So evidently capture feasibility is a big thing…

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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26 Responses

  1. Avatar Morat20
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    Did someone think it wasn’t? It seemed pretty obvious the US went for captures when possible. (If nothing else, dead men tell no tales). I think a lot of people overestimate the risks of capturing someone (too many spy movies, too many videogames, whatever).

    I mean take Bin Laden — they really wanted him, he was in a country that could be persuasded to look the other way, and it still almost went totally bad. (Besides him ending up dead — helicopter problems, etc).

    It seems most of the ‘kills’ are in countries where we can’t trust their military or police (or where they flat out won’t work with us) — Pakistan, Yemen, a few others.

    I think it’s like the CSI effect — real CSI people can’t magically do DNA checks in an hour, you can’t “enhance” crappy stop-light cameras to see reflected license plates on some guy’s glasses, — but people see it on TV and so end up with highly unrealistic expectations of how the real world works. (I understand it’s an actual problem for judges — lord knows the last jury duty I was at had the judge spend 5 minutes explaining real life wasn’t CSI, and not to wonder why we didn’t have DNA evidence for a burglary case).

    I think the US — between propaganda, movies, and TV — have really oversold special forces. They’re not wizards. The CIA ain’t James Bond.

    Not to say there aren’t exceptions — just as Bin Laden was worth the risk to capture alive, there are undoubtably decisions made the other way — but by and large it seems to boil down to risk analysis, not machievallian power trips.Report

    • Nob Akimoto Nob Akimoto in reply to Morat20
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      Well if you read all of the responses to my other post from this morning, it certainly does look like there’s substantial doubt on feasibility of capture being an actual metric among a lot of people.Report

      • Avatar Kazzy in reply to Nob Akimoto
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        Nob,

        Sincere question: What is your position on the death penalty?Report

        • Nob Akimoto Nob Akimoto in reply to Kazzy
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          You’ll think I’m being inconsistent, probably, but I’m against it.

          I feel the probability of judicial error in so many cases is vast, that there are such incredible strains on the criminal justice system and disparities in sentencing based on race and socio economic background that it amounts to cruel and unusual punishment.Report

          • Avatar Kazzy in reply to Nob Akimoto
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            Indeed, I think you’re being inconsistent. Can you explain why you think you are not?Report

            • Nob Akimoto Nob Akimoto in reply to Kazzy
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              I think that law of war considerations are considerably different than domestic law enforcement.

              Specifically once an individual places themselves outside of the reach of law enforcement based counter-terrorism tactics by going to say Yemen and hiding among anti-government rebel groups and plotting to conduct terror attacks, you’ve implicitly chosen to waive certain parts of judicial due process in favor of executive due process.

              At that point you’re a combatant, and I no more expect the government to read miranda rights to an insurgent firing an RPG at a troop carrier than I expect them to bother with extremely risky capture operations against someone like Al-Alaqui hiding in Yemen when a hellfire based drone strike will do.

              In the case of domestic crime (terrorism suspects included), there’s far more time and probability of conducting a thorough investigation and coming to a measured trial and sentence. You have a lot more control over environmental factors and more surveillance options.Report

              • Avatar Kazzy in reply to Nob Akimoto
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                says:

                Nob,

                So you don’t have a moral objection to the death penalty? If it could be employed in a way that was wholly Constitutional, you would not object?Report

              • Nob Akimoto Nob Akimoto in reply to Kazzy
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                As a practical matter, I don’t think it’s possible to employ the death penalty in a wholly Constitutional way.

                In so far as a state killing a criminal, I’m perhaps somewhat ambivalent about it morally, but I do think the fact that it IS so skewed and unevenly applied makes it immoral.Report

              • Avatar Kazzy in reply to Nob Akimoto
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                says:

                Got it. I don’t see that as inconsistent. Disagreeable from my vantage point, but that is what we’re here for, no?Report

              • Nob Akimoto Nob Akimoto in reply to Kazzy
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                I’m curious what you find disagreeable.

                As I noted in FP post, I’m much more ambivalent about the use of lethal force on alleged criminals, and my suspicions about the ability of the criminal justice system to accurately render a verdict makes me uneasy about capital punishment. Is it the notion that I allow for a platonic ideal possibility of permissable capital punishment?Report

              • Avatar Kazzy in reply to Kazzy
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                Yes, the last part. I think capital punishment is only acceptable if there are no other viable means to secure the safety of citizens (or even other criminals) from the criminal. That is not our reality in the states. Killing should be a last resort; I think we have other options in our criminal justice system.Report

  2. Avatar BlaiseP
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    Notice how Turkey packed Abu Ghaith off to Jordan so US authorities wouldn’t have to go to Turkey. There’s no love lost between Turkey and the US just now.Report

  3. Avatar KatherineMW
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    They’ve captured one guy. They’ve killed thousands with the drone program with while refusing to release any evidence supporting their assertions that these people were even Al Qaeda members, much less immediate threats.

    “Feasibility of capture” may not be the central issue of importance here. The first line of the linked post states: A son-in-law of Osama bin Laden and longtime suspected member of al Qaeda has been captured by U.S. officials

    Suspected. As in, they don’t have definite proof. They don’t know if he’s in AQ or not. And yet, if capture hadn’t been feasible, he’d have been another one of the ones they sent the drones after. That’s one of the many problems with a targeting killing program that doesn’t require evidence and operates without any oversight.Report

    • Nob Akimoto Nob Akimoto in reply to KatherineMW
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      I do actually think feasibility of capture is an important element of whether something turns into a military operation or a law enforcement one…. The problem obviously is that non-state actors prefer to operate in places where the state is weak so feasibility gets harder.Report

      • Avatar Kim in reply to Nob Akimoto
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        kinda sorta. maybe not. you’ve got more mercs, ya know?
        And assassins…Report

      • Avatar Glyph in reply to Nob Akimoto
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        says:

        “Feasible capture” and “imminent danger” must work together for “feasibility” to matter at all.

        If the danger isn’t imminent, then it doesn’t matter that it’s not feasible to capture. You bide your time, and attempt to capture later.

        “Imminent” is the critical piece, IMO. If it’s imminent AND capture is not feasible, maybe then you blast ‘im.Report

        • Avatar Jonathan McLeod in reply to Glyph
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          And “imminent” has been routinely abused so as to have little meaning.Report

          • Avatar Glyph in reply to Jonathan McLeod
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            Well, yeah, true.

            I was just trying to point out that *without* “imminent” danger, “feasible capture” is completely a meaningless metric. It’s like the cops that break down the door without a warrant because they hear the toilet flushing and they “might be losing evidence”. This is allowable, but it should not be – you win some, you lose some.

            The only reason to break down the door sans warrant, should be imminent danger.

            The only reason you evaluate whether capture is even feasible or you should bypass the attempt to capture and go straight to kill, should be imminent danger.Report

        • Avatar Morat20 in reply to Glyph
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          You gotta factor in leadership and modern communications.

          Obama, for instance, is currently in Washington. In a sense, he is not an imminent danger to anyone outside of his arm’s reach. By picking up a phone, however, can generally wreck someone’s whole day. (Metaphorically).

          So let’s put Johhny Evil is sitting in the middle of Yemen somewhere. He’s probably not capturable, not without sizeable risk. If he’s just sitting in Yemen avoiding capture (or bombs), he’s not am imminent threat.

          Now give Johnny a phone. Or a lackey willing to run messages. And say Johnny Evil has underlings or money or materials of destruction (bombs, guns, etc). Suddenly, well, Johnny might be an imminent threat — not for what he can do personally, but what he can have done — or what he’s planning to have done.

          General Patton was just a soldier — he wasn’t personally any more or less lethal than any other soldier under his command. But you can bet the Germans considered him far more of a threat than the guy driving one of his tanks.

          So there’s a whole ‘nother facet here that has to be considered, if you want to be honest. ‘Threat’ doesn’t just mean what you can do personally — it covers what you can make happen.Report

          • Nob Akimoto Nob Akimoto in reply to Morat20
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            It’s an imperfect analogy, but the operation to kill Isoroku Yamamoto in the Pacific as well as the attempted operations to kill Erwin Rommel in North Africa may count in a similar fashion…though obviously this was after a declared war.Report

          • Avatar Mark Thompson in reply to Morat20
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            Well, sure, but when we’re dealing with US citizens who are alleged to be members of non-state actor groups that have been deemed a threat to security, the failure to accord due process to prove that membership and that the citizen’s involvement extended or would inevitably extend to actual threats to US security creates a situation that is both rife for abuse and likely to lead to mistakes (see my comment below – if we have as many mistakes as we do with due process for domestic investigations and trials, how many are we going to have without it).

            Without according due process and without evidence of an imminent attack, how can we ensure that we know with a sufficient degree of certainty to justify taking life that the given target presents any more of a threat than any other American who espouses radical views?Report

            • Avatar Morat20 in reply to Mark Thompson
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              What does American citizenship have to do with it?

              The constitution specifies “no person” when discussing due process, not “no citizen”. (It does have this bit: except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger)

              So why is it different to bomb an American citizen in Yemen without a trial, or oversight, or due process than it is to bomb Johnny Random Guy?

              I keep scanning the constitution and I’ll I’m finding is the 5th Amendment, which makes no distinction between citizen and non-citizen — just times of war and danger, and not.

              Now, maybe there’s a law somewhere….I know there are treaties we signed that limit our ability to unilaterially bomb anyone we choose, which are legally binding.

              But Constitutionally? Either it’s legal to bomb them or not. Citizenship doesn’t matter. Due process does — or does NOT — apply on factors that do not include citizenship.

              Unless, as noted, there’s some laws governing that.Report

              • Avatar Mark Thompson in reply to Morat20
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                Citizenship matters for at least two reasons:
                1. Implicit in the guarantee of due process is that it can only apply to matters and persons within the US’ jurisdiction. A citizen is subject to US jurisdiction whereever he goes (e.g., the Foreign Corrupt Practices Act), and anyone acting within the US, whether or not a citizen, is also subject to US jurisdiction. But due process requirements definitionally can’t apply to matters wholly outside US jurisdiction.

                2. One who is either a citizen or acting within the territory of the US implicitly agrees to be subject to the laws of the United States; in exchange, they are entitled to the rights provided by the Constitution. This does not hold true for foreign citizens who have not agreed to be bound by the laws of the United States.

                Basically, citizenship and territoriality are what constitute the realm of domestic and Constitutional law, everything else constitutes the realm of international law.Report

        • Avatar Mark Thompson in reply to Glyph
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          This.

          Here’s a useful hypothetical I think:

          An American citizen, angry that his country is doing little to support the Syrian rebels, decides to go to Syria to fight with the rebels, some percentage of which have ties to AQ or other Islamist terror groups, many of which have expressed a desire to attack American interests at some point. Our hypothetical American citizen, for whatever reason, falls in with one of these groups, theoretically putting him in violation of US law. He is there to fight Assad, no more and no less, and for one reason or another these groups provide him the best chance to do so.

          Capturing him is not feasible, but he represents no imminent threat to the US; indeed, while the organization(s) he is working with have a long-term stated goal of attacking the US (and maybe have even attacked the US in the past), their present resources are fully tied up in fighting Assad such that even the groups represent only a future threat to the US. It is as such at least open to debate whether he has any intention of assisting in the pursuit of those long term goals, or even if he is fully aware of those long term goals, though the administration believes he does so intend and is so aware.

          The question here is not whether the USG would in fact conduct a targeted killing in this case (presumably they would not), nor is it whether they should conduct a targeted killing in this case – it’s whether they should even have the legal authority to do so. I could be wrong, but under the the theory the administration has offered, it does have the legal authority to do so without any due process to judicially determine the extent of his involvement with the group’s long term goals.

          I find this extremely troubling. Without some degree of imminence or actual custody of the target, such a target can be no more than a potential threat to national security, rather than an actual threat.

          I would hope we all agree that a government ought not have the authority to kill its own citizens without due process solely because they are deemed to be “potential” threats who cannot be captured.

          I mean, we know for a fact that, no matter how much effort is expended in investigating a given crime, it happens all too frequently that the investigators- and indeed the justice system as a whole – just wind up getting it wrong. That happens despite the fact that these investigators have the ability to interview both witnesses and the defendant, and to collect as much forensic evidence as exists, while also having to overcome an attorney for the defendant whose job it is to advocate for that defendant, and the beyond a reasonable doubt standard and the federal rules of evidence.

          Why would we think that the CIA or NSA have the ability to be as accurate or more accurate without the ability to interview the target or even many (if any) witnesses, with at most a limited ability to collect forensic evidence (since they’re operating in the shadows on the other side of the world or relying on electronic surveillance), no advocate for the target to provide an alternative view, and no legal standard beyond their own conclusions?

          Requiring that a threat to national security be actually imminent to justify the targeted killing of a US citizen, whether located in the US or abroad, without judicial due process seems like it should be a pretty basic requirement.Report

          • Nob Akimoto Nob Akimoto in reply to Mark Thompson
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            Your hypothetical, to me, is a compelling case for having some sort of judicial review mechanism on citizens that are infeasible to capture, but perhaps not an imminent national security threat.Report

            • Avatar Mark Thompson in reply to Nob Akimoto
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              says:

              That would be a marginal improvement, but I’m still not overly enamored of it – as a practical matter, you’re looking at the equivalent of a grand jury’s indictment being grounds for an immediate execution without any evidence of there being an imminent threat to life (and particularly not life subject to US jurisdiction). Even if they would ultimately be found guilty if tried of terrorism-related offenses (which would be the case in my hypothetical), without proof of imminence or at least an advanced conspiracy to commit a specific attack against American interests, you’re talking about offenses that would potentially be fairly run of the mill felonies if prosecuted in court.

              But beyond that, you’ve got a judge hearing one-sided, cherry-picked evidence to support the administration’s claim that the target is a member of a terror group that threatens national security.

              Without evidence of imminence or at least a specific conspiracy, there’s just not much good served by killing an American citizen without according them ordinary due process, and certainly not enough to justify doing away with due process.

              I’m more ambivalent about the targeted use of drones to kill non-US citizens residing in foreign countries, since there you’re more clearly in the realm of international law and the law of war, and the targets are neither beneficiaries of nor subjects of American law. To be sure, I still have plenty of qualms with how those attacks are executed in practice and the propensity for overreliance on them and their tendency to kill lots of innocents, but my concerns about lack of accountability and unlimited executive power are less relevant in that context.Report

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