@Boonton, I would say an American in Canada would be under the jurisdiction of Canadian law which would make it difficult to view him as a military target barring exceptional circumstances (say involving hovering airships). From what it appears, Yeman is a weak gov't that is unable to take much responsibility for what happens in its borders.
This would be the same issue with viewing people inside the US as military targets. Unless you have a situation where law enforcement has been neutralized, they could simply be arrested to make them cease their military activities.
@North, Work with my example of an unknown man in an airship assisting Japanese fighters. Since the US doesn't know if he is a citizen or not are you saying he can't be a military target?
@North, Countries do not wage war against individual persons but they do wage war against other nations and entities. It has happened before that US citizens have ended up on the other side and no that doesn't create any special obligations on the military.
@Jaybird, You are aware that never in the entire military history of the United States has anything like you just said here been proposed or even considered constitutionally required and not just because 'targetted assassinations' have become more technologically feasible with drones.
@Jason Kuznicki, You scoff because you are mixing up two different questions: Is he a legitimate military target? Is he a legitimate judicial target?
Treason is a judicial concept and its determination and punishment must be made by the judical system.
A military target, though, may or may not be guilty of treason. Let's go back to an old hypothetical. Imagine a man in an airship in international waters just outside of Pearl Harbor radioing to incoming Japanese planes the positions of US battleships.
Is he guilty of treason? Probably if he is a US citizen, not if he isn't. Does the military decide this? No.
Is he a military target? Most certainly and if the US manages to get some fighters off the ground they are entitled to take shoot him down without an indictment, without 'due process' without even knowing who he is.
What if the attack ends and the man lands his airship in Canada and takes up residence there doing nothing more in regards to the war? He ceases to become a military target but remains a judicial one. Since he is under Canadian jurisdiction the US cannot bomb his house with a drone. If the US continues to want to 'get him' it must restrict itself to legal tactics.
I don't know where you're getting the idea that I'm claiming we must kill Mr. Awlaki to save his civil liberties. That's not my argument. My argument is simply that Mr. Awlaki's civil liberties here are hardly as clear cut as you are making believe. And more to the point IF his case is as clear cut as you would have it citizenship cannot have anything to do with it. It would apply to almost everyone targetted by drones, raids, bombings etc.
Jason, For Awlaki to be a military target, we would have to accept the premise that we are at war in Yemen. This only works if we accept the premise that we are at war across the entire globe,
If Awlaki is coordinating attacks from Yemen then we would be at war there without being at war against the entire globe. The place where a war is fought is choosen by *both* sides. If in WWII Japan set up an unit in northern Mexico to shell the US we would have been at war there as well.
Let's take a hypothetical, suppose terrorists plant a series of wi-fi connected bombs around the US. Awlaki sits at his home using a web site to set them off when and where he wants. Assume that the gov't of Yeman is so dysfunctional that it's unable to even send police to his home to make him stop. I assume you would say under that condition Awlaki would be a legitimate military target.
Let's take another hypothetical. Suppose Awlaki lived not in Yeman but Afghanistan but his activity consisted of only making speeches in support of Jihad on the net. While we are at war in Afghanistan would you consider him a legitimate military target? Suppose he only made speeches against the corruption of the US backed government?
Is this really a power you’re comfortable letting our government have?
No but I'm not sure there's really a clear cut Constitutional check that could apply here. If the Executive abuses its military powers overseas there really isn't much of a judicial check that can be applied. Jaybird's solution of 'indictments' and 'trials in absentia' for military targets isn't going to work. From a judicial POV that has a slew of serious Constitutional problems. From a military POV you can't have 'heads up' months in advance on military targets.
@Boonton, If you think that he ought to be a military target, then hand the problem of him to the military.
Well that's essentially who has the problem now. It's his father who is arguing that the judicial system should review his being a military target and you whose going along by calling it an 'extrajudicial killing'.... This is inconsistent though because technically every killing in Afghanistan that didn't happen on a formal battlefield would be an 'extrajudicial killing'. This thread doesn't address that because of the mistaken belief that his being a US citizen makes a difference here, it doesn't. 'Extra judicial killings' are no more permitted by the Constitution if the victim isn't a citizen. The Constitution says 'persons', not 'citizens' cannot be deprirved of life without due process.
If you think that he is a criminal and deserves the death penalty, then have a damn trial.
I'd have both. While he is acting as a legitimate military target I have no problem with a drone killing him. But should he be captured either in battle or at some point in the future by police I have no issue with him going to trial for what he's done to date.
but the guy is not a spotter. He’s a religious nutball who is speaking for Jihad.
Well we know he speaks in favor of Jihad and I agree that alone does not make one a legitimate military target. I suspect, though, that he does more than simply make speeches.
You’re worried about civil liberties during a trial in absentia, and you think the proper remedy is just to bump the guy off?
I'll refer you to my point that there's a difference between military actions and judicial ones. Briefly:
Military
* Yea you can 'just bump the guy off'. But that's limited to a military operation. Basically if he's in an area under the jurisdiction of law the military option is off the table.
Judicial
* You're seeking justice. Even if the guy stops doing terrorism and goes off the grid for twenty years the judicial power is there to hold him accountable for, say, the deaths at Fort Hood.
There are advantages and disadvantages to both and different checks are needed to prevent abuse but trying to conflate everything as one just confuses the issue.
Jaybird @Boonton, is the defendant present for the grand jury?
Actually he has the right to testify in front of the grand jury and present evidence to them. The grand jury, though, is more of a check on the prosecutor. The prosecutor actually has to present his case to someone other than himself before he can get an indictment.
If, for example, all the dude is doing is “saying things”, I don’t think we ought to kill him.
Military wise is being a spotter and 'saying things' to direct cannon fire is that just 'saying things'? If he's directing attacks, organizing them, recruiting for them he is actively engaging in a military operation and that makes him a legitimate military target until such time as he ceases or is brought under some type of jurisdiction. At that time he is no longer a legitimate military target and only the judicial system can address his crimes in terms of punishment. (NOTE the difference here. The military isn't 'punishing' people it targets, it is persuing military objectives. The sniper in the tower who is targetted by an air strike isn't a subject of 'punishment' but is falling victim to a military objective of securing the area. The sniper may or may not be a criminal depending on circumstances.
I honestly think that if we can’t get enough on the guy to indict him, we shouldn’t kill him.
Then you have to hold that the gov't must secure an indictment for just about all military strikes it carries out except self-defense and a well defined 'battle' with two clearly indentifiable sides.
And why do you think an indictment is a magic ticket in the 'process' to kill someone? Just because you're indicted doesn't mean the gov't can blow up your house with you in it! Even if you are tried, convicted and sentenced to death and then escape the gov't can't just drop bombs on you but must execute you in accord with due process....that means the sentence must be carried out in the formal manner that death row is done in the US. Not shooting you down in the street.
MFarmer What would we do if a country was sending drones into Texas killing children for being too near a suspected target?
We would probably say we were at war with such a country and the US is indeed at war in Afghanistan. Civilian deaths are a reality of war and I'd agree with you its a reason to rethink continuing the war in Afghanistan but reality is that civilian deaths are part of war and relative to just about every previous war the US has fought this one probably has the least. You certainly couldn't stack drone civilian deaths against, say, the deaths of German and Japanese civilians in World War II.
@MFarmer, Not in the US but in an international tribunal that more or less made up the law as they went along. Keep in mind Jaybird cares very deeply about following 'the process'. At least as they were done in Nurenberg, the war crimes trials would have never stood up in US courts if it had been a US operation.
@Jaybird, You claim you want to 'follow the process' but you seem to forget that the US doesn't really have a process to try people in absentia and creating one raises all types of really serious civili liberties issues.
More importantly, citizenship here doesn't matter. If targetting someone 'off the battlefield' isn't consitutional then at the very least almost every predator strike will require a grand jury indictment. Do you really think its sensible to go there?
@Jason Kuznicki, I don't doube the US would like to capture him if possible. The question isn't whether or not the US is going to refuse to capture him, its whether the US can kill him. Constitutionally I think it can.
Consider your arguement for capture. Has a warrant been issued for his arrest? Has he been indicted? If he has no criminal charge against him how is it constitutional to risk his life and possibly destroy his home in an attempt to capture him without due process of law but its a violation to kill him?
@Jaybird, 1. That wouldn't get you anywhere. Assuming you can legally try him in absentia (I don't think it's legal in the US except in cases where the tiral begins and the accused skips town), what will that accomplish? If you sentence him to life in prision or even the death panalty that doesn't make a 'targetted killing' legal.
2. Process is important but there is a difference between targetting someone judically and someone militarily. From what I've seen so far this guy is being targetted as a military target because he is actively engaged in recruiting and coordinating terrorist acts. Should he cease that he will cease to be a legitimate military target but the process of punishing judicially for the things he has already done is a different issue.
3. I'm not sure there's a one to one overlap between criminal acts and the things that make one a legitimate military target. For example, if this guy is found not guilty does that mean he is no longer a target? What if he is inside a bunker radioing SCUD missle operators coordinates for targets? I think its important to see there's two tracks here. The military track address the threat in the present moment while the judicial track addresses acts that were done in the past. I think on this list everyone is getting so uppity about the phrase "American citizen" that they forget there is no different 'process' that depends on citizenship in the constitution.
Padilla's case cautions us about following the system when a person is under the jurisdiction of law. The Bush administration didn't help with their legal reasoning that seemed to offer absolutely no check on the President.....in theory they sounded like they could, if they wanted, declare members of the Democratic Party 'enemies' and have them killed on US soil all as part of some ever expanding 'war power'. I think understanding this as a two track question helps preclude that possibility while preserving the ability to take out real threats in real time.
I think a few points can address the civil liberties issues.
1. State action versus judicial action - Judicial action essentially punishes for a crime. State actions does not. Imagine the US gov't got sick of Roman Polanski skipping out on his sentencing for rape. They drop a smart bomb on his home in France killing him. That would indeed be an 'extrajudicial execution'.
But say this guy in Yeman suddenly has a change of heart. He ceases to support terrrorism, stops the recruitment and speeches in favor of it. He retires from the wrong side of the 'War on Terror'. I suspect he would eventually be dropped from the target list. Of course he may have pending criminal charges on him, if he ever shows up in the US he might be arrested. This indicates that the action is not so much about the gov't playing the judicial role (punishing him for what he has done, regardless of present circumstances), but about something he is doing (an active participant in an armed conflict against the US).
2. As I stated before the issue of citizenship is irrelevant. The Constitution says the life of persons may not be deprived without due process of law....not the life of citizens only. If you think targetting him is illegal because he is a citizen then you have a serious problem. Technically we are not at war with Pakistan. If Osama Bin Laden himself couldn't be legally targetted there if you follow this logic through.
3. The gov't has two 'outs' where it can target people and avoid the civil liberties problem:
a. 'On the battlefield' - read liberally this basically means where the enemy is engaged in operations against the US. Not simply on a field where soldiers are shooting at each other. If this could include a small hut in the Pakistani mountains where Osama is issuing orders to Al Qaeda in Afghanistan then I'm not seeing why it couldn't include a small house in Yeman with an internet connection.
b. 'Due process' is a two sided coin. It seems odd to assert that a person has a right to assert due process while at the same time avoidng being under the jurisdiction of due process. In both Yeman and Afghanistan the tactic appears to be to avoid due process by making a home in 'borderland' regions or in countries with a weak gov't that cannot effectively take responsibility for your actions. I think in order to bring a case he must subject himself to due process. This doesn't mean he has to surrender to the US but he be under the jurisdiction of some gov't that can be held accountable for his actions (again not necessarily one friendly to the US, even one like Iran would work). Long story short, you can't be an outlaw (meaning outside the reach of any law) and an 'in law' (meaning protected by law) whenever it suits you. If you choose to be an outlaw you forgoe the protection of law.
Excellent post. The problem is that Serfdom is a good book on an outdated topic. As a result conservatives tend to make an unwarrented and ill informed assumption:
social democracy != planning!!!
In the 30's and 40's there were serious advocates of economic planning. This DID NOT mean 'stimulus' or unemployment or even social security. This meant the gov't allocating production, usually in conjunction with major industries. An archtypical example might be the UK's nationalization of the coal mines. The logic was that it would be a win-win. Gov't would lower coal prices and raise worker's wages so the mine would zero out its profit or even have a slight loss.
A less drastic idea in the same school would be 'planning' wherin, for example, the major auto companies would sit down and project next year's production and the gov't would allocate steel to the auto industry. Variations of this were tried briefly in the New Deal with the NRA and planning became a very big policy in WWII where various industries had to deal with the gov't before being allowed to buy 'essential' materials.
It's not difficult to see why this idea gained so much currency. The USSR was directly planning its economy and it appeared to have made a large leap from a backward mostly agricultural economy to an industrial one. WWII seemed to work very well also. More importantly, though, someone looking at history at the turn of the last century would have seen a narrative that began with Adam Smith's 'perfect competition' model with small shops and producers competiting against each other giving way to oligachy and monopoly as the industrical revolution climaxed. The perfect competition model did not seem to accomodate the fact that many industrial activities had economies of scale where the larger the producer, the cheaper to produce. At the cheapest point though, producers were so large that only a few could be accomodated by the marketplace. It certainly must have seemed like history was going to show 'perfect competition' was a quaint model for a small piece of the economy (the coffee shop, the bagel maker maybe), but for most of it production would take place on such a large scale that only gov't could handle it.
Hayek was excellent in pointing out the problems with planning and history has mostly shown him right. But where a lot on the right are getting it all wrong is equating Keynes and social democracy with planning. (And this is an easy area to get confused because Hayek was a critic of Keynes, but you'll find little in Serfdom about Keynes or even social democracy). Let's tackle them to see the problem:
Social Democracy - This mostly is not about planning the economy. The key ideas here tend to be taxing the economy to fund outcomes that are more socially tolerable. Hence observe Social Security. SSI taxes your pay and then pays you when you're old. There's no 'planning' here in the Serfdom sense. SSI doesn't assign you a job, doesn't tell you when or even if to retire. It doesn't lower tax rates on jobs it thinks are 'important' and raise them on those it thinks are 'unwanted'. What job you have, how much you make, all this isn't 'planned' but is the result of the market. Now you can validly point out that this has a distortionary effect on the market but it isn't 'planning'.
Keynes - While history is never a clean story the fact is Keynesian stimulus isn't planning either. Stimulus spends in a recession to boost demand. That's it. For example, take extending unemployment benefits and boosting food stamps which was a portion of what the actual stimulus package did. Individuals get funds but where they spend it is up to them (Wal-Mart or Target, food or gas, pay down the mortgage or move). Likewise how the economy responds to demand increasing is not planned (more Wal-Marts or GM assembly lines?, more Iron Man movies or Starbucks outlets?)
he problem is that the gummint refuses to acknowledge we’re at war with Islam, and they haven’t a clue,
Invariably people who speak like this know absolutely nothing about war or Islam. 9 times out of 10 they also give themselves away by announcing that just about the entire world 'doesn't have a clue'.
Well, ole buddy, we’re going to have to differ on that one..a study of the Koran might change you’re mind about Muslim beliefs.
Translation: My 'study' consists of reading forwarded email chains that I get from my friends who also send me those 'touched by an angel, forward this to ten people by midnight tonight and something wonderful will happen' emails.
T Greer
Completely immaterial. This man is an American citizen. And hell by highwater, I do not care what he he has done or will do – before the government authorizes the death of an American citizen they need to prove to a group of his peers that he is guilty.
1. The Constitution does not say life of American citizens cannot be deprived without due process of law, it says the life of persons may not be deprived. In this regard his citizenship status is irrelevant.
2. I would say that the gov't can kill him provided he is not under American jurisdiction or jurisdiction of a gov't that is able to be held responsible for his acts.
Consider the following hypotheticals.
It's WWII and in international waters there's an airship manned by a US citizen sympathetic to Japan. He radios in the location of US ships to a Japanese task force. I think you'd agree that the US can shoot his airship down without a trial on the grounds that he is setting himself up on a battlefield.
It's WWII and in Mexico a US citizen is an Axis sympathizer, but not working for Japan or Germany. He recruits a 'militia' whose intent is to eventually launch a terrorist attack on the US to assist Japan and Germany (but he isn't in direct coordination with them). I would say the US cannot 'order him killed' but instead must persue him thru the Mexican government which either has the choices of:
1. Prohibiting him from his anti-US activities.
2. Arresting him and turning him over to the US.
3. Risk being held responsible for his actions given that he is on Mexican soil where the Mexican gov't has sovereignity.
It seems to me this case is a bit less like the 2nd and more like the 1st in that Yeman seems unable to really control their soil. He has a right to due process of law if he places himself within a regime where due process can be applied. That means either turning himself over to the US or putting himself under the jurisdiction of a real gov't that can be held accountable for him (it need not be a pro-US gov't, it could be one like Iran which probably wouldn't turn him over to the US). But you can't really have it both ways. You can't dodge the law by hanging in a lawless, frontier zone and at the same time demand protection from the law.
To me this seems like an important difference between a justified use of war powers and a President hypothetically ordering Glenn Beck or Michael Moore killed as an 'enemy' without any judicial review.
Actually one thing that bothers me is the claim that terrorists cannot be questioned 'when they've been Mirandized' or whatnot. The way I read the law they most certainly can. Evidence collected, though, simply cannot be used against them. But they can be questioned, say, about other possible plots or the locations of training camps.
http://d-squareddigest.blogspot.com/2010/09/hardy-perennials-i-suspect-that-there.html makes a good point.
You can't ignore interest rates in evaluating how much a piece of capital is worth. If interest rates are high, a piece of capital is worth less. The reasoning is simple. If some machine will give me $12000 in 2040 I have to consider its price today. If the machine costs $10,000 today the fact is I can just put my money in a savings account and have more than $12K by 2040. The higher interest rates are, the less I'd be willing to pay today for that $12K in 2040. The lower the rates are the more I'd be willing to pay (if real rates are negative, i.e. deflation, I'd even be willing to pay more than $12K) Houses can be thought of as machines that provide a place to live. If it costs about $1K per month to rent a decent place then owning a home will give you that in 2040 (and every year before then, as well as after).
Anyway we are in a period of very low long term interest rates. No that is not because the Fed 'set' them that way. The Fed can only set the 3 month rate. All other rates are set by the market and if it thinks the Fed is printing too much $$$ it will make long term rates jump. Low long term rates makes houses worth more and it looks like rates will be low for a long time to come.
I think the idea that the nation as a whole still requires another real estate price collapse doesn't hold water. Individual regions might be in a holding pattern where owners are waiting to see what happens to prices when the recession ends. But this itself means that the people holding are able to hold on (whether they be individuals underwater who continue to pay or banks holding off foreclosing). That's better than people who can't hold and have to sell regardless of price.
@Pat Cahalan, My view is from NJ where home prices did not fall as much and haven't come down as much but the job situation is not as dire. But this is tricky because wherever you live you can only see a tiny piece of the picture.
For the nation as a whole, though, I'm still skeptical. When I last looked, even during the boom there was not a huge amount of actual housing created. We went into the boom with something like one house per 2 point something people and we still have one house per 2 point something. The price of housing overall is driven by taste. If all in the sudden people decide they feel comfortable living with 4 people rather than 2, if they decide they'd rater spend no more than 20% rather than 40% of their income on housing then yes prices would fall down fast. I'm not seeing that. People still like to have their own house, still are comfortable putting a good piece of their income to housing. Yes some are doubling up but that's mostly due to the job situation.
Over the long run yes things will change but you have to think about why they change. OK interest rates will go up. Higher interest rates is bad for homebuyers. Check. But why would interest rates go up? Either because inflation picks up or because the economy picks up. It's very hard to see serious inflation with home prices falling dramatically. Likewise if the economy is doing so well interest rates rise to cool it, it's hard to see home prices collapsing even more.
The fallback for additional collapse here is based on finance. But for decades people make their mortgage and rent payments. The finance system is indeed pretty sick right now but I don't see any particular reason why the traditional mortgage (which was the standard even as recently as, say, 1995) cannot be supplied by the finance industry....esp. as the crash has caused an increase in individual savings rates. Yes banks still have bad loans on their balance sheet but the Fed is pumping banks full of easy money and easy profits and every year that goes buy the hump of those bad loans gets more and more digested. There's no particular reason I see to assume that it would be impossible for finance to supply good loans going forward.
Not quite sure I'd agree. The price to rent ratio indicate that most of the boom has already disappeared (see http://4.bp.blogspot.com/_pMscxxELHEg/SwwLMNmxidI/AAAAAAAAG4U/YExykMMJm5Q/s1600/Q3PriceRent.jpg). Whatever housing prices are now keep in mind these are prices in an economy with 10% unemployment and deflation. Would an economy with 5% unemployment and modest inflation of 2-3% support house prices falling much more? I don't think so.
@Jaybird, In sum you are saying we could have done a bit more good by letting the used cars go back on the market rather than being destroyed so the 77 Datsun guy could buy that Ford SUV and enjoy it rather than see the SUV crushed. If there's no value to improving mpg then this value would be about the market price of the used car that got crushed (say $500) or about 11.6% of the 3B program. The program might have been 11% better than it was. OK fine if that's what you spent a hundred posts fighting for then take it.
*Comment archive for non-registered commenters assembled by email address as provided.
On “State Secrets”
@Boonton, I would say an American in Canada would be under the jurisdiction of Canadian law which would make it difficult to view him as a military target barring exceptional circumstances (say involving hovering airships). From what it appears, Yeman is a weak gov't that is unable to take much responsibility for what happens in its borders.
This would be the same issue with viewing people inside the US as military targets. Unless you have a situation where law enforcement has been neutralized, they could simply be arrested to make them cease their military activities.
On “Roads, Serfdom”
@62across, How do you figure gov't controls 'half of GDP'?
On “State Secrets”
@Robert Cheeks, Actually excessive force in execution of a valid judicial warrant. Different bucket.
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@Jaybird, I'm unclear here, where does the military publish a list of all their targets in a war?
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@North, Work with my example of an unknown man in an airship assisting Japanese fighters. Since the US doesn't know if he is a citizen or not are you saying he can't be a military target?
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@North, The Constitution says nothing of the sort.
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@North, Countries do not wage war against individual persons but they do wage war against other nations and entities. It has happened before that US citizens have ended up on the other side and no that doesn't create any special obligations on the military.
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@Jaybird, He isn't a military target? Why not?
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@Jaybird, You are aware that never in the entire military history of the United States has anything like you just said here been proposed or even considered constitutionally required and not just because 'targetted assassinations' have become more technologically feasible with drones.
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@Jason Kuznicki, You scoff because you are mixing up two different questions: Is he a legitimate military target? Is he a legitimate judicial target?
Treason is a judicial concept and its determination and punishment must be made by the judical system.
A military target, though, may or may not be guilty of treason. Let's go back to an old hypothetical. Imagine a man in an airship in international waters just outside of Pearl Harbor radioing to incoming Japanese planes the positions of US battleships.
Is he guilty of treason? Probably if he is a US citizen, not if he isn't. Does the military decide this? No.
Is he a military target? Most certainly and if the US manages to get some fighters off the ground they are entitled to take shoot him down without an indictment, without 'due process' without even knowing who he is.
What if the attack ends and the man lands his airship in Canada and takes up residence there doing nothing more in regards to the war? He ceases to become a military target but remains a judicial one. Since he is under Canadian jurisdiction the US cannot bomb his house with a drone. If the US continues to want to 'get him' it must restrict itself to legal tactics.
I don't know where you're getting the idea that I'm claiming we must kill Mr. Awlaki to save his civil liberties. That's not my argument. My argument is simply that Mr. Awlaki's civil liberties here are hardly as clear cut as you are making believe. And more to the point IF his case is as clear cut as you would have it citizenship cannot have anything to do with it. It would apply to almost everyone targetted by drones, raids, bombings etc.
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Jason,
For Awlaki to be a military target, we would have to accept the premise that we are at war in Yemen. This only works if we accept the premise that we are at war across the entire globe,
If Awlaki is coordinating attacks from Yemen then we would be at war there without being at war against the entire globe. The place where a war is fought is choosen by *both* sides. If in WWII Japan set up an unit in northern Mexico to shell the US we would have been at war there as well.
Let's take a hypothetical, suppose terrorists plant a series of wi-fi connected bombs around the US. Awlaki sits at his home using a web site to set them off when and where he wants. Assume that the gov't of Yeman is so dysfunctional that it's unable to even send police to his home to make him stop. I assume you would say under that condition Awlaki would be a legitimate military target.
Let's take another hypothetical. Suppose Awlaki lived not in Yeman but Afghanistan but his activity consisted of only making speeches in support of Jihad on the net. While we are at war in Afghanistan would you consider him a legitimate military target? Suppose he only made speeches against the corruption of the US backed government?
Is this really a power you’re comfortable letting our government have?
No but I'm not sure there's really a clear cut Constitutional check that could apply here. If the Executive abuses its military powers overseas there really isn't much of a judicial check that can be applied. Jaybird's solution of 'indictments' and 'trials in absentia' for military targets isn't going to work. From a judicial POV that has a slew of serious Constitutional problems. From a military POV you can't have 'heads up' months in advance on military targets.
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@Boonton, If you think that he ought to be a military target, then hand the problem of him to the military.
Well that's essentially who has the problem now. It's his father who is arguing that the judicial system should review his being a military target and you whose going along by calling it an 'extrajudicial killing'.... This is inconsistent though because technically every killing in Afghanistan that didn't happen on a formal battlefield would be an 'extrajudicial killing'. This thread doesn't address that because of the mistaken belief that his being a US citizen makes a difference here, it doesn't. 'Extra judicial killings' are no more permitted by the Constitution if the victim isn't a citizen. The Constitution says 'persons', not 'citizens' cannot be deprirved of life without due process.
If you think that he is a criminal and deserves the death penalty, then have a damn trial.
I'd have both. While he is acting as a legitimate military target I have no problem with a drone killing him. But should he be captured either in battle or at some point in the future by police I have no issue with him going to trial for what he's done to date.
but the guy is not a spotter. He’s a religious nutball who is speaking for Jihad.
Well we know he speaks in favor of Jihad and I agree that alone does not make one a legitimate military target. I suspect, though, that he does more than simply make speeches.
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@Boonton, Jason
You’re worried about civil liberties during a trial in absentia, and you think the proper remedy is just to bump the guy off?
I'll refer you to my point that there's a difference between military actions and judicial ones. Briefly:
Military
* Yea you can 'just bump the guy off'. But that's limited to a military operation. Basically if he's in an area under the jurisdiction of law the military option is off the table.
Judicial
* You're seeking justice. Even if the guy stops doing terrorism and goes off the grid for twenty years the judicial power is there to hold him accountable for, say, the deaths at Fort Hood.
There are advantages and disadvantages to both and different checks are needed to prevent abuse but trying to conflate everything as one just confuses the issue.
Jaybird
@Boonton, is the defendant present for the grand jury?
Actually he has the right to testify in front of the grand jury and present evidence to them. The grand jury, though, is more of a check on the prosecutor. The prosecutor actually has to present his case to someone other than himself before he can get an indictment.
If, for example, all the dude is doing is “saying things”, I don’t think we ought to kill him.
Military wise is being a spotter and 'saying things' to direct cannon fire is that just 'saying things'? If he's directing attacks, organizing them, recruiting for them he is actively engaging in a military operation and that makes him a legitimate military target until such time as he ceases or is brought under some type of jurisdiction. At that time he is no longer a legitimate military target and only the judicial system can address his crimes in terms of punishment. (NOTE the difference here. The military isn't 'punishing' people it targets, it is persuing military objectives. The sniper in the tower who is targetted by an air strike isn't a subject of 'punishment' but is falling victim to a military objective of securing the area. The sniper may or may not be a criminal depending on circumstances.
I honestly think that if we can’t get enough on the guy to indict him, we shouldn’t kill him.
Then you have to hold that the gov't must secure an indictment for just about all military strikes it carries out except self-defense and a well defined 'battle' with two clearly indentifiable sides.
And why do you think an indictment is a magic ticket in the 'process' to kill someone? Just because you're indicted doesn't mean the gov't can blow up your house with you in it! Even if you are tried, convicted and sentenced to death and then escape the gov't can't just drop bombs on you but must execute you in accord with due process....that means the sentence must be carried out in the formal manner that death row is done in the US. Not shooting you down in the street.
MFarmer
What would we do if a country was sending drones into Texas killing children for being too near a suspected target?
We would probably say we were at war with such a country and the US is indeed at war in Afghanistan. Civilian deaths are a reality of war and I'd agree with you its a reason to rethink continuing the war in Afghanistan but reality is that civilian deaths are part of war and relative to just about every previous war the US has fought this one probably has the least. You certainly couldn't stack drone civilian deaths against, say, the deaths of German and Japanese civilians in World War II.
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@MFarmer, Not in the US but in an international tribunal that more or less made up the law as they went along. Keep in mind Jaybird cares very deeply about following 'the process'. At least as they were done in Nurenberg, the war crimes trials would have never stood up in US courts if it had been a US operation.
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@Jaybird, You claim you want to 'follow the process' but you seem to forget that the US doesn't really have a process to try people in absentia and creating one raises all types of really serious civili liberties issues.
More importantly, citizenship here doesn't matter. If targetting someone 'off the battlefield' isn't consitutional then at the very least almost every predator strike will require a grand jury indictment. Do you really think its sensible to go there?
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@Jason Kuznicki, I don't doube the US would like to capture him if possible. The question isn't whether or not the US is going to refuse to capture him, its whether the US can kill him. Constitutionally I think it can.
Consider your arguement for capture. Has a warrant been issued for his arrest? Has he been indicted? If he has no criminal charge against him how is it constitutional to risk his life and possibly destroy his home in an attempt to capture him without due process of law but its a violation to kill him?
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@Jaybird, 1. That wouldn't get you anywhere. Assuming you can legally try him in absentia (I don't think it's legal in the US except in cases where the tiral begins and the accused skips town), what will that accomplish? If you sentence him to life in prision or even the death panalty that doesn't make a 'targetted killing' legal.
2. Process is important but there is a difference between targetting someone judically and someone militarily. From what I've seen so far this guy is being targetted as a military target because he is actively engaged in recruiting and coordinating terrorist acts. Should he cease that he will cease to be a legitimate military target but the process of punishing judicially for the things he has already done is a different issue.
3. I'm not sure there's a one to one overlap between criminal acts and the things that make one a legitimate military target. For example, if this guy is found not guilty does that mean he is no longer a target? What if he is inside a bunker radioing SCUD missle operators coordinates for targets? I think its important to see there's two tracks here. The military track address the threat in the present moment while the judicial track addresses acts that were done in the past. I think on this list everyone is getting so uppity about the phrase "American citizen" that they forget there is no different 'process' that depends on citizenship in the constitution.
Padilla's case cautions us about following the system when a person is under the jurisdiction of law. The Bush administration didn't help with their legal reasoning that seemed to offer absolutely no check on the President.....in theory they sounded like they could, if they wanted, declare members of the Democratic Party 'enemies' and have them killed on US soil all as part of some ever expanding 'war power'. I think understanding this as a two track question helps preclude that possibility while preserving the ability to take out real threats in real time.
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I think a few points can address the civil liberties issues.
1. State action versus judicial action - Judicial action essentially punishes for a crime. State actions does not. Imagine the US gov't got sick of Roman Polanski skipping out on his sentencing for rape. They drop a smart bomb on his home in France killing him. That would indeed be an 'extrajudicial execution'.
But say this guy in Yeman suddenly has a change of heart. He ceases to support terrrorism, stops the recruitment and speeches in favor of it. He retires from the wrong side of the 'War on Terror'. I suspect he would eventually be dropped from the target list. Of course he may have pending criminal charges on him, if he ever shows up in the US he might be arrested. This indicates that the action is not so much about the gov't playing the judicial role (punishing him for what he has done, regardless of present circumstances), but about something he is doing (an active participant in an armed conflict against the US).
2. As I stated before the issue of citizenship is irrelevant. The Constitution says the life of persons may not be deprived without due process of law....not the life of citizens only. If you think targetting him is illegal because he is a citizen then you have a serious problem. Technically we are not at war with Pakistan. If Osama Bin Laden himself couldn't be legally targetted there if you follow this logic through.
3. The gov't has two 'outs' where it can target people and avoid the civil liberties problem:
a. 'On the battlefield' - read liberally this basically means where the enemy is engaged in operations against the US. Not simply on a field where soldiers are shooting at each other. If this could include a small hut in the Pakistani mountains where Osama is issuing orders to Al Qaeda in Afghanistan then I'm not seeing why it couldn't include a small house in Yeman with an internet connection.
b. 'Due process' is a two sided coin. It seems odd to assert that a person has a right to assert due process while at the same time avoidng being under the jurisdiction of due process. In both Yeman and Afghanistan the tactic appears to be to avoid due process by making a home in 'borderland' regions or in countries with a weak gov't that cannot effectively take responsibility for your actions. I think in order to bring a case he must subject himself to due process. This doesn't mean he has to surrender to the US but he be under the jurisdiction of some gov't that can be held accountable for his actions (again not necessarily one friendly to the US, even one like Iran would work). Long story short, you can't be an outlaw (meaning outside the reach of any law) and an 'in law' (meaning protected by law) whenever it suits you. If you choose to be an outlaw you forgoe the protection of law.
On “Roads, Serfdom”
Excellent post. The problem is that Serfdom is a good book on an outdated topic. As a result conservatives tend to make an unwarrented and ill informed assumption:
social democracy != planning!!!
In the 30's and 40's there were serious advocates of economic planning. This DID NOT mean 'stimulus' or unemployment or even social security. This meant the gov't allocating production, usually in conjunction with major industries. An archtypical example might be the UK's nationalization of the coal mines. The logic was that it would be a win-win. Gov't would lower coal prices and raise worker's wages so the mine would zero out its profit or even have a slight loss.
A less drastic idea in the same school would be 'planning' wherin, for example, the major auto companies would sit down and project next year's production and the gov't would allocate steel to the auto industry. Variations of this were tried briefly in the New Deal with the NRA and planning became a very big policy in WWII where various industries had to deal with the gov't before being allowed to buy 'essential' materials.
It's not difficult to see why this idea gained so much currency. The USSR was directly planning its economy and it appeared to have made a large leap from a backward mostly agricultural economy to an industrial one. WWII seemed to work very well also. More importantly, though, someone looking at history at the turn of the last century would have seen a narrative that began with Adam Smith's 'perfect competition' model with small shops and producers competiting against each other giving way to oligachy and monopoly as the industrical revolution climaxed. The perfect competition model did not seem to accomodate the fact that many industrial activities had economies of scale where the larger the producer, the cheaper to produce. At the cheapest point though, producers were so large that only a few could be accomodated by the marketplace. It certainly must have seemed like history was going to show 'perfect competition' was a quaint model for a small piece of the economy (the coffee shop, the bagel maker maybe), but for most of it production would take place on such a large scale that only gov't could handle it.
Hayek was excellent in pointing out the problems with planning and history has mostly shown him right. But where a lot on the right are getting it all wrong is equating Keynes and social democracy with planning. (And this is an easy area to get confused because Hayek was a critic of Keynes, but you'll find little in Serfdom about Keynes or even social democracy). Let's tackle them to see the problem:
Social Democracy - This mostly is not about planning the economy. The key ideas here tend to be taxing the economy to fund outcomes that are more socially tolerable. Hence observe Social Security. SSI taxes your pay and then pays you when you're old. There's no 'planning' here in the Serfdom sense. SSI doesn't assign you a job, doesn't tell you when or even if to retire. It doesn't lower tax rates on jobs it thinks are 'important' and raise them on those it thinks are 'unwanted'. What job you have, how much you make, all this isn't 'planned' but is the result of the market. Now you can validly point out that this has a distortionary effect on the market but it isn't 'planning'.
Keynes - While history is never a clean story the fact is Keynesian stimulus isn't planning either. Stimulus spends in a recession to boost demand. That's it. For example, take extending unemployment benefits and boosting food stamps which was a portion of what the actual stimulus package did. Individuals get funds but where they spend it is up to them (Wal-Mart or Target, food or gas, pay down the mortgage or move). Likewise how the economy responds to demand increasing is not planned (more Wal-Marts or GM assembly lines?, more Iron Man movies or Starbucks outlets?)
On “State Secrets”
he problem is that the gummint refuses to acknowledge we’re at war with Islam, and they haven’t a clue,
Invariably people who speak like this know absolutely nothing about war or Islam. 9 times out of 10 they also give themselves away by announcing that just about the entire world 'doesn't have a clue'.
Well, ole buddy, we’re going to have to differ on that one..a study of the Koran might change you’re mind about Muslim beliefs.
Translation: My 'study' consists of reading forwarded email chains that I get from my friends who also send me those 'touched by an angel, forward this to ten people by midnight tonight and something wonderful will happen' emails.
T Greer
Completely immaterial. This man is an American citizen. And hell by highwater, I do not care what he he has done or will do – before the government authorizes the death of an American citizen they need to prove to a group of his peers that he is guilty.
1. The Constitution does not say life of American citizens cannot be deprived without due process of law, it says the life of persons may not be deprived. In this regard his citizenship status is irrelevant.
2. I would say that the gov't can kill him provided he is not under American jurisdiction or jurisdiction of a gov't that is able to be held responsible for his acts.
Consider the following hypotheticals.
It's WWII and in international waters there's an airship manned by a US citizen sympathetic to Japan. He radios in the location of US ships to a Japanese task force. I think you'd agree that the US can shoot his airship down without a trial on the grounds that he is setting himself up on a battlefield.
It's WWII and in Mexico a US citizen is an Axis sympathizer, but not working for Japan or Germany. He recruits a 'militia' whose intent is to eventually launch a terrorist attack on the US to assist Japan and Germany (but he isn't in direct coordination with them). I would say the US cannot 'order him killed' but instead must persue him thru the Mexican government which either has the choices of:
1. Prohibiting him from his anti-US activities.
2. Arresting him and turning him over to the US.
3. Risk being held responsible for his actions given that he is on Mexican soil where the Mexican gov't has sovereignity.
It seems to me this case is a bit less like the 2nd and more like the 1st in that Yeman seems unable to really control their soil. He has a right to due process of law if he places himself within a regime where due process can be applied. That means either turning himself over to the US or putting himself under the jurisdiction of a real gov't that can be held accountable for him (it need not be a pro-US gov't, it could be one like Iran which probably wouldn't turn him over to the US). But you can't really have it both ways. You can't dodge the law by hanging in a lawless, frontier zone and at the same time demand protection from the law.
To me this seems like an important difference between a justified use of war powers and a President hypothetically ordering Glenn Beck or Michael Moore killed as an 'enemy' without any judicial review.
On “Miranda as a Rule of Evidence”
Actually one thing that bothers me is the claim that terrorists cannot be questioned 'when they've been Mirandized' or whatnot. The way I read the law they most certainly can. Evidence collected, though, simply cannot be used against them. But they can be questioned, say, about other possible plots or the locations of training camps.
On “‘Housing prices must fall, yet…housing prices must not fall’”
http://d-squareddigest.blogspot.com/2010/09/hardy-perennials-i-suspect-that-there.html makes a good point.
You can't ignore interest rates in evaluating how much a piece of capital is worth. If interest rates are high, a piece of capital is worth less. The reasoning is simple. If some machine will give me $12000 in 2040 I have to consider its price today. If the machine costs $10,000 today the fact is I can just put my money in a savings account and have more than $12K by 2040. The higher interest rates are, the less I'd be willing to pay today for that $12K in 2040. The lower the rates are the more I'd be willing to pay (if real rates are negative, i.e. deflation, I'd even be willing to pay more than $12K) Houses can be thought of as machines that provide a place to live. If it costs about $1K per month to rent a decent place then owning a home will give you that in 2040 (and every year before then, as well as after).
Anyway we are in a period of very low long term interest rates. No that is not because the Fed 'set' them that way. The Fed can only set the 3 month rate. All other rates are set by the market and if it thinks the Fed is printing too much $$$ it will make long term rates jump. Low long term rates makes houses worth more and it looks like rates will be low for a long time to come.
I think the idea that the nation as a whole still requires another real estate price collapse doesn't hold water. Individual regions might be in a holding pattern where owners are waiting to see what happens to prices when the recession ends. But this itself means that the people holding are able to hold on (whether they be individuals underwater who continue to pay or banks holding off foreclosing). That's better than people who can't hold and have to sell regardless of price.
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@Pat Cahalan, My view is from NJ where home prices did not fall as much and haven't come down as much but the job situation is not as dire. But this is tricky because wherever you live you can only see a tiny piece of the picture.
For the nation as a whole, though, I'm still skeptical. When I last looked, even during the boom there was not a huge amount of actual housing created. We went into the boom with something like one house per 2 point something people and we still have one house per 2 point something. The price of housing overall is driven by taste. If all in the sudden people decide they feel comfortable living with 4 people rather than 2, if they decide they'd rater spend no more than 20% rather than 40% of their income on housing then yes prices would fall down fast. I'm not seeing that. People still like to have their own house, still are comfortable putting a good piece of their income to housing. Yes some are doubling up but that's mostly due to the job situation.
Over the long run yes things will change but you have to think about why they change. OK interest rates will go up. Higher interest rates is bad for homebuyers. Check. But why would interest rates go up? Either because inflation picks up or because the economy picks up. It's very hard to see serious inflation with home prices falling dramatically. Likewise if the economy is doing so well interest rates rise to cool it, it's hard to see home prices collapsing even more.
The fallback for additional collapse here is based on finance. But for decades people make their mortgage and rent payments. The finance system is indeed pretty sick right now but I don't see any particular reason why the traditional mortgage (which was the standard even as recently as, say, 1995) cannot be supplied by the finance industry....esp. as the crash has caused an increase in individual savings rates. Yes banks still have bad loans on their balance sheet but the Fed is pumping banks full of easy money and easy profits and every year that goes buy the hump of those bad loans gets more and more digested. There's no particular reason I see to assume that it would be impossible for finance to supply good loans going forward.
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Not quite sure I'd agree. The price to rent ratio indicate that most of the boom has already disappeared (see http://4.bp.blogspot.com/_pMscxxELHEg/SwwLMNmxidI/AAAAAAAAG4U/YExykMMJm5Q/s1600/Q3PriceRent.jpg). Whatever housing prices are now keep in mind these are prices in an economy with 10% unemployment and deflation. Would an economy with 5% unemployment and modest inflation of 2-3% support house prices falling much more? I don't think so.
On “Cash for Clunkers, Indeed”
@Jaybird, In sum you are saying we could have done a bit more good by letting the used cars go back on the market rather than being destroyed so the 77 Datsun guy could buy that Ford SUV and enjoy it rather than see the SUV crushed. If there's no value to improving mpg then this value would be about the market price of the used car that got crushed (say $500) or about 11.6% of the 3B program. The program might have been 11% better than it was. OK fine if that's what you spent a hundred posts fighting for then take it.
*Comment archive for non-registered commenters assembled by email address as provided.