Impeach Barack Obama
Barack Obama should be impeached, convicted, and removed from office. He has ordered the killing of at least one US citizen without indictment, conviction, or any sort of judicial review. His office considered indictment of the suspect but ultimately declined. They likely realized that an indictment would make killing him later more awkward.
Due process, it was said, was served because the executive thought about it and thought it a well-considered decision.
This is a laughable notion of due process. It cannot be sincere. In the US, due process cannot exist without judicial review. Even if it is done in secret, such a review must be performed. In squelching this possibility, Obama willfully violated the Constitution.
[scribd id=230975716 key=key-CRRqYYpgt5MokQOGt1Wl mode=scroll]
If the United States Constitution means anything, it cannot be interpreted so as to allow a single executive and his office to himself choose which of his country’s citizens he has the rights to kill. If the Constitution allows this, then there is nothing that it can credibly be said not to allow.
And we will soon be in desperate need for the Constitution to mean something and for the country to take its enforcement seriously.
There has been much talk recently about the US having lost its democracy. Perhaps we have. But when all is ash, I don’t think we’ll look back and say the Comey letter was the day everything changed. We might remember, however, when a Nobel-Peace-Prize-wielding president compiled a list of his own citizens to kill and the country cheered.
Obama Oval meeting senior staff. Credit: Pete Souza, White House photographer
Seems like a SCOTUS issue, but who would have standing to bring the case?Report
Standing is the easy part: the family of Anwar al-Awlaki or anyone else killed or injured by a drone strike. The problem is that their case would lose. You’d get a five or six vote majority saying that the US is in a state of war with Al-Qaeda, thus making any use of force against people we believe to be members an act of war that must comply with the Geneva Convention and our other treaty commitments and statutes, but not a criminal action that must overcome a far higher standard of process. Sure, you’d also get a righteous dissent pointing out that the majority’s holding turns the entire world into a free fire zone, unbounded geographically and temporally, in which the president can dispense lethal force arbitrarily, but the dissenters would lose and the drone strikes would continue.Report
To be fair it is already de-facto american foreign policy that the entire world is a free fire zone. The only question that bothers so-called realists is whether american interests are advanced. The calculus is purely nationalistic.Report
Well sure, but I think we should prefer hypocrisy to an outright embrace of bad behavior.Report
Playing devils advocate. Every country feels this way in areas where they can get away with it. The US just happens to be the biggest dog, so it has the most yards it can poop in.Report
I think you’d get a 9-0 vote that it’s a political question. How could a court possibly intervene in the conduct of military operations? Can you imagine what that would look like, a district court taking evidence as to whether the USG can attempt to kill a particular person in the course of a military operation being conducted in a foreign country?Report
Also, executive immunity.
He was acting in official capacity as commander-in-chief of the armed services.Report
I believe a family brought one of these drone cases, which was dismissed on political question grounds and not appealed. That raises a central paradox — the courts will say this is a political matter, but the discussion quickly goes to Constitutional norms, and such rulings appear to hold that there are no set Constitutional expectations.Report
I seem to remember that one.
It was dismissed on plausibility of pleadings, due to the re-interpretation fo a long-standing case; something involving Danforth.
Iqbal.Report
Hardly the entire world, just where law enforcement has no ability to do anything.
If it takes the army to arrest someone, then they don’t get to claim “because they’re not cops the rules weren’t followed”.Report
I suppose the criminal prosecution issue will require someone to show standing (I guess?…..obligatory IANAL….if something is a crime, doesn’t a prosecutor, as a representative of “the people” have the prerogative to bring the case?). But as for impeachment, as long as it’s the HR creating and passing articles of impeachment and the Senate trying it, it’s not a standing issue.
As to whether SCOTUS would consider it a political question, that’s probably what would happen, rightly or wrongly.Report
Standing is only an issue in civil matters.
The State always has standing to bring a criminal matter, but no one else does.Report
You know, my takeaway impression when this story came out was that the military had been doing this routinely without so much as telling the president. This was the Bush/Cheney legacy – they didn’t want to know. Obama found out, slowed things way down and in the process approved one. But the people who had been doing it all along treated it as a tar-baby. “The President ordered it! Don’t blame me!”.Report
A million years ago, we debated these things.
I think the whole “we should at least try the bastard in absentia!” argument still stands up.
I think that it is an impeachable offense on the President’s part *IN THEORY*. In practice, however, you need to overcome the whole counter-argument of how this guy was arguably engaging in psyops and recruiting for the other side in a war…
Which means that the guy has already received a trial in the court of public opinion and the prosecution has the go-to defense of “why are you attacking Obama for killing terrorists?” and that’s one fight that Republicans (the ones in power, anyway) have internalized to the point where it wouldn’t even occur to them to impeach Obama for merely doing something in the wrong order and, besides, he made the right decision anyway.Report
For American citizens it is inconceivable that that is not a minimum requirement.
Even for non-citizens the list should be public… and include a disclaimer at the bottom: “If you believe your have been improperly identified as a terrorist upon whom we may, at anytime and in any play rain down fire from the sky, please call 800.555.1234.”
If we are going to have death by state, then all those deaths must be public and publicized deaths.Report
“Good morning Mr. Tuttle! You have been identified as a terrorist, and marked for summary execution.
If you believe your have been improperly identified as a terrorist upon whom we may, at anytime and in any play rain down fire from the sky, please call 800.555.1234.”Report
At least she got a receipt.Report
More due process than a lot of black men get with the policeman bullets in their backs. So, a little perspective, please.Report
>>I think the whole “we should at least try the bastard in absentia!” argument still stands up.
US citizens who fight with the enemy in (Congressionally-approved) military operations get to retain full due process rights? That’s pretty revolutionary.Report
The guy we were talking to in the posts I linked to merely posted youtube videos in which he called for Jihad.
This is different from shooting at American soldiers.
Hell, this is different from running away from a cop after a traffic stop.Report
Anwar al-Awlaki provided material support to Al Qaeda. Legally speaking, this is not different from shooting at American soldiers.Report
You’d think that this is something that could be proven in a court of law before killing the guy.
It’s weird. The last few times I’ve been in an argument similar to this one, I’m argued against as if I’m saying “don’t kill him”.
Please don’t argue against my points as if I am arguing for pacifism.Report
Requiring legal proceedings against enemy soldiers is a fundamentally radical idea. I don’t think you’re arguing for pacifism, I think you are arguing that we should remove the distinction between wartime and peacetime laws. Which I believe is an incredibly dangerous idea that will do the precise opposite of what you think it will do.
Wartime does not differentiate between US citizens and non US citizens that have joined the enemy. Wartime does not have due process for the enemy. Wartime does not make use of the peacetime legal system. How do we know that when the commander in chief says he’s bombing a military base he’s not actually bombing a hospital? Because we have a set of military laws and chain of command. This is how war works. If we do not find this proportional, the solution is not to weaken and muddy the laws of war, it is not to declare war in the first place.Report
“Enemy soldier”.
He’s a guy who made youtube videos and gave other people money.
Edit: An *American Citizen* who did these things.Report
This reminds of me how pro-torture folks would to liken waterboarding to splashing someone in the face. If you have to buff any sharp edges off your argument maybe you should doubt the strength of your argument?Report
Intelligence officials had concluded that Mr. Awlaki was an operational terrorist leader who had gone overseas, become part of Al Qaeda or an associated force, and was “engaged in continual planning and direction of attacks” on Americans.
Wow! The evidence for this sort of thing sounds like it would have made for a slam dunk in a court of law! Or, hell, a secret court with secret jurors going up against a public defender who had sufficient clearance!Report
Why is that preferable?
I heard an interesting lawfare podcast the other day dealing with exactly this issue. The author’s point was basically that constitutionalizing this issue significantly weakens the constitutions due process requirements. We start by saying that due process is satisfied ‘in this limited circumstance’ with the sham trial you mention above. But, if we affirm the constitutionality of this sham trial judicially, it is likely to be cited and used throughout the country to weaken due process protections in many other situations.* He give the example of Bush v. Gore, where SCOTUS basically said ‘don’t cite this opinion.’ Despite that it has been used and cited by lower courts throughout the country.
*It’s important to remember that the Fifth Amendment does not tell us what process is due, and that its constitutional requirements are, basically, created by the judiciary.
Ed. I probably shouldn’t say it is ‘likely’ to be misused. Rather, it is possible that it will be misused.Report
Because I argued for the importance of detaining Jose Padilla without a trial and without so much as filing charges because it was so very important that we keep America safe from dirty bombs.
As it turns out, my faith in the system was misplaced.
Why are we fighting, again?
If it’s just because we don’t want to lose, maybe we should consider Total War or, at least, decimation.Report
Boumediene, Hamden and the rest of them all put judicial review on the table for those captured alive in the war on terror.
If the executive doesn’t have to worry about judicial review if they just shoot on sight, that’s a heck of an incentive.
(one which the Obama administration has taken full advantage of. The Gitmo detainees are more a political and diplomatic liability than assorted dead people from the far side of the world)Report
You’re certainly right regarding the incentives. The maxim hard cases make bad law cuts in all directions here.
Part of the issue is it much easier to put in place due process protections when the individual in question is present. An in absentia trial with secret evidence seems like it may not stop any of the actual abuses we are all afraid of, while possibly laying the groundwork for a diminishment of due process as that decision metastasizes into other areas. I honestly don’t know what I think regarding whether due process should apply, and if so, what is should require. But that podcast made me question my initial thinking on the issue.Report
Can you link to it?Report
As far as I can tell, all of the alternatives are seriously ugly. Maybe that’s the least ugly and Bush made a mistake leaving these people alive?Report
…and Treason even has its own special section in the Constitution.
Ultimately, though, it all gets back to the AUMF… Congress gave the President a blank check to wage war against an organization. A check that has been cashed in Afghanistan, Iraq*, Libya*, Yemen*, and a check that was written but hasn’t been cashed in Syria (yet).
And in the curious case of Syria, we may use the AUMF against Al Qaeda (transferrable to ISIS[?]) for Regime change of the people fighting Al Qaeda/ISIS – which even if you allow for the broadest possible allowance of the AUMF – it doesn’t seem to cover.
No one is agruing that an American citizen killed on the battlefield aiding a foreign power requires special legal proceedings; we don’t indict the telephone book of a country against whom we’ve declared war.
But, we’re not doing war here… there’s arguably a battlefield in Afghanistan (still) where there are rules of engagement. But Drones stalking individuals in Yemen on the secret word of the CIA operatives that gave us WMD in Iraq as a just expansion (Iraq Resolution) of the original AUMF is just the sort of government process up with which we are not supposed to put.
At the end of 2015, Obama’s administration floated a new AUMF for ISIS – one that would end the 2001 AUMF and actually have a term of 3-years (or re-authorization). That’s the credit side of the ledger; the debit side is that he waited until his term was basically over – availing himself of all the tools, then attempting to restrict future administrations. This is/was opposed by the usual Neo-con hawks in both parties (but primarily Republicans). But the failure, it lies with Obama. Like Frodo, in the end he preferred to keep the ring. And now the Ring is Trump’s.
I think you could make a case for a dronecution of Awlaki (and others); but in matters of public executions, the case has to be public. We killed Awlaki (and his son) and we are owed that burden.
The same goes for non-citizens whom we target in their non-belligerent homelands. Everyone is entitled to contest their death sentence.
This is bad legislation, bad policy, and a bad way to wage war. This is the real thing that is happening, not all the fake things in your minds that aren’t.Report
We have boots on the ground in Syria, as indicated by the EOD senior chief that was killed last month.Report
Right, I pointed that out a few months ago… the administration has made no bones about broadly interpreting the AUMF for intervention in any country it feels it can justify (as shown in the links I posted too).
But, in 2013, the administration was gearing up for a specific request for Syria (perhaps similar in theory to the Iraq Resolution) and ran afoul of public opinion (and Republican contrariness). So we didn’t get a full intervention, but we also don’t have any guaranty that Obama (or now Trump) couldn’t just go in under the AUMF without a resolution.Report
Attacking ISIS in Syria would be covered by the AUMF (and might be covered by the Iraq AUMF or some other theory on which the U.S. is working with Iraq’s permission to protect it). What Obama was contemplating was using the military to depose Assad, which didn’t fit any existing authorities, other than the controversial “duty to protect” everyone from violations of international norms.Report
Is the Obama administration really using the 2001 OEF AUMF against ISIS? and not the 2002 OIF AUMF? or just doing it because he can and no one’s going to say boo?
Because the whole farce of the Iraq war was that the “nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” were not really linked directly with the nation of Iraq nor its government. ISIS has always been run mostly by unreconstructed Baathists, and organizationally, has been in conflict with Al Qaeda, not in cahoots.
So that would be the ultimate irony if Obama is putting boots on the ground in Syria with the 9/11 legal authority.Report
“Attacking ISIS in Syria”
Yes and no… the AUMF is strange in that it names a specific organization. That organization is Al Qaeda. If ISIS *is* Al Qaeda – which depends on the definition of is, then yes – but honestly… given both the specificity of the authorization and the absence of a term I think it would be better policy to define ISIS – along with geographical bounds and a term. I suspect politically this wouldn’t be hard, but I think we should care about being specific with grants of war.
On deposing Assad, yes, presumably there was some concern along those lines. I’m not sure that the concern was universal in the administration, I’m pretty sure it wasn’t shared by Clinton, and I doubt very much it will be honored by Trump. [Though I could conceive of a Trump scenario where he makes a popular appeal *and* has full backing of congress].
Which is really the whole thrust of this discussion… we (the Congress) has fully authorized unrestricted military force against an undefined organization for an indeterminate length of time… and now we find we can change the target, change the location, and move the battlefield to whatever country we wish. Fifteen years of continual war later, it needs precision and a new consensus.Report
The AUMF doesn’t actually mention any specific organization, which is a huge part of the problem:
~ http://news.findlaw.com/hdocs/docs/terrorism/sjres23.enr.html
The “or harbored” part provides the most breadth, IMHO, by allowing new terrorist groups to be folded into the AUMF by association.Report
You are right, I overstated even the original precision.
Though, it is specific that the organization can’t simply be “bad” but had to be directly involved in the 9/11 attacks. We pretty early on determined that that was Al Qaeda specifically.
But upon further review, I’d say it further calls into question its applicability to ISIS. {If there was anyone actually adjudicating} You’d have to prove that ISIS is definitively the organization that was Al Qaeda – the one that planned the attack; because you couldn’t possibly prove that the organization aided or planned an event that occurred before its inception.
Cutting to the chase, Obama screwed the pooch after he Killed Bin Laden. May 2, 2011 was the day the 2001 AUMF should have died. Any other warfare we wanted to continue conducting should have been reauthorized under new resolutions.Report
@trizzlor
You make a good argument, which I agree with in part.
This is why my criticism of Obama is muted, since I think he has exercised a lot of restraint and common sense.
But we do need new rules of warfare; the ones we have envision a conventional WWII style war with defined combatants and battlefields.
Right now we are just winging it and letting fear and inertia guide the process.Report
>>Right now we are just winging it and letting fear and inertia guide the process.
Agreed. The problem is that our system isn’t very good at dealing with breakdowns like this when they are fairly popular with voters and do not have clear cut victims.
Really this should happen at the legislative level. Congress, together with the military, and executive legal council could would out a new legal framework for how targeted strikes should work in military operations where the enemy is un-uniformed and poorly defined. They have, of course, entirely punted on this because there is no political pressure to deal with it.
At the executive level, Obama has at least gone a long way towards making this transparent. The public now knows the broad strokes for the program, and specific Congressmen are regularly updated on who gets added to the list and why. If they disagree with a decision they have the authority to push for impeachment and/or imprisonment. And, to be honest, if we are at a point where there’s no will in Congress to impeach a president for extrajudicial killing then I doubt any process restriction would work anyway. Presumably Obama could have ended the program like he did with waterboarding, but it’s not clear to me how that would work. He cannot just suspend attacks on US citizens because wartime law does not distinguish between citizens and non-citizens. Suspending all targeted strikes has zero public support. If he did so the blood of every soldier who gets killed doing something a drone could have done would be on his hands. His next opponent would run – and win – on a platform of increasing drone strikes 10-fold, and we’d be worse off than where we started. He could try to build some kind of new judicial system just for drone strikes from scratch, but then he’s legislating in explicit opposition to Congress on matters of war – which *is* an impeachable offense.
That leaves the courts, which have actually discussed the problems of a war with no clear battlefield or victory condition in a lot of detail. But they can’t rule on a Constitutional issue that hasn’t happened yet. And Al-Waliki (a member of Al Qaeda) killed in Yemen (an partner in fighting Al Qaeda) as part of our war on Al Qaeda does not present a compelling Constitutional violation.
So that means wait until President Trump bombs some business adversary in Canada, so Congress can impeach Trump or the SCOTUS can rule in favor of the victim’s family. Or, as usual, come up with a workable alternative system and agitate for our legislative representatives to implement it.Report
Great, let’s think about how that happens. He refuses to go to court, but his family (or Al Qaeda) hires a lawyer to “defend” him.
Chain of evidence problems gets everything thrown out. Answering any of the basic “in court” questions is also supplying information and intel to the enemy. Just explaining what you know about his activities and communications tells the other side a lot. Explaining how you know is worse. He has the right to confront any witnesses and that’s another mess.
So to make all of this work, we pass laws saying he *doesn’t* get to examine evidence, question witnesses, that chain of evidence doesn’t matter, etc…
…and we just trust that the government, armed with this wonderful new tool for depriving citizens of their legal rights, only applies it to terrorists at war with the country.Report
Even as a stalwart liberal, I think that this idea of “lawfare” is unworkable politically, legally and practicably.
The court would be shrouded in even greater secrecy than the FISA court. It would lack even the most basic attributes of a fair judicial process. It would be a mockery of justice.
No, the President gets to own this issue all by himself. He can’t try to share the burden by creating a sham review process. If the President goes too far, then he risks impeachment (and an involuntary trip to the Hague, I guess).Report
1) “We should at least try the bastard in absentia!” I think you make an excellent point. Even some commenters here seem to have accepted the “why are you attacking Obama for killing terrorists” to the point that they don’t even seem to be able to formulate a counterargument.
2) If hypothetically an in absentia trial was able to convict the man, I’m wondering whether there is not a further objection to the manner in which he was killed. To wit, assassination is not a judicial tool. Drone-mediated killing is not execution, which implies that the victim’s capacity to resist or flee has been removed; nor is it a battlefield death, which would require the victim presenting violent or even potentially lethal resistance; nor is it a “resisting arrest” death in which the victim’s violent resistance occurs during an attempt to carry out a judicial process.
As someone noted much later in the other comment fork, it is perhaps a legislative issue to develop the framework for such assassinations, but do you not think it is at present illegal? Although Heaven knows what is in the Patriot Act. And yet, should it not be illegal? As Mr. Bath noted, the fundamental problem here is the logical – and legal – extensibility of these powers to any extraterritorial (not necessarily!?) citizen whose death the executive “thinks hard” about.Report
Being a member of a terror group and hiding out in a land where we’d have to use the army to deal with you is “violent resistance” of the judicial process.Report
Yeah….you should have written this post years ago..
Democracy? We haven’t had that in decades if not a century.Report
You know, back when seventy percent of population couldn’t vote. And legislatures were at least honestly bought and paid for.Report
Indeed…we’ve made a lot of “progress” haven’t we? All this “change” and nothing really has changed.Report
We might remember, however, when a Nobel-Peace-Prize-wielding president compiled a list of his own citizens to kill and the country cheered.
Erm, really? And not the day the president ordered *torture* of the American citizen José Padilla, or decided that keeping him on a military base somehow removed all constitutional protections from him like due process?
I’m somewhat failing to see the difference between torturing someone and killing them, legally speaking. Actually, no, scratch that. At least the US military killing someone could *hypothetically* be legal and constitutional, even if not in this case. Whereas the US military torturing someone is illegal, unconstitutional, *and* a war crime, and is all of those things under all possible circumstances.
Aka, it’s the difference between a police officer shooting an unarmed woman in custody…and a police officer raping a woman in custody. Not to *justify* the first thing, but it is at least sorta *within* the job specifications, even if the justification is not there in those specific instances. The second thing is not within any job specifications at all, and there is no possible way it could just be a poor understanding of the facts or the law or a poorly chosen response.
And I also have to suggest the focus on the fact he’s an American citizen is wrongheaded. Why does *that* matter if he gets due process before his assassination or not? Why does the US military get to do targeted assassinations of *anyone*, just because they nonsensically call them an ‘imminent threat’?
You want to condemn what’s going on in the ‘War on Terror’, feel free, but please notice the lawlessness and unconstitutionality were *built* *into* the entire thing. Literally the second the president *before* Obama decided to do it.
Applying a military overlay onto the entire world and asserting that someone being part of an organization that has attacked the US means they are a member of an opposing military *was always going to result in unconstitutional lawlessness*, because wars are things that exist outside our, or really any county’s, constitutional framework.
Which is why our founders tried to make them hard for this country to start, while still recognizing the obvious fact that we might have to defend ourselves. And why, until this point, we always had limited geographic areas and timespans to war…and on *top* of that, Bush then asserted that specific rules of war we had come up with in the past century didn’t apply.Report
On the one hand, I agree with what @davidtc says here. It’s not like Obama was the first (or second, or third) president to use the office of the President to do things that were illegal, unethical, or immoral.
On the other hand, I can already see that our constant collective reliance on the partisan “But your guy got away with X!” excusing away of any malfeasance by our own team is going to allow Trump to break a hell of a lot of laws and do a hell of a lot of unethical and immoral things, and get away with them scot free.Report
This.
David’s both right AND offbase.
Like when my kids try to point at someone else who is similarly guilty…
“Nope. Nope. Doesn’t matter. I’ll talk to them separately. I’m talking to YOU about YOUR choices.”Report
We are nominating Kazzy to make sure both sides don’t do it anymore.
(Bureau of Don’t Do It Anymore)Report
Guys, I wasn’t saying the fact Bush did something ‘justified’ Obama doing something.
I was just taking issue with this absurd paragraph: But when all is ash, I don’t think we’ll look back and say the Comey letter was the day everything changed. We might remember, however, when a Nobel-Peace-Prize-wielding president compiled a list of his own citizens to kill and the country cheered.
My point is merely that, if there ever is a reckoning, and we want a point we ‘remember’ as the transition point, it’s *torture*. Torture comes *first*. It’s both bigger *and* earlier and just completely unacceptable in all possible manners (As opposed to the US government killing someone, which *can* be legal, either as a penalty for a crime or on the *actual* battlefield instead of their pretend one.), and that is what started this slide.
Or, rather, as I said, the view that the entire world is a battlefield and thus battlefield rules apply started this side, that was just the first, most important, line crossed.
Additionally, the idea that we did not target and kill US citizens under Bush is…dubious. Obama made the process *transparent*, at least, the list. Anwar al-Aulaqi is just the first US citizen that the US government *publicly* killed.
And it is also worth pointing out that of the people tortured at Gitmo, 7 of them have died from ‘suicide’. Of course, there are serious concerns about most of these being ‘suicides’…but, you know what, if you torture someone so badly they commit suicide to make it stop, legally, you just committed murder anyway, at least in my book.
Which means, based on 780 people total going through Gitmo, just imprisoning and torturing José Padilla had a 1% chance of resulting his death anyway. (Assuming all of them were tortured. The US government claims only half a dozen or so people were tortured, but the US government is very blatantly lying about this. But believing their lies would make that statistic much worse.)Report
I’m willing to concede this and in fact see it compatible with my last paragraph. I didn’t say what Obama did was *the* primary milestone. It just is a major milestone–doubly so because these were the actions of someone who was elected to roll back the excesses of his predecessor.
And I think Kazzy and Tod’s objections have merit. If we are not willing to call out Obama, we will see the same pattern later. When Trump does something we don’t like, people will point to Obama as a reason to excuse him. If accountability doesn’t start somewhere with someone, it will start nowhere with no oneReport
@vikram-bath
It just is a major milestone–doubly so because these were the actions of someone who was elected to roll back the excesses of his predecessor.
The president cannot choose to roll back the excesses of the presidency after they are seized. All he can do is *not use them*. Those powers still exist, and are there for the next person.
Congress could, in theory, change laws, and could in fact change the laws that allow Obama and the CIA to do these killings. Which is why I am not *that* concerned about Obama’s behavior there…if we want to stop extrajudicial killings, we can just *make them illegal*. In theory. (And if Obama keeps doing it after that, and no one stops him, it’s *Bush’s* fault…see below.)
(And, likewise, I have to suggest that impeaching the president over things that are *legal* but probably unconstitutional is a bit nonsensical. If Congress doesn’t want him doing that, *change the law to make him stop*, and see if he does.)
The problem is, the real problem here, the law did *not* allow Bush to do what he did. (Or the constitution, or even international law!) And Bush, aka, Cheney, constructed elaborate legal theories about how the executive had some sort of national security power that allowed it to ignore the law.
Which, constitutionally, is nonsense. It’s actually *Congress* that is charged with providing ‘for the common Defence’. The closest thing the executive comes is being commander-in-chief…but the problem is that torture was done by *civilians*, aka, the CIA, so even if he has some special power to control the military in violation of the law (Which he doesn’t.), it doesn’t even *apply* there!
The executive arguable has *some* leeway in how to fight a war, in the sense that Congress probably shouldn’t try to impeach the president, in the middle of a war, for command decisions that slightly go outside some Congressional authorization granted months ago…but setting up a torture system for prisoners is way, way, way outside that leeway. It’s not even something we *think* about *considering* maybe trying to figure out if we should do…and then we did it.
When the presidency reaches the point of *outright criminal behavior*, there are only two things that can possibly make it not happen in the future: Either he is forced out of office over it, or he is convicted after he leaves office. That’s it. The country has to do one of those things. Those are literally the only two options.
Neither of those happened. So, functionally, we still exist in a world where the executive *doesn’t have to follow the law* if it’s connected to national security. (See also *spying*.)
If we are not willing to call out Obama, we will see the same pattern later. When Trump does something we don’t like, people will point to Obama as a reason to excuse him. If accountability doesn’t start somewhere with someone, it will start nowhere with no one
We?
Since when are *we* in charge of impeaching people? Or will be in charge of filing charges once Obama leaves office?Report
There was no single act that Julius Caesar did which lacked precedent from a previous dictator or aspiring autocrat in the two generations previous to himself. And after him, Augustus declared that he had “restored” the Republic, and made an elaborate show of going through the motions of Republican institutions, though everyone by then knew that it was really one-man rule and had learned to (more or less) like it.
That the collapse of the Roman Republic should be the historical analogy which comes to my mind is hardly a thought that comforts me.Report
Bringing his army from Gaul into Italy was a big fishing deal.Report
Caesar could have (and did) say, “Sulla brought back his army from Asia Minor, and camped them around the perimeter of the city on the night before the election. And Marius brought back his troops from Africa, too, just so they could vote for him.” Only he said it in Latin and it sounded so much better than that.Report
During the Civil War, Confederate troops were not tried before Union troops shot at them. No one found that strange because a state of war had been declared. The same is true here. That doesn’t mean that Obama’s conduct is unassailable, but you do have to at least explain why you don’t think the rationale applies.Report
So the union troops would have been within their rights to shoot all military-aged white men in occupied southern states on sight?Report
Not just in occupied Southern States, but in Mexico or Cuba.
We hadn’t declared war on/in Yemen. Why in the hell were we bombing in there?
“Well, because Bush! If you didn’t like the Authorization to Use Military Force, you should have” something something something.Report
No, but that’s a law of war issue, not a due process issue.
The Union would not have violated the due process clause to engage in targeted killing of Confederate Generals and officers.Report
Well, you bring up another good point about our Nobel Peace Prize winning president and his ongoing expansion of an Authorization to use Military Force.
If we collectively agree that AUMF is a universal decree of War to be applied when and where we find necessary, then that base is covered. Then, as @murali notes above, all the world is our shooting gallery.
On the other hand, it seems rather like a second abdication of duty, this time jointly by Congress and the President.
But now is when we should worry about this, not when Nobel Laureates are at the helm.Report
Technically, there was no war declared during the Civil War. Which, per Marchemaine’s point, might make the issue a bit more analogous. I would draw a distinction between shooting at people who are in an army that in practice is waging war and fighting pitched (and non-pitched) battles and killing someone who is allegedly part of a network that is trying to murder people but who theoretically can be stopped/captured before they do their deeds.Report
Yep. We’re all pretty comfortable dealing with the use of military force against clearly identified enemy soldiers, both because there are rules and lots of precedent and because it’s far easier to contain the logic of the killing. Disorganized irregulars, located anywhere in the world, who are not obviously engaged in hostilities until it’s too late and are doing their level best to be indistinguishable from civilians? That’s a horse of a different color.Report
Technically, the Civil War was an armed insurgency, but the SCOTUS ruled in the Prize Cases that it was a de facto war upon the firing on Fort Sumter, regardless of whether or not the belligerents were a nation or whether a formal declaration of war had been made. The war powers are limited by the laws of war, a long-standing one is that one cannot attack a person who has surrendered. There are very few limits to war powers in the Constitution.Report
Whom would war have been declared against? The USA did not recognize the CSA as a government.Report
That’s my point.Report
There is a very good reason why many democratically elected politicians are reluctant to impeach or try the previous President or Prime Minister for any unconstitutional or illegal acts committed in office. Its called the peaceful transfer of power. One of the key parts of democracies and republics that the only real cost for bungling things up during your term of office is that you lose an election. Your not supposed to be put on trial for what you did during office even if those things were bad like launching a war of choice that resulted in international chaos or torturing people. It will simply give bad faith actors a reason to always try the other side once a change of power occurs. And yes, I think the Republicans are cynical enough to try any Democratic politician that can come up with an excuse to try.Report
You know why Trump will get away with what Trump will get away with?
Because you didn’t think that Obama should have been prevented from doing what Obama did because Bush got away with what Bush did.
On the upside, this will allow for President Booker to use nukes.Report
Oh it is a bountiful harvest of BSDI this year. Best ever. Things are looking up.Report
Scale both sides differently, allow that one is worse — even much, much, much worse — than the other, and you know what?
Jaybird is still right.Report
Once you say one side is worse x 3 and scale differently then you are getting somewhere. It’s not that BSDI is always wrong because it isn’t. But like many decent ideas its often thrown out lazily. It’s a way of seeming knowledgeable and above it all without discussing an actual issue.
Will Trump be getting away with profiteering and his kids making bank off of inside knowledge because of Obama: no. Will the congress likely be to deferential to Trump on foreign policy matters: most likely yes. They have in the past but the reasons for that are a bit more complex then just simple BSDI.Report
I think you’re looking at it wrong in order to give yourself a BSDI. I think the way to look at it should be more like this.
Trump will get away with illegal activities because it has become the standard that each party turns a blind eye to all malfeasance done by Presidents from their side, no matter what or how bad that malfeasance is.
The fact that one POTUS is worse than the other is irrelevant. If HRC had been elected and been as corrupt as the GOP was claiming she would be (or as Trump actually is), there would be the exact same amount of calls by Dems to hold her accountable as there will be from the GOP with Trump these next four years.
So basically, everyone at every election has a choice. They can take a stand against malfeasance on their side, or they can make partisan excuses for it (or agree to be silent for a few years, until it doesn’t matter). Everyone always chooses the same way, which is why we still have malfeasance.
Only now we’re going to have malfeasance on a scale we haven’t seen before.
If you’re going to set the game board up to allow for malfeasance, you shouldn’t be surprised when someone decides to really, really, really take advantage of it.Report
I don’t actually disagree with that. People tend to overlook the faults and flaws of peeps on their side. That is pretty basic Human 101. Some of that will always be present. But that has been transmuted, in this election, to every fault of Trump and what he is going to do is the fault of other people. You don’t do that but it is all over the place here. R’s didn’t’ elect Trump, it was all Clinton’s fault. Trump’s egregious actions are the fault of Obama or some such. Like i said, it’s not that BSDI can’t be a fair point, but it can also be a lazy one.Report
“every fault of Trump and what he is going to do is the fault of other people.”
Your having a morality of convenience isn’t anyone else’s fault, and our pointing that out is not an attempt to “defend” anyone.Report
If you show me where i’m having a morality of convenience then that might be something. It’s certainly possible i’m doing that, but show me where then we can start a conversation.
But till then i’ve seen a metric butt ton of comments that Trump is the fault of liberals, D’s, Obama and Clinton. And that sketchy things Trump is or has done is fine because of something some D or Clinton did.Report
We aren’t saying that the sketchy things Trump will (or will want to) do are acceptable-levels-of-bad because of similarly-sketchy things that Obama did (or Clinton might have done).
We are saying that back when Obama did sketchy things, we heard that those things were acceptable-levels-of-bad because of similarly-sketchy things that Bush did (and Romney might have done).Report
Without knowing what sketchy things were talking about its impossible to know what to say. Everybody is prone to overlooking the faults of people on their side. If we get down to specific cases then we can see how much people are overlooking or excusing.
Recent classic example: Clinton’s email server should have sent her to jail vs. Bush era 20+ million emails deleted and private server for the White House shouldn’t have?Report
The answer to most engineering questions is, “it depends”.
22 million emails is a huge number, especially 15 years ago. Assuming 22 emails a day per person, that’s 1 million person days, that’s what… 800 people over a 5 year period?
The best case is we’re looking at a records retention screw up (and btw some or most of them are in the process of recovery, the issue is how much money do we want to spend on this).
Worst case is… what? An effort to sidestep the freedom of information act? Presumably it’s not an 800 person conspiracy.
HRC’s email server was deliberate and determined, and was about 800 emails a month in addition to her emails as head of State. That number seems like a professional level, i.e. not birthday parties and yoga meetings.
It’s very difficult to see innocent explanations for this, especially not when she could have simply had a personal email account on the side. Also releasing these emails would have been more damaging to her election than not releasing them. So releasing the emails was simply impossible, presumably for the same reason that she was determined to have the server. Her other profession was head of the Clinton Foundation, did her work for her charity overlap so much with her duties as SoS that she couldn’t separate them?
Best case that I can see is an effort to shield herself from the Freedom of Information act (I’m not a lawyer but I’m under the impression that she couldn’t claim she was doing this as a defense because that itself is illegal), but even that ignores what was she doing that needed shielding.
Note all of this is separate from the likelihood that Russian/Chinese/North Korean/etc actors figured out that she had her own server (considering her email address showed this, it’s hard to see them not figuring it out), and hacking into her server (it’s not easy to defend against the resources of a Nation State).
I would be very surprised that server didn’t get important secrets leaked, which implies people getting killed. I would also be very surprised if the core reason wasn’t that her job as SoS overlapped with her job as head of TCF.
On inspection, these two cases don’t seem comparable.Report
Comparable (like truth these days) seems to be in the eye of the beholder.Report
Her other profession was head of the Clinton Foundation, did her work for her charity overlap so much with her duties as SoS that she couldn’t separate them?
*sigh*
Clinton was not SoS at the same time she ‘ran the Clinton Foundation’. That statement is wrong in so many ways it’s hard to dissect.
1) Hillary Clinton has never been the head of the Clinton Foundation. In fact, *No* Clinton has ever been the ‘head’ of it. They have only been members (Aka, on the board, it’s the same thing for the CF.) of it. Admittedly, as the *stars* of the foundation and where the money comes from, they presumably have a lot of *sway* in their position as members of the board, but they are not the head of it (Which is a CEO), or even chair of the board or any of the corporate officers except ‘board member’.
2) Hillary Clinton was not a member of the CF at any point *during* or even *before* she was SoS. Bill was on the board to start with (It was originally called the William J. Clinton Foundation), and Chelsea joined the board in 2011, and Hillary joined in 2013, after she left the SoS position.Report
Sure, the Clintons have no influence or connection to The Clinton Foundation at all. HRC never raised money for it, her daughter didn’t use that money for her wedding, it’s just a coincidence that the people HRC does favors for as SoS also give money to TCF, and that those people aren’t humanitarians in other situations.
HRC threw away the election rather than let her 800 emails a month go public because she didn’t really want to be President, not because going public with those emails could land her in jail or would have ended her Presidential ambitions.
/sarcasm off.
Granted, the whole TCF thing is speculation on my part, but you don’t even have potentially innocent explanations.
The moment we open the door to speculation, we have a full time job’s worth of emails, vile people giving Billions of dollars to TCF, and deliberate mixing of professional SoS duties with those people, etc.
Of course HRC could simply have cleared the whole thing up by going public with her email… but apparently that would have been worse than everything she did do.
I mean, imagine that there is a totally innocent explanation and there’s nothing on those emails other than yoga plans and birthday planning. Picture her coming forward with that a few weeks before the election after having let Trump spend lots of time making accusations that she then proved were totally imaginary. She would have totally re-enforced her narrative that he was a loon and she was a solid, stable citizen who wasn’t collecting money in a pay-to-play.
But that didn’t happen. Which means the kind of speculating I’m doing, which for other people led to calls of “lock her up”, was actually the least damaging path forward for her.Report
Sure, the Clintons have no influence or connection to The Clinton Foundation at all.
Your claim is that Hillary was multi-tasking being the *head* of the CF while SoS. This is just so utterly wrong that it’s hard to take anything you say on this topic seriously. She was not the head at that time, and has never been the head.
HRC never raised money for it, her daughter didn’t use that money for her wedding, it’s just a coincidence that the people HRC does favors for as SoS also give money to TCF, and that those people aren’t humanitarians in other situations.
The wedding stuff is, as far as anyone can tell, *utterly made up*. There is a disgruntled CF *who is under investigation by Chelsea for misapporation of funds* that claimed that. No one has any evidence of that at all. It’s literally one person alledging that in an email.
And you’re operating entirely off innuendo vs. *things that have actually been researched*. Despite the Clinton Foundation’s donor list being *completely public*, and her behavior as Sec of State *also* being completely public, more public than the Sec of State normally is thanks to the released email, no one has actually managed to find her doing any actual favors for donors.
There was a investigation into whether or not donating to the CF got people access to the State department. (That’s *access*, not *favors*) I believe we’re *already discussed this*, but I suspect you’ve forgotten:
https://www.washingtonpost.com/politics/emails-reveal-how-foundation-donors-got-access-to-clinton-and-her-close-aides-at-state-dept/2016/08/22/345b5200-6882-11e6-8225-fbb8a6fc65bc_story.html?utm_term=.b7bf92b4109e
The investigation proceeeded to list three. That was all they could find, and they were all completely surreal as examples.
The most obvious to dismissed is the crown prince of Bahrain, which, uh, normally has access to the Secretary of State anyway. He just *additionally* asked via his CF contacts.
The second was Bono. The extremely famous guy and noted international philanthropist. Really not someone who has a hard time talking to the Sec of State about philanthropy.
The ‘worse’ looking one is where a sports executive who had donated to CF wanted help with someone’s visa…except what that *actually* was is that the head of the CF forwarded an email to Clinton’s aide at SoS, and the aide said it made her nervous to do any sort of favors in that manner, and the head of the CF said not to do it.
I.e., the most definitive example we have of someone attempting to use their donation to the CF in order to gain access to Hillary as SoS *made the people involved somewhat nervous about that process and it apparently didn’t happen*. (It doesn’t say in the article, but it seems like, instead of getting Hillary involved, the aide just forwarded the email to normal SoS channels…which is where the visa had already been rejected. I.e., she killed it in a way that allowed her to say ‘I sent it to the applicable people’.)
HRC threw away the election rather than let her 800 emails a month go public because she didn’t really want to be President, not because going public with those emails could land her in jail or would have ended her Presidential ambitions.
This idea that Hillary Clinton would have stopped being hounded by Republicans if she had ‘turned over’ emails is inane.
Here’s an interesting little fact: She was never *asked* to turn over personal email. She *had* nowhere to turn them over to. She was ordered to turn all work-related emails over, and did so.
The distinction, BTW, was *not done by her*, but by her lawyers.
You seem to think that Hillary was ordered to turn all her emails over, and decided which ones to keep. She was ordered to turn all work-related emails over, and handed all her emails to her lawyers to sort through, and then they did so.
Everything *beyond that point* is Republicans making shit up, blaming her for things she was never asked to do and things her legal team did.Report
Granted, the whole TCF thing is speculation on my part, but you don’t even have potentially innocent explanations.
“Hey, have you stopped beating your wife yet? Hmmm? I’m not seeing any innocent explanations here, pal …”
Add: A couple days ago I thought it was a silly exercise to re-litigate HRC’s actions given that she lost. But I’ll make an exception for the Deep Heart of Crazy stuff, like Dark’s claims.Report
The crazy will never die. See the above…. CF donors asked for favors and were denied which proves Hillary something something something. Vince Foster was involved somehow.Report
“If she wasn’t guilty, why did she have Seth Rich steal DNC emails, release them to Wikileaks and then frame Russia for the act only to have him killed to implicate Putin and cover her tracks?”Report
If she’s covered with blood and stab wounds and you’re holding a knife, there actually *are* innocent explanations.
This is….
1) Unethical people give HRC+crew money.
2) Unethical people get serious favors/access to HRC’s power as SoS.
3) There doesn’t seem to be a reason for the 2nd event other than the first.
It’s OK though, I’m sure that when she was accepting that money and doing those unusual favors, she wasn’t doing anything that was provably criminal.
So apparently in your book, that makes her a total innocent… and as luck would have it, we’re probably going to see Trump do the same thing.Report
@tod-kelly , the problem with the analogy is that the GOP has controlled the house for six years and the Senate for two. Yet despite their fanatical opposition to every other thing Obama does from the moment he gets out of bed in the morning to when gets back in at night, they’ve not done a damn thing about drones. The closest they’ve come is ti criticize him for killing these people instead of capturing and torturing them, then holding them indefinitely. The issue isn’t cutting your guy some slack, it’s that there’s a bipartisan consensus that these civil liberty issues aren’t important and that killing terrorists is good.Report
My understanding is that they are actually opposed to him getting out of bed in the morning; in fact, all of their other complaints hinge on this one.Report
Well played . . .Report
You could also say that Obama got away with what he got away with because Bush did or to make a historical and slightly less partisan point, that Gerald Ford started this by pardoning Nixon in advance of any actual trial or punishment. Can you provide evidence that impeaching Obama would have worked the way you want to or that the impeachment of outgoing administrations would not end up as a politicized weapon?Report
Can you provide evidence that impeaching Obama would have worked the way you want to or that the impeachment of outgoing administrations would not end up as a politicized weapon?
Nope.
I’m absolutely certain that an impeachment of Obama for killing an American citizen in a country in which we had not authorized military force would have gotten a response of something to the effect of “But Bush!” and, get this, the defense of Obama doing this sort of thing is the unassailable “but he was killing bad people, why are you taking the side of bad people?”
People claiming that it was about bullshit like “due process” would have had accusations of concern trolling and false piety thrown in their faces.Report
As far as I can tell that hasn’t happened yet.
The Authorization to Use Military Force was basically a blank check with a “fill in the country” section.
https://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_TerroristsReport
So we could, technically, use “Canada” as one of the countries in which we could kill an American citizen for posting spicy speeches to Youtube?Report
Legally yes. Would we? Maybe after president trump declares liberals to be terrorists.Report
Man, who left *THAT* loophole open?Report
Well that’s really the question, isn’t it? I mean I guess we could say the first president to do something unconstitutional left that loophole open. Or we could say the last president to do something unconstitutional left that loophole open. Or we could say the last president to do something unconstitutional and vaguely similar left the loophole open. We could also accept the fact that unconstitutional acts that not enough people care give a fish about are just going to happen. Without consequence. At least until more people start caring about them.
We could actually say that the people that don’t mind extrajudicial assasinations are really fearful, and are sick and tired of being condescended to by those smug constitutionalists, and if you want to change their mind, you better be nice to them. I won’t say that though.
Me, I’d agree with you that the state of affairs sucks. But i’d blame it on human nature being complicated. And an awareness that while that governments constrained by constitutions help uncomplicate things, at least compared to unconstrained government, they don’t completely do so. And then I’d get to work speaking the truth, and trying to persuade. While accepting that my truth may not be acceptable to most.
Who do you think left that loophole open?Report
Well, the original culprit was the creation of the AUMF.
The great thing about an official Declaration of War is that you can end a war. You declare victory. If you’re lucky, you sit across from The Other Side at a table and make them sign a piece of paper.
Put the pen in a glass case at the Smithsonian.
But an authorization of military force? What the hell?
Assuming that Republicans are feckless and stupid, we can lay the blame decisively on them.
Then the House/Senate flipped in 2006 and then the White House flipped in 2008.
Technically, that’s when the loophole could reasonably have been closed.
But the Democrats are feckless and stupid.Report
It’s “extrajudicial” because lawless areas of the world are involved and the problem has reached a scale where the army needed to step in.
One good thing Obama was forced to do was take ownership of the situation. He went into office with soaring left-wing rhetoric and quickly figured out the underlying mess is not Presidents running amok, it’s that there is no pure “judicial” solution here. All the happy “there must be a law” rhetoric is unworkable when faced with the ugly reality.
We use the law where we can, we use the army where we must. They’re both tools of society.
We use “extrajudicial assassinations” because that’s the least ugly solution. We make them die over there because we don’t want them to knock down buildings over here. If you have a less ugly solution, by all means put it on the table.Report
@switters @jaybird
President’s are not impeached for unconstitutional actions because of the whole checks and balances thing. Is there any President that survived a full term without being overruled by the Supreme Court or a lower court?
They are impeached for high crimes and misdemeanors.
I would say that the biggest issue with impeachment these days is that high negative partisanship would make it look like a scam to half the nation, no matter who was being impeached.Report
Is killing an American citizen without a trial (even if zhe happens to not be on US soil) murder?Report
Depends on where in the world you are, and what you are doing.
If a Nevada prosecutor attempted to try one of the drone pilots living in Nevada for murder based on his actions operating drones, I expect that the federal govt would swoop in and quash the indictment. But if the same person killed someone in a bar fight, he’s just another defendant. Upon his conviction, and not before, the killing is murder.
Our old notions of jurisdiction and rules of war don’t work well in an environment where pilots deal death half-way around the world.
If Congress won’t step up and exercise its lawful powers: “To make rules for the government and regulation of the land and naval forces”, then the Executive will. At which point Congress is really not in any position to complain about his actions.Report
If Congress won’t step up and exercise its lawful powers: “To make rules for the government and regulation of the land and naval forces”, then the Executive will. At which point Congress is really not in any position to complain about his actions.
And we get to stop using this as a defense for Obama and start using it as a defense for Trump in 3… 2…Report
Well, shit.
So, drone pilot gets up in the morning near Las Vegas or Tampa, reports to work at her assigned USAF base, pilots her drone. Her C.O. comes to her and says “Intel says, you’ve got an alpha. Lock and fire, Captain.”
Does she have time to consider whether that’s an illegal order? Because she can be held responsible, legally, for her involvement in the execution of an illegal order. The “alpha” target is a U.S. citizen unilaterally named by the executive as a threat, in an overseas jurisdiction where there is a de facto state of war and an argument that the AUMF is in effect.
I don’t have a problem holding her legally responsible for the bar fight she gets into that evening, but I just plain don’t want to hold that drone pilot legally responsible for her split-second response to obey her C.O.’s order. Judicially, I’d labor to find a way not to do that.Report
“Judicially, I’d labor to find a way not to do that.”
yeah, so when the DOJ comes charging into your Nevada state courthouse demanding that you quash the indictment, you grant the application.
The pilot has committed no act that is recognizable as a crime under state law. She was acting as a military officer performing her duties under orders on a federal facility. The UCMJ applies here, not state law.
So no, her actions are not murder. She may be killing people, but she’s not murdering them.Report
Yes, the call is pretty clear if I’m a Nevada judge applying state law: this is above my pay grade.
It’s less clear if I’m a Federal judge asked to determine if there was a violation of a treaty or the laws of war. That’s within a (now very unhappy) U.S. District Court judge’s pay grade.Report
They hold drills as to how and when to refuse an unlawful order.
There is very little thought attached.
The caveat is that “unlawful” typically means opposed the the UCMJ.Report
Also, refusing an unlawful order is more along the lines of refusing to give consent to a police search of your person or property. You can’t actually stop the thing happening, or avoid punishment for interfering with the activity; all you can do is declare that you Did Not Consent, which matters mostly for the criminal trial afterwards.Report
Who do you think left that loophole open?
Which loophole? John Adams went to war with France without a declaration of war. Thomas Jefferson went to war with a non-state entity called the Barbary pirates, initially without legislative approval. Jefferson used the military to capture Aaron Burr, explaining afterwards: “strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country in danger, are of higher obligation.”
Andrew Jackson invades Florida without authority, and was ultimately justified by the conclusion that Spain did not have control over its territories and its natives. When Jackson is questioned about his authority to maintain martial law in New Orleans, he imprisons the judge. James Polk manufactured a war with Mexico on faulty intelligence.
Maybe there is no loophole. Or maybe there is something about human nature or politics that is irrepressible?Report
According to the AUMF? Yes.
However there are lots of other treaties and laws, presumably there’d be problems somewhere. Just for starters going to war with Canada is problematic (and that’s what you’re suggesting).
I assume with any 1st or 2nd world nation, you just ask the police to arrest someone and have the courts deal with it. We’re not killing people with drones in spite of having better options, we’re killing people with drones because we don’t.Report
Okay, so we had to use a drone in Yemen because we don’t have an extradition treaty with them?
That’s an argument that I don’t have an immediate counter-argument to.
I still think we should have tried the guy, even if in absentia, before we did so.
Maybe formally accused him of treason or something on the House/Senate floor.
Oooh! Oooh! Maybe put out a letter of marque/reprisal!Report
The Military does not have to (and indeed, can not) try everyone before they kill them.
Trials involve rules of evidence and laws which assume police and the rest of the legal system are able to control the overall situation, including crime scene and witnesses. Trials allow defendants to question witnesses and examine evidence.
Trying to apply those to a military situation leads to insane results. The prosecutor for the first world trade center bombing reported that the “defendants” used the legal system to find out what we knew about Al Qaeda as a whole.
If they find out we’re monitoring their communications, they change them. When Bin Laden realized we knew who he was, what he was doing, and where he was, he fled and retooled.
Using the legal system’s rules results in smarter, better organized terrorists, just like they would if we applied them against any army. Just because Al Qaeda is a group of criminals doesn’t mean they’re not also an army.Report
I’m not calling for “everyone” to be tried before they are killed.
I’m calling for “American Citizens who are not directly engaging in violence who are in countries where we have not declared war to be tried before we have them assassinated”.Report
The army doesn’t need to wait for a soldier to pick up a gun and shoot back before we shoot him, and we *have* declared war on AQ/ISIS. Joining this group means you have taken up arms against the United States and it is legal for the army to kill you.
If you want access to the Justice system, then you have to be willing to subject yourself to it. Hiding in a (literally) lawless part of the world for the purpose of avoiding Justice means congrats, you’re successful and the Justice system has no say.
The root cause of this problem isn’t the President wants to be able to kill people outside the law binding him. The root cause is we’re at war. The usual “war” rules apply, and some of them are pretty ugly… but they exist for good reason.
It’s a bad idea to try to change the laws and rules of war because people want to pretend we’re not at war.Report
It’s a bad idea to try to change the laws and rules of war because people want to pretend we’re not at war.
THEN DECLARE WAR.
STOP PRETENDING WE’RE NOT AT WAR.Report
>>THEN DECLARE WAR.
This is a really odd argument. The laws of war (Geneva, etc.) apply whenever there are hostilities, regardless of what one chooses to call those hostilities. The reason an authorization of force is preferred is because it declares hostilities while still significantly restricting the president’s power *domestically*. A full declaration of war essentially declares a state of emergency, and allows the president to do all sorts of martial law stuff in addition to what the AUMF allows overseas (see here: http://www.au.af.mil/au/awc/awcgate/crs/rl31133.pdf). In fact, a declaration of war would explicitly allow the president to target enemies within the United States, whereas the AUMF is restricted to foreign, military action. There seems to be a common misconception that a declaration of war defines a specific conflict parameter whereas an AUMF is more broad, when in fact it is the opposite. Most declarations of war were written to allow the president use of any and all necessary force for as long as is necessary; whereas the AUMF falls under the War Powers act and therefore gives Congress much more leeway to call the operation off or dictate how force can be used.Report
Are we at war or not?
Shouldn’t this be an uncomplicated question rather than a really complicated one?Report
I don’t see what’s complicated about having one set of statutes for military force within specific parameters and a separate set of statutes for military force which involves the nation at large. I still don’t see how the specific flavor of military force has any impact on this discussion.Report
The trial is what establishes specific parameters when it comes to American Citizens.
If you think that that’s not important right now, please understand that my suspicion is that you will.Report
“American Citizens” is very much the wrong thing to claim makes a difference.
Take Green Card holders (or illegal immigrants) on American soil. It’s unreasonable to think the gov can kill them when it could have them arrested/jailed/tried.
The important question should be whether or not the gov has alternatives inside the legal system. If it is possible to give someone a meaningful trial, then we should.
But “meaningful trial” can’t end with “we can’t jail him because he’s outside the reach of the Justice system and we’d have to send in the army”.
We should not pretend that the entire world is a battlefield, that the army has any business blowing people up inside of first world or second world nations where there are alternatives.
The issue should be what to do when facing a total failure of law, i.e. failed states and/or lawless lands. Lands controlled by law are clear, battlefields are somewhat clear, what’s not clear is the whole “no law, not on a battlefield, but engaged in war crimes”.Report
The army doesn’t need to wait for a soldier to pick up a gun and shoot back before we shoot him, and we *have* declared war on AQ/ISIS. Joining this group means you have taken up arms against the United States and it is legal for the army to kill you.
Uh, actually, the army *does* need to either wait on them to engage in direct hostilities *or* have them be in uniform, because it otherwise can’t tell who is a civilian, or even a uniformed non-combatant like a medic or chaplain.
Additionally, at some point you really are going to have to stop conflating AQ and ISIS. ISIS has never directly attacked the US that I am aware of.
And, technically speaking, we haven’t declared war on *anyone*. At all.Report
The AUMF is only a page and answers all of this. The Constitution says Congress needs to declare war, it doesn’t specify the form that needs to take. The AUMF expressly gives the Prez permission to take the army out to invade/destroy countries and kill people. That sounds like “war”.
From wiki, the AUMF says “authorizes the use of United States Armed Forces against those responsible for the attacks on September 11, 2001 and any “associated forces”.
AQ-in-Iraq is clearly an associate of AQ.Report
The AUMF is only a page and answers all of this. The Constitution says Congress needs to declare war, it doesn’t specify the form that needs to take. The AUMF expressly gives the Prez permission to take the army out to invade/destroy countries and kill people. That sounds like “war”.
Congratulations, you have successfully answered the question of whether the AUMF was legal under US law, a question no one was asking.
The AUMF is not, however, legally a declaration of war. (It couldn’t possibly be, it doesn’t even *name a country*.) Th Iraq resolution, likewise, is not declaration of war, it was permission for the President to use the military in a specific way. (Although it at least named a specific country to use the military in.)
Declarations of war are statements *you send other countries* informing them that you are at war with them, or you are at war with them if they do not immediately take some specific action. (Often that action is ‘Stop committing acts of war against us and get your troops out of our country’. So it goes.)
We have basically stopped issuing declarations of war, aka, ‘declaring war’, and now we just start our wars with an *act* of war, aka, by sending in our military.
EDIT: Additionally, neither of those was a declaration of war because they didn’t state a state of war existed. They said the President *can*, *if he wishes*, enter hostilities, causing a state of war to exist. Both those authorizations could have been followed up by the president doing nothing. Ergo, they cannot be declarations of war.
From wiki, the AUMF says “authorizes the use of United States Armed Forces against those responsible for the attacks on September 11, 2001 and any “associated forces”.
Some wiki may say that, but the actual AUMF does *not*. Here is the actual text:
IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
https://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf
There is nothing in there about ‘associated forces’. The word ‘associated’ does not even appear in the entire text of the AUMF. Hell, the word ‘forces’, as a noun meaning ‘group of people’, only is used (twice) in the phrase ‘United States Armed Forces’ , and never in reference to the attackers. (‘Force’ appears three times, twice by saying the name of the act and once in the ‘all necessary and appropriate force’ part quoted above.)
In fact, removing the non-operative preamble, the title definition of the act, and the boilerplate about how this authorization is issued under the war powers act, and the thing I quoted *is* the entire text of the AUMF. It is the only part that does anything.Report
Where does the Constitution say we can only declare war on countries?
If it helps, Wiki says “War is a state of armed conflict between societies” (as opposed to countries). As far as I can tell, the idea of “War” predates the creation of nation states, it even predates humanity.
Sounds like a personal definition.
“Aided”, “such organizations”, and “in order to prevent any future acts of international terrorism” amount to the same thing.Report
The people operating outside of a Justice system doesn’t mean they are operating outside rule of law. Also just because a nation state is operating inside a Justice system doesn’t mean they are operating within the rule of law.
I hold no boundaries to the chainsaw teeth of Karma chewing ‘important peoples’ asses to pulp for just this ignorance.Report
Well, damn. That’s what I meantReport
Sure. Impeachment has always been an impartial judicial act rather than a political one, right up until Obama.
The world began in 2008! (Or 2000 at the earliest.)Report
An impeachable offense would be if Obama killed someone in lieu of using the justice system, but as far as I can tell that hasn’t happened. If cops have control then he uses cops, not drones.
Judges can’t wear their robes on battle fields. If you’re hiding in a cave for the express purpose of preventing the justice system from having access to you, then the justice system doesn’t have access to you.Report
Given that the AUMF says the President is “authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”
I don’t think you could get an impeachment for al-Awlaki; now, his sixteen year old son? Still probably not.
But in a well governed polity, we might note that in the excitement to go after Bin Laden in 2001, that maybe we wrote some of the terms a little too broadly – I mean, everyone *knew* what we meant – but then we didn’t really expect it to be the primary foreign policy vehicle in 2016, did we?
Maybe the AUMF needs revisiting and maybe even an expiration date so that we can discuss another AUMF in light of whatever new circumstances in Yemen, or Libya, or Syria might justify vigorous Kinetic Actions.Report
Is Al Qaeda still around?
-Yes (although they’ve been renamed).
Are they still killing people and destabilizing countries?
-Yes.
Are they big enough and dangerous enough that we need armies and not cops to deal with them?
-Yes.
If we leave them alone will they start knocking down buildings in the US again?
-They’d probably try if they’re not busy executing Christians and enslaving women.
The problem isn’t with the AUMF, the problem is with the reality. All the wishful thinking in the world can’t return the situation to what we thought it was before 911.Report
They are still around.
After 15 years of battling the most powerful military superpower the world has ever known.
What would “victory” look like?
Thats a serious question.
What sort of events would have to transpire for us to declare that we have triumphed?
What could we do differently to bring that about?Report
The American flag over mecca is the only answer I suppose.Report
Nothing bad could possibly happen after that spectacle. No sirree.Report
Well… ya gotta understand….they didn’t pay their carbon tax.Report
I did not say it as a good thing. Just thats what total victory would look like.Report
We’ve done this before, i.e. had serious conflicts with non-state actors (see below). We’re fighting a movement, not a state actor. The conflict will end when Islam no longer inspires people to go out and enslave/murder/etc on a big enough scale that we need the army to deal with it.
Part of dealing with this should involve state building. Part of it is just letting generation after generation of fanatics kill themselves uselessly. Part is giving Islam the time to reform.
The barbary wars.
https://history.state.gov/milestones/1801-1829/barbary-wars
The Anarchists, who assassinated President McKinley.
https://en.wikipedia.org/wiki/Anarchism_in_the_United_StatesReport
The Barbary Wars were directly against states. They were pretty darn traditional conflicts and behaviors for that age.Report
The white people, who murdered four little girls by bombing a church. But we foolishly stopped short of total victory.Report
The executions of American citizens and targeted assassinations are one area where I disagree with Obama, and always have.
However it needs to be stated that this wasn’t a rogue executive, it wasn’t something done secretly, or in isolation. Obama was as mentioned above, more limited and cautious in his use of the extra-judicial tools.
The problem again lies with the American people, who have given their approval to this sort of thing over and over.
I had hoped that the hysterical fear that led to the Patriot Act would have died down, but I didn’t count on the fact that when warmaking is easy and painless for citizens, it becomes the go-to tool for nearly any problem.
So even now we hear howling for us to DO SOMETHING about Syria, to GET TOUGH and KILL SOMEONE, somewhere, anywhere.Report
This seems an odd mirror to the post-election hectoring about “needing to listen”.
It’s not like Americans don’t know this is happening. They’re quite aware. They’re pretty much okay with it.
Talking about impeachment is going to get you (generic you, not you in specific Chip) nowhere, because the American public is going to roll their eyes and say “Crazy much?”.
Understanding why the American people don’t care might get you somewhere. Why they, by and large, really approve.
It’s also really depressing, so perhaps talking about impeachment is a lot more cathartic.
(And kind of inexplicable. He’s out Jan 20th. What’s the point of railing for his impeachment at this date? This stuff’s been known for years. It’s hard to take it seriously when, to be blunt, a serious person would have called for impeachment many years past. Not a month before he leaves office.)Report
I should have stated, I am NOT signing on with the idea of impeachment, at all.
I AM accusing the American people of being careless and reckless in warmaking.
Which, I understand, gets an even bigger eyeroll but hey, that comes with being a minority opinion.Report
“The problem again lies with the American people, who have given their approval to this sort of thing over and over.”
Tacit approval perhaps, but not explicit. I don’t recall any congressional hearings or votes when this was discussed BEFORE it was actually done. And, no, having congress not do anything or even if they agree with it, or fund it, don’t mean “the american people are ok with it”. Nor do polls. Few people actually have seen what a bomb does to a bunch of party guests in someone compound.
By that logic, the american people are ok with bombing the chinese embassy the former yugoslavia and doctor’s without border’s hospitals.Report
Fair point, that the American people (here sweeping my arm grandly across 300 million citizens) are mostly ignorant of what our government does with the authority we give them.
But thats also kinda the point, in that the information exists, it just doesn’t interest anyone much.
How many Americans even know we have been in a more or less continual state of war with anywhere from 2 to 5 countries, since oh, forever?
How many Americans are demanding Congressional hearing? Has ever a candidate won or lost an election depending on where he stands wrt drone strikes in Yemen/Afghanistan/Iraq/Pakistan/Country of Choice?
The warmaking is largely out of sight and imperceptible to most Americans and we’ve grown lazy and reckless in our use of it.Report
Agreed.
We also have had/are conducting black jobs destabilizing counties-Nicaragua, Iran, Libya, etc. and nobody seems to give a damn. It’s also why you don’t see video of coffins coming back to the US anymore. It’s become “background noise”. Think those who are generally free to operate are going to allow the american people to inquire find out what they’ve been up to? Nope.Report
Do you actually have evidence of these, or are you just making shit up??Report
Nicaragua? The Contras. Need I say more.
Iran? The Shaw.
Libya? Dude, that shit happened like 2 years ago.
Do I really need to to provide “evidence”?Report
Roger. Thought you were more talking present ops than twenty-year-old ones.
(and Libya was a bit aboveboard).
Hey. You forgot India (that’s actually not CIA. That’s the Powers that Be). Royal clusterfuck that.Report
No worries. I’ve been around and I remember shit.Report
My phone almost disappeared across the event horizon of this singularity.Report
Its kinda like if magneto was to say hey now wheres you evidence that mutants hate you, other than all that stuff I did and said.
But lucky me, the kindle has paradox absorbing circuts.Report
This may be my favorite comment ever.Report
@hoosegow-flask
I’d find it amusing if Kim didn’t cause me such utter despair most of the time.Report
Saul,
One dogecoin for you. It’s the internet coin of sarcasm, and may it bring you happiness. If you like, spend it drilling wells in Africa.Report
Who are you, and what have you done wth Kim?Report
Was it you who was pushing the importance of the monopoly of force or was that someone else? Because it sounds a lot like you want people to push back against the things you want people to push back against, all else is justified monopoly of force.Report
So, Hillary lost because liberals are out of touch with the White Working Class. And they should impeach a president for killing terrorists.
Uh-huh.Report
Incidentally, although no one has mentioned the term (Although oddly it was quoted above.), what we’re actually talking about what the president is doing under authorization of Congress is, really, a *bill of attainder*.
A bill of attainder is an act of legislature that declares a group or an individual guilty of a specific crime, and declares punishment for that crime.
Those are…really really unconstitutional. I don’t mean in the sense of ‘the Courts say they violate due process’ unconstitutional (Although they would), I mean they are explicitly banned, in Article 1 Section 9, right next to post ex facto laws.(1)
But Congress decided to get around that by, instead of attempting to frame their action within the *legal* system, instead decided to frame it in a *military* system of war. Congress didn’t declare AQ *criminals* that should be *executed*, that would be completely unconstitutional…they declared them *combatants* that can legally be *shot*, and this is *very different*, somehow.
And then Obama went a step farther and actually had the *executive* start listing individual names. But, again, it’s somehow under a war paradigm (Despite that not being how war works *at all*. You don’t kill people *by name* in a war.), so it’s supposedly not a bill of attainder. (Or violation of due process, I guess, being those people being selected by the executive and not the legislative.)
Two words for this interpretation: Bull. Shit.
It was insane enough to declare war on a group, but individually targeting soldiers, by name, outside of combat, is not how war even slightly works. The entire war paradigm has been invented so we can avoid the fact that Congress actually wrote a bill of attainder against AQ for murdering US citizens, and a bill of attainder against individual people for plotting against the US and helping plotters against the US.
1) Although oddly *impeachment* is technically a bill of attainder…but it’s one where the punishment is solely limited to ‘removed from office and barred from future office’.Report
Interesting comment; probably confirms my bias that the AUMF is just a bad way of conducting whatever business it is we’re trying to conduct.Report
“You don’t kill people *by name* in a war”
not remotely trueReport
Do you really not see the difference between hunting down a person *somewhere in the world* and killing them as they’re just walking along, and shooting down Japanese bomber (An entirely valid military target), with just some extra effort to track it down because of who was on it?
Moreover, Yamamoto wasn’t really targeted by name, he was targeted *by rank*. He was the commander of the opposing forces. Purposefully killing the commander of the opposing force in combat has a long history in warfare, and it’s not frowned upon in the slightest. (Well, except by the people who get killed, presumably.) It’s why, in Vietnam, US officers would hide rank insignia in camp…so the snipers wouldn’t aim for them. All perfectly legal and accepted in war.
What war doesn’t have is any sort of history of writing down the names of specific people *outside* of combat and tracking them down to kill them. That is not generally thought of as ‘war’ at all…that’s actually called *assassination*.Report
>>What war doesn’t have is any sort of history of writing down the names of specific people *outside* of combat and tracking them down to kill them.
Yes it does:
https://en.wikipedia.org/wiki/Operation_Anthropoid
Moreover, I’m not really seeing this *by rank* versus *by name* distinction. Al Waliki was targeted because he was involved operationally within Al Qaeda, he wasn’t targeted because he was Al Waliki. His convoy was a valid military target because the government of Yemen has partnered with our military to target terrorists as part of the AUMF.Report
Yes it does
That article repeatedly calls it an *assassination*. Which it was.
It was carried out by the Special Operations Executive, which was a special intelligence service. (think CIA, or rather OSS since we’re talking WWII)
Assassinations are not war. Assassinations are things that can happen *at the same time* as war, as part of the war effort, but they are not themselves war.
The British *assassinated* Reinhard Heydrich. (And good for them.)
Al Waliki was targeted because he was involved operationally within Al Qaeda, he wasn’t targeted because he was Al Waliki.
You’re acting like Al Waliki is the only person we’ve targeted this way. He’s not.
The problem is not one specific person. If one person had been assassinated because they were involved in AQ, whatever. Especially if it had been done in a less public way.
The problem is that we’ve set up a specific assassination industry, with a giant list of names. Additionally, we’ve decided to ‘assassinate’ people via bombs dropped from the sky, causing large amounts of collateral damage and additional deaths, which is not something that assassination usually has. (The most-dangerous-to-onlookers normal form of assassination is a car bomb, which might kill one or two other people…and those are seriously frowned upon vs shooting or poison, exactly because of that.)
Here, we’re dropping bombs from the sky on *civilian events* like weddings, and pretending it’s justified because it’s part of the war effort. Not only does that show a troubling lack of concern about civilian casualties *within* the framework of a war, it’s something that isn’t under the rules of war at all. It’s an assassination. And once we’ve blurred the lines between legitimate combat targets and an assassination, of course the lines get blurred a bit more about civilians.
Assassination is something we used to *shy away from*. And, in fact, we *still* officially do not assassinate people in this country. The CIA is not ‘supposed’ to assassinate people…which means it does and doesn’t tell anyone, but the amount is low enough it’s kept under the radar.
But now, we’ve set up assassinations *within the framework of war*, and denied that is what they are.
—
I’m starting to suspect that I have entirely different issues with this than everyone else here. Everyone else seems to have an issue with ‘an American citizen being killed’, but, guys, in reality, the CIA has killed *dozens* of American citizens. Sometimes via assassinations, sometimes they were caught selling secrets and didn’t go quietly. I have no real problem with *one* American being killed by the CIA, especially not one working for AQ.
I’m okay with the intelligence community blurring lines, and us not actually looking too close at that. *That is what they are there for*. I do, however, have a problem with the US government asserting the right to make a *kill list* and put whoever it wants on it, justified as ‘an authorization to use military force’. (An authorization with no checks and balances.)
It’s sorta my objection to torture. I’m sure CIA officers slapped around a few people in the field and didn’t tell anyone. I’m even sure that a few people in official CIA custody got slapped around, and some people got lightly reprimanded for that with a wink/nod. I am not particularly concerned about that, because that is a bit different than an *entire torture framework* being built and the US government asserting *that is legal*.
There is a difference between the choices we make occasionally in the dark, by the people who are making life and death decisions to protect us…and the choices to *normalize and make official* that sort of behavior and scale it up to any level we want.Report
As we target the enemy more and more precisely, we get more moral, not less.Report
I think our intuitions about this are a holdover from the days when a) armies lined up in an open field and charged at one another and b) when we operated on a morality of honour instead of a morality of utility.
The first is a thing of the past. When a great deal of modern warfare is about drones and snipers, the distinction between warfare and assassination seems (if not actually is) arbitrary.
The notion that it is somehow intrinsically better to face a person in open combat than to sneakily kill that person before he has a chance to defend himself is not defensible outside of an archaic system in which battles are meant to somehow be “fair”.Report
The fact that war has changed can’t mean that we no longer need any kind of limits on the scope of when and where and upon whom we can employ lethal force, though. Does guerilla warfare mean that we can summarily execute civilians that we suspect to be irregular combatants? If not, why not?Report
The fact that war has changed means that the distinction between war and assassination is not the kind of thing which limits the scope of when and where and upon whom we can employ lethal force. We need other sorts of principles which perhaps apply equally in war and non-war like situations. i.e. questions of proportionality, necessity, just cause etc.Report
Okay. I’ma give you some examples. You’re going to say whether assassination is morally okay or not.
1) Computer professional, working in a critical service area, for a company you don’t own.
2) Pedophile, running a pedophile ring and using it to blackmail people into making really shitty movies. (Lost Boys)
3) Parent who pays someone to murder their child.
4) Said murderer, who shot a snuff porn to make extra money off killing a child.
Perhaps one ought to expect some of these to be dealt with by law enforcement. Experience leads me to believe that ain’t gonna happen (Clinton got to walk, after all).Report
The fact that war has changed can’t mean that we no longer need any kind of limits on the scope of when and where and upon whom we can employ lethal force, though.
Bingo. We’ve never had this discussion, because assassination is something that government generally didn’t do. Not out of any moral sense, but because the leadership doesn’t want to…because if you start assassinating their leaders, they will assassinate *you*.
It is possible, if you tilt your head and squint, to notice that the rules of war actually seem like a really good way for people in charge of countries to *risk other people’s lives instead of their own*.
The entire concept of war is, functionally, a scam.
Leader #1: I’ll get some people, you get some people, we’ll have them fight to the death, and whoever’s side wins gets to own that valley and the loser has to pay some reparations.
Leader #2: Sounds like a plan to me! But we really should start following some rules, we’re losing a lot of uninvolved workers. How about we declare civilians off-limits? And maybe keep not-killed soldiers and give them back later?
Leader #1: Deal!
Unwashed masses on both sides: Wait a second…what do *we* get out of this?
Leader #1/#2: You’re doing it for the glory of your country to stop those people on the other side from stealing land that is rightfully mine…erm, rightfully yours! They dress differently and have different customs!
Unwashed masses: *gasp* We have to stop those monsters!
(Yes, yes, some wars are in defense of self, or defense of others. But that just means there is only *one* side acting like this. And let’s not pretend all of our wars were justified.)
It is entirely possible that we’d be better off if, instead of a tradition and history of war, we had a tradition and history of just assassinating people who tried to lead their countries to war. (Both in the targeted country assassinating the *other* leader, and, hell, people assassinating *their own* leader if they tried to start one.) That really seems like a much better outcome for *everyone* involved, except the aforementioned leaders.
But…we don’t. That isn’t what we do. And that isn’t going to change. Leaders of countries are too able to insulate themselves. We can’t just discard all the rules of war because we wish something else was true.
And the reason they have changed is simply that leaders are now *so* well insulated they cannot be targeted. That’s it. That’s why assassination is sneaking in as acceptable…because AQ cannot respond by killing the president.
Does guerilla warfare mean that we can summarily execute civilians that we suspect to be irregular combatants? If not, why not?
It is worth pointing out that the US hasn’t ratified the Fourth Geneva convention, or Protocol I…the stuff that actually tries to deal with guerilla forces. (Whether or not countries have to *sign* each Geneva before being bound by it is an interesting question, and the general consensus is no. The Geneva protocol are accepted enough that they are binding international law on *everyone*, and if the US tried to do something that wasn’t mentioned in Three but disallowed in Four, they wouldn’t be able to argue ‘We didn’t ratify Four, only up to Three!’)Report
Because it wasn’t possible to assassinate armies’ middle management before, much less the heads. You needed to level villages to kill individuals, so we leveled villages.
War predates humanity, some of our chimp relatives hold wars.
IMHO Humans have had war to such a degree that it’s deeply affected our evolution and our instincts. That’s what it means when we’ve had periods of time when the lifetime “murder” rate was 25%, which basically means half of all men die in battle.
911 showed we don’t have a choice but be at war. They’re going to sneak in and knock down skyscrapers if we don’t kill them, so we do. We use Drones because it’s cost effective and more ethical than burning down villages… but if burning down villages was the alternative to 911, we’d do that.
The 4th was written after WW2, I doubt the 4th deals well with either Drones (which were impossible) or AQ (who as a non-state actor in an uncontrolled territory wasn’t expected).Report
So your position is that because the old rules governing when and how we could apply deadly force in war are out of date and impossible to apply to counter-terrorism, there should be no rules at all? If not, what rules should there be?Report
My point is that the usual rules apply, and work, pretty well as is.
1) Use the police where we can use the police.
2) Being a member of the other guy’s army means we can shoot you on a battlefield if there’s a war on.
3) AQ has decided and declared that the entire world is a battlefield, so that’s basically anywhere where we can’t use the police.
Using drones to kill individuals is MUCH less ugly than sending in armies or leveling villages. That it requires we know their names is a pointless quibble. Us not knowing someone’s name never meant that they didn’t have one.
This war could easily last many decades, maybe even centuries. Understand that, accept it, and move on. The enemy has a vote in whatever happens and we can’t force peace on him against his will.Report
Asserting that the AUMF allows the president to unilaterally decide that any person, anywhere in the world is a member of Al-Qaeda or affiliated groups without any sort of judicial process, then dropping a bomb on their house is “the usual rules?” This makes a complete mockery of the law of war. If dropping bombs on wedding parties in Pakistan is within the existing laws of war, then so was My Lai and the firebombing of Tokyo.Report
Hardly “anywhere in the world”, more like “any battlefield in the world where the police have no power”.
What was the “judicial process” when we bombed Saddam’s house during the gulf war? When we sent a snuff squad in to kill Bin Laden? Or if you want to be really nasty, when we firebombed Tokyo during WW2?Report
Police don’t have any power over Snowden or Assange.Report
Yeah, actually they do, just not *our* police.
Snowden and Assange are subject to the laws of the land where they are and the government who controls that land. Russia doesn’t need an army to deal with Snowden, their normal claim of monopoly on the use of force would work just fine.Report
Where is your qualifier that it only applies where police power is ineffective or impractical coming from? I get that such a limitation would certainly make this doctrine more palatable, but it doesn’t seem to based upon anything in particular. Moreover, what makes a given place a battlefield?Report
Thus far observation. Part of this might be “cost effectiveness”, but using Drones to kill people in Canada would be an act of war.
It’d be announcing to the world that Canada doesn’t have a monopoly on the use of force in their own country. That’s basically the definition of a failed government and/or civil war.
Unfortunately AQ gets a vote on that one. In practice it’s anywhere where AQ has set up shop and they’re too strong to be handled by the police.Report
It seems to me the whole premise of an AUMF is that we give the executive the right to designate military targets and execute those targets as they see appropriate. If the target is in violation of the code of military justice then either someone within the chain of command will defy the order, or it will be prosecuted as a war crime retroactively. This is kind of the whole point of war – it is a state of emergency where most of due process is back-loaded until the state of emergency is over. Does bombing an enemy convoy that’s transporting the propaganda minister go against military or war crimes law?Report
Ordinarily, something like the AUMF gives the executive to identify and attack targets at their discretion while still being subject to the laws of war. I think we all agree that the traditional understanding of those limitations is a poor fit for conflict with a terrorist group, but that is being used by the Obama and Bush administrations to essentially read all limitations out of existence. It is one thing to take an enemy soldier prisoner and hold him until the cessation of hostilities. It is entirely another to take an enemy person, who was not wearing or uniform or obviously engaged in hostilities at all, and hold him until the cessation of hostilities when the official cessation of hostilities is impossible and a de facto cessation of hostilities will always be inherently a matter of live political debate. Using the first circumstance to justify the second is to make the laws of war a nullity and to undermine the purposes for which they were adopted in the first place.Report
I agree that there is not a clear definition of when a conflict with an uninformed enemy ends, and the courts have so far not attempted to constrain the executive on this. But in the specific case of al-Awlaki’s death in 2011, the US military was clearly still heavily engaged in operations against Al Qaeda in Afghanistan as well as against Al Qaeda AP via a partnership with Yemen. This wasn’t a lone drone flying into a peaceful, unaffiliated nation. Since the courts and Congress have punted and the strike is within the bounds of international law, I’m still not seeing the case of impeachment.Report
Our battle against the GOP never ends. We have always been at war with the GOP.Report
I’m not sure “fair” is the right word. In the old system, nameless peasants are ok to kill en-mass; named nobility are not.
Or maybe it’s just knowing someone’s name gets rid of some of the mental disconnects we use to justify why it’s ok to kill someone. I suspect we’re starting to get into instincts here.Report
Technically, we have officially banned political assassinations.
First under Ford, strengthened under Carter, and then made downright “NO LOOPHOLES!” by Reagan.
Not that anybody cares about that sort of thing anymore, of course.
If Ford, Carter, and Reagan could have comprehended 2016, etc, etc, etc.Report
The key word there is “political”. Members of the military, especially officers organizing war crimes, can presumably be blown up, even deliberately.
Keep in mind it’s AQ who is wholesale ignoring the rules of society and war.
I’m not comfortable with blowing up buildings full of civilians for the purpose of mass murder (i.e. 911). I am comfortable shooting people who do that. I’m not comfortable with slavery/rape as military tools (ISIS), I am comfortable with shooting people who do that.
I’m even comfortable with knowing their names before we shoot them, or blowing them up with some remote controlled robot. If you have better ways to deal with ISIS and AQ, by all means suggest them, but the alternative of living with mass murder/slavery/rape/genocide/etc is a non-starter. Ditto getting lots of American soldiers killed so that it’s less of a one sided match up, there’s nothing ethical about getting American soldiers killed to make the war more expensive, just the opposite.Report