reply to Nob Akimoto
        Ignored
        says:

        “I guess I see the process of post-hoc scrutiny to be so thoroughly defective to be nearly useless in many cases.”

        It is. But it’s something and more importantly, it can be incrementally fixed. If you have no post-hoc judicial review, there is nothing to be fixed.

        “I know there’s some argument that allowing post-hoc liability for the US government on drone strikes is an alternative to requiring ex ante judicial review. I suppose that’d be a possibility I’d be okay with, but I would personally prefer ex ante permission.”

        I think ex ante review isn’t all it’s cracked-up to be. The only practical way to do ex ante review would be to setup a special FISA-style court where the government gets to go and make its case alone and unopposed. Over time, it’s going to be hard for the court to not get captured by the sole party it ever interacts with.

        Furthermore, the facts have not been fully developed. This means the court will be looking only at a relatively narrow sets of the facts. On the other hand, after the fact, the court can see all the facts of what the government decided to do and make its decision based on that.

        To take an example, ex ante, a court would not be able to clearly delimit what civilian casualties are going to be acceptable which would allow the government to be more reckless than what the court would find acceptable. Ex post, the court would see exactly what the civilian casualties were and could decide whether the government’s actions were acceptable or not.

        I also think that if a correct imminence standard is adopted, there will be no time for ex ante review. Agents of the executive should be able to act quickly upon the information they have in order to be most effective. But, they should be held liable if they screw up. If a police officer is pointing his gun at a terrorist, there isn’t time to ask a judge whether he’s allowed to shoot or not. The LEO must make the call and bear the consequences of his decision.Report

        • Avatar James Hanley in reply to PrometheeFeu
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          says:

          I think ex ante review isn’t all it’s cracked-up to be. The only practical way to do ex ante review would be to setup a special FISA-style court where the government gets to go and make its case alone and unopposed. Over time, it’s going to be hard for the court to not get captured by the sole party it ever interacts with.

          Thank you. That bears repeating, repeatedly.Report

  16. Avatar North
    Ignored
    says:

    Two thoughts:
    -I don’t think much of Rand Paul in general but I can’t help but feel some appreciation for his filibustering here. It really looks like the correct way the legislative tactic is supposed to be used in stark contrast with the cynical idiocy his party uses and calls filibustering*.

    -It boggles my mind that, having campaigned against the Bushes on civil rights and having been handed this stinking mess by them when he entered the office Obama may end up wearing the whole thing. Probably this is a consequence of his (typical) confrontation adverse decision to avoid controversy and continue the status quos**. I hope this thing blows up more and Obama volt faces and takes this opportunity to go a bit more old campaign Obama about the whole issue.

    *And I agree the Dems have made bad use of the filibuster in the past though, I submit, never to this ridiculous extreme.
    **Though he did try and close gitmo, banned torture and ended some other sundry abuses.Report

    • Avatar Mark Thompson in reply to greginak
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      says:

      A small victory, I suppose, except that it is clearly intended to be dismissive while still refusing to identify how the Executive intends to distinguish between a combatant and non-combatant, and how that distinction is going to be subject to review, which is the main issue here.Report

  17. Avatar Jaybird
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    says:

    Remember the Israel/Palestine arguments we used to have, a million years ago, during the 2nd Intifada?

    The arguments about Israel’s disproportionate response, the ethics thereof, the responsibilities of the State of Israel toward non-combatants, and so on?

    I don’t see those arguments take place, like, *ANYWHERE* anymore. When Bush was President, you couldn’t swing a cat within a War On Terra discussion without starting an argument about Israel and Palestine.

    Am I nuts when I wonder if this is because criticism of Israel would obviously splash over to criticism of Obama and it’s not too high a price to pay to avoid the one by avoiding the other?

    I mean, yeah, I know I’m nuts. Am I misreading the dynamic in *THIS* case, though?Report

    • Nob Akimoto Nob Akimoto in reply to Jaybird
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      says:

      I’m actually curious if the causal mechanism isn’t in the reverse.

      That is, perhaps criticism of Obama might splash over to criticism of Israel, particularly with targeted killing policies which Israel have taken to rely on substantially more over the last 10 years or so.

      I’ll have to think about this a little bit, actually.Report

      • Avatar Patrick Cahalan in reply to Nob Akimoto
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        says:

        I think you’re both onto something, here.Report

      • Avatar Jaybird in reply to Nob Akimoto
        Ignored
        says:

        The Republicans who criticize Obama on the War On Terra tend to all be using the argument, paraphrased, “we need to be even more violent.”

        This doesn’t tend to splash over onto Israel.

        As such, the majority of the times that I see Republicans criticizing Obama, it’s all on the topic of fiscal conservativism and goes over about as well as I imagine you imagine I imagine.

        It’s the other arguments about Israel/Palestine that we just don’t have anymore… and I don’t think it’s because the Right Wingers have changed their minds.Report

  18. Avatar Shazbot3
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    says:

    Was a drone strike on Bin Laden (or rather the attack with guns, the method of killing is morally irrelevant), who got no trial, both legal and moral? Would it have been less moral or illegal had he been a citizen? Would you have argued against the attack without trial had Bin Laden been a citizen at some point? Indeed, the attack on the compound was an attack on someone we suspected (without trial) of being Bin Laden. We suspected, but there was no trial to prove he was guilty. We were quite happy to violate that person’s right not to be killed without a trial proving, where he could face his accusers, that he was Bin Laden, and that he was guilty of crimes.

    If it was legal and moral to kill the leader of AQ without judicial oversight as an action in the war on terror, even if we imagine that hypothetically he had once been a citizen, how are any other drone strikes against members of AQ different morally or legally?

    I just want to remind the most extreme civil libertarians that Bin Laden got no trial either, nor would he have had gotten a trial had he been a citizen, say, in the 1970’s before leaving to be a moral monster in AQ.

    There are morally grey areas in what can be done legally and morally during war time or during military actions against non-state groups. I’d argue that the drone program is illegal (I am unsure about the Bin Laden raid.) But I do think that some of the furor over the violations of civil liberties in the war on terror are overwrought, and we need to balance considerations of safety and civil liberties, not be extremists about either, which is -I think- what we always do.Report

    • Avatar James Hanley in reply to Shazbot3
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      says:

      I don’t think the attack on the compound was itself immoral or illegal (although perhaps illegal under international law). Killing him was not necessarily either one of those, assuming he fought back against the soldiers (with lethal weapons, not just with kicks and punches). I do think the order to purposefully kill, rather than try to capture, him was certainly immoral, although probably not illegal (under U.S. law).Report

      • Avatar Shazbot3 in reply to James Hanley
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        says:

        Would you not have ordered the soldiers to kill OBL. Would you have ordered that they try capture if at all possible?

        I go back and forth on this. And I suspect as history goes along, there will be more dispute about it. Morally problematic, at least, even if justified.

        I like to remind myself that they attacked the home of a person that they strongly suspected but hadn’t proved was the home of a criminal.

        IMO, some of the drone strikes or attacks are immoral. Others might be morally justified but morally grey.

        I take Nob to be arguing, amongst other things, that we should alter the drone program and add more judicial review, but there are going to be some morally justified killings that violate liberties, and we need to balance civil liberties worries with worries about killing dangerous members of AQ, and we shouldn’t just reflexively claim that the drone program should be entirely scrapped solely because it violates civil liberties and is morally grey.

        Correct me if I’m wrong, Nob.Report

        • Avatar Shazbot3 in reply to Shazbot3
          Ignored
          says:

          And maybe Nob is arguing that some people are hypocritically overblowing their worries about civil liberty violations in the drone killing program aimed at non-state actors that they wouldn’t worry about in attempts to enforce the law domestically or during war with a state. He’s right about that, IMO, but the big question is how do we have judicial oversight of the drone killing and covert killing that balances safety and security with civil liberties. Very difficult question, and what Obama (and the D’s and R’s in general) can be faulted for is not working on that question hard enough.Report

          • Nob Akimoto Nob Akimoto in reply to Shazbot3
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            says:

            You’re right in both cases.

            Though I’d also add that as I’ve said to James above, that I think the pernicious influence of law enforcement being militarized is greater than slightly expanded executive capacity for actions overseas. I think this is an area of disagreement where I’m not sure I can convince my interlocuters.Report

            • Avatar James Hanley in reply to Nob Akimoto
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              says:

              But please don’t think it means we don’t have tremendous amount of concern about the militarization of law enforcement. A few years ago I begged and pleaded to scrounge funds from various sources so I could bring Radley Balko to my school to give a public talk about that issue. In the big picture/long run I’m more worried about the U.S. sliding toward an executive dictatorship, but I on a daily basis I am absolutely appalled and deeply disturbed by the continuing trend of making our police forces paramilitary forces. For god’s sake there are universities that have their own swat teams, and whereas swat teams were once reserved only for very serious events like hostage crises, the need to prove the value of the money spent on them has increasingly led to them being used simply for serving warrants.Report

              • Nob Akimoto Nob Akimoto in reply to James Hanley
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                says:

                I think where perhaps we disagree is what causes which.

                I think to some extent your thesis of executive power grabs also actually has a secondary causal mechanism of making other organs of state more militarized.

                My thesis here, as much as anything is that militarization of the police and the otherization of victims of police violence and criminal behavior has made it easier for the executive to claim certain powers as the culture has gotten more used to it.

                When the image of police went from Andy Griffith to COPS/Miami Vice then even further to Vic Mackey (who despite being a heel wasn’t viewed as one by much of the audience) is I think a cultural signifier of something deeper.Report

              • Avatar James Hanley in reply to Nob Akimoto
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                says:

                Oh, you may be right about our differing views of the causes. But I’m going to argue that I am absolutely, indisputably, right about the direction of causation. I don’t mean that to be nasty, but let me again emphasize that executive power has been growing for a century, or even a little more, now. That growth took leaps forward in the second half of the 20th century as we became a national security state in response to the (supposed, maybe) communist threat, and continued to grow despite some feeble attempts at pushback in response to LBJ and Nixon (after which, apparently, we just decided to accept it).

                All that happened prior, long prior, to the militarization of the police. Obviously Y following X doesn’t prove X caused Y, but Y coming prior to X proves X didn’t cause Y. So your thesis has the hard work of explaining the increased growth of executive power prior to the militarization of the police. My thesis, while obviously not proven, is more parsimonious because the temporal sequence is non-problematic.Report

              • Nob Akimoto Nob Akimoto in reply to James Hanley
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                says:

                I think there’s still a decisive cultural shift post 9/11 on how terror suspects and criminal suspects in general are treated. Having as much to do with the cultural milieu and circumstances against dissent as much as anything else.

                I mean I do agree that Congress has completely fallen behind the Executive since sometime at least since McKinley if not earlier, with the process accelerating during the Cold War and the advent of various quasi-military, para-military tools at the Executive’s disposal. (the CIA for example after OSS)Report

              • Avatar James Hanley in reply to Nob Akimoto
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                says:

                Terror suspects, yes. Criminal suspects? I’m not sure I see it, but it would still suggest a national down to state level dynamic, not the other way around.

                But I have to go to bed now, and I won’t be around tomorrow, so I won’t be able to continue the discussion. That gives you the last word, so thump me good!Report

              • Avatar James Hanley in reply to Nob Akimoto
                Ignored
                says:

                Oh, by the way, McKinley, yes. I think that’s really the best bet for earliest starting point in this, or at least best bet for first arguably modern president. He’s not particularly disturbing, of course; it’s not like there was a sudden shocking change. And that, I think, is the real problem. If there’d been a really noticeable step-function increase in the presidency, we might have successfully reacted against it. But because it’s been incremental increases, we reach the same point as a step-function, but without any step large enough to shock us into reaction.

                Oddly, even I might find a McKinley an unsatisfyingly non-active president at this point in history. 😉Report

              • Nob Akimoto Nob Akimoto in reply to Nob Akimoto
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                says:

                I think on some level the public’s perception of criminals in general changed during the 70s and 80s. The era of urban crime, riots, and as Jaybird’s recent post talked about, perhaps the need for antiheroes to take out “bad guys”. In some sense the ambiguity of military action after Vietnam and then all the shadow war stuff in the 80s was replaced in the popular mind with a clarity of bad guys and good guys in terms of urban criminals, all of which were guilty of SOMETHING.

                I think that’s clearly changed how the public perceives of law enforcement solutions to certain problems and what “law enforcement solution” even means. In that respect I would argue even that the Executive getting somewhat checked on paramilitary uses of force (even if not entirely successfully) after some of the more notable incidences during the Cold War might have made it easier to transfer the heroism of the old GIs into the militarized police.

                I suppose what I’m trying to say is that I think society militarizing LEOs is a phenomenon that’s taken place in a separate time frame than the gradual acquisition of executive power.

                …also I now suspect that you’re actually the one who went back in time and shot McKinley.Report

              • Avatar Mike Schilling in reply to Nob Akimoto
                Ignored
                says:

                Anarchist, libertarian, same idea.Report

        • Avatar James Hanley in reply to Shazbot3
          Ignored
          says:

          Would you not have ordered the soldiers to kill OBL.
          I would not have ordered them to kill him instead of making any attempt to capture him.

          Would you have ordered that they try capture if at all possible?
          No, that’s too strong. I would have ordered them to capture him if feasible; if he wasn’t fighting back with weapons that would have endangered them.

          If he’s pointing a gun at the soldiers, I have no problems with them firing before he does (and they are trained to shoot at the body mass, to kill instead of wound). I only have a problem with the command to kill him as soon as he’s found, regardless of whether he poses a threat; the decision that we absolutely want him dead instead of alive.Report

          • Avatar Shazbot5 in reply to James Hanley
            Ignored
            says:

            I get that. I agree largely. I think I’m not asking the right question. Surely it would have been okay if he had willing gone under arrest.

            Let me ask the question differently. Did a foreign national have a right to refuse arrest by the U.S. government who whad no warrant, no legal authority to arrest? (If China sent soldiers to arrest (or kill if you refused arrest) you because of their belief of your support of Uighur terrorists, or something, it seems like you would have a right to fight back and their action would be a violation of your civil liberties as they have no legitimate claim or right to arrest you. (Suppose the Uighurs you helped had used your help to kill dozens.) What is the difference between the Chinese trying to arrest (or kill if you resist) you without legal authority and due process and us arsting (or if he resisted, killing) OBL without due process?

            If the answer is “Yes, we were violating OBL’s rights and what we did was wrong in trying to arrest him and shouldn’t have been done.” we may have gone too far to the extreme in believing in the value of civil liberties over other moral and utilitarian concerns. IMO, we did violate OBL’s rights, Pakistan’s sovereignty, the rule of law, and all sorts of other things, but it was the right thing to do because other moral principles were more important in killing Bin Laden.

            So it is with the drone program. We need to balance other moral considerations with civil liberties. Sadly, the MSM and the mainstream parties haven’t thought and discussed this issue enough.Report

  19. Avatar George Turner
    Ignored
    says:

    I asked for someone to post about Rand Paul’s filibuster, then had to travel all day and missed the discussion. 🙁

    Anyway, if a US citizen was sitting in a US restaurant and got blown apart by a missile fired without warning or provocation, inflicting all sorts of collateral damage, I’m pretty sure we’d classify it as an act of terrorism. Would it matter whether he was an Al Qaeda operative? Would it matter whether other Al Qaeda members killed him because they suspected he might be an undercover federal agent, or whether the President ordered the attack because someone suspected he might not be an undercover federal agent?Report

  20. Avatar Barry
    Ignored
    says:

    Some comments from Thoreau (http://highclearing.com/index.php/archives/2013/03/08/16027):

    ” If you send a team of men with guns, you can in principle leave open an opportunity for the target to surrender. Or, at least, if you want to pretend that you weren’t planning this as an assassination, you can at least create some plausible deniability and maintain that really, honestly, you would have been happy to accept the suspect’s surrender, but he committed suicide-by-cop when his hands suddenly moved upward toward the empty air. If you send a drone, you’re making it abundantly clear what your intent is.”

    There was an interesting comment once in Wikipedia on Hitler’s ‘Night of the Long Knives’ (the destruction of the SA as a threat to Hitler’s power), that at this point Hitler and his crew openly admitted that they simply had people killed upon Hitler’s orders, and that nothing else was necessary (what I call the ‘take him out and shoot him’ principle). At this point, Hitler and the Nazis were not even bothering with rigged one-party-state show trials.
    Several German judges and legal officials resigned over this.

    “Remember Ruby Ridge? The particulars of that case and the right-wing response to it in the 90’s are largely immaterial here. What’s more significant is that Idaho prosecutors actually tried to go after a federal agent who was involved in the siege. If the killing is done by a guy on the ground, he has to show up and interact with people. The local cops might figure out who he is. But if the trigger is pulled by a guy holding a joystick in another state, sitting in a classified location, they won’t have any idea whom to prosecute. And even if they did, he’s in another state. I’m no lawyer, but surely the jurisdictional issues facing a state or local prosecutor will be complicated, to say the least.”Report

  21. Avatar Morat20
    Ignored
    says:

    I remind everyone: There is a single, simple fix to this. Repeal the AUMF.

    The broad scope of the AUMF is what authorized military responses against what amounts to a tactic and a battlefield that encompasses the entire world. Repeal or restrict it, and the problem is fixed.Report

  22. Avatar M.A.
    Ignored
    says:

    What Rand Paul has done is start his presidential campaign early, that’s all.

    The right wing radiosphere is atwitter today with “stand with rand” malarkey. Every one of them gleefully repeating the same distortions Paul made over and over again, as well as lying about the question Rand Paul actually asked and insisting “why did it take a month and a half and a 13-hour filibuster to get a straight answer” to an un-asked question.

    One radio host even had the gall to demand to know why Eric Holder’s letter wasn’t issued in the first half hour of Rand Paul’s speechmaking.

    This is the effect of the right wing media bubble. Within it, lies are accepted as truth, Goebbels-style.Report

  23. Avatar superdestroyer
    Ignored
    says:

    Anyone who claims that Rand Paul was grandstanding should be forced to link to every post where they accused Democrats of grandstanding. Unless someone links to a post where they accuse progressives and Democrats of grandstanding such as accusing Charlie Rangel of grandstanding when he proposed mandatory military service or bringing back the draft, then the person making the grandstanding claim has zero credibility.Report

    • Avatar BlaiseP in reply to superdestroyer
      Ignored
      says:

      Does calling Harry Reid crooked as a dog’s hind leg count?Report

    • Avatar Bob2 in reply to superdestroyer
      Ignored
      says:

      Because it makes Rand Paul’s grandstanding less true?

      Tu Quoque logical fallacy much?Report

      • Avatar superdestroyer in reply to Bob2
        Ignored
        says:

        If grandstanding is bad, then the writer should point out all of the episodes of grandstanding such as the Obama White House wanting to eliminate tours. However, if grandstanding is only bad when Republicans do it, then the writer is being dishonest and should admit their partisan leanings.Report

        • Avatar Gaelen in reply to superdestroyer
          Ignored
          says:

          The authors argument that this was a piece of political theater which didn’t advance (or in fact harmed) the discussion over civil liberties in the WOT stands or falls on its own merits, regardless of whether the author went through a laundry list of other examples of political theater by Democrats.

          Said another way, this wan’t a post about grandstanding as a political tool (where your point might be germane), it was about this episode of grandstanding, and whether it advanced its stated agenda.Report

    • Avatar Kolohe in reply to superdestroyer
      Ignored
      says:

      Well, to be fair, Rangel actually believes in the draft, based on the misconception of the socioeconomics of those who have died in the wars of the last ten years, and the somewhat accurate view of the communitas universal conscription purchases, though its not worth the price.Report

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