State Secrets

The Obama administration urged a federal judge early Saturday to dismiss a lawsuit over its targeting of a U.S. citizen for killing overseas, saying that the case would reveal state secrets.

The U.S.-born citizen, Anwar al-Aulaqi, is a cleric now believed to be in Yemen. Federal authorities allege that he is leading a branch of al-Qaeda there.

Government lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president’s powers in the global war against al-Qaeda.

Civil liberties groups sued the U.S. government on behalf of Aulaqi’s father, arguing that the CIA and the Joint Special Operations Command’s placement of Aulaqi on a capture-or-kill list of suspected terrorists – outside a war zone and absent an imminent threat – amounted to an extrajudicial execution order against a U.S. citizen. They asked a U.S. district court in Washington to block the targeting.

In response, Justice Department spokesman Matthew Miller said that the groups are asking “a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action – all on behalf of a leader of a foreign terrorist organization.”

Miller added, “If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions.”

There is no state secret worth keeping, if this is the price we pay for it. What would happen if these secrets were disclosed? Seriously, what’s the worst-case scenario? Would we end up… living in a tyranny?

When the president can order the killing of an American citizen, without trial, without any form of review, without even a showing of evidence, we are no longer free. We live only at his pleasure. As I’ve said in the past, even George III never asserted such powers… and we know what we did to him.

Please do be so kind as to share this post.
Share

143 thoughts on “State Secrets

  1. Isn’t this just another example of the hypocracy of the librul? I thought George Bush was the asshole because he gave a few of these Muslim’s a bath…upside down?

      Quote  Link

    Report

        • @Robert Cheeks, Islam is not something that “the government” can defeat.

          Seriously, what is it with you neocons?

          Is there *ANYTHING* you think that the government can’t do?

          What will destroy Islam is the same thing that destroyed Christianity. Sex, Drugs, and Rock and Roll. When you progressives stop arguing that you can make the rest of us better at the point of a gun, maybe you’ll get out of the way just enough to let the culture start fighting against those howling barbarians.

          Seriously, Bob, Akhmed doesn’t stand a chance.

            Quote  Link

          Report

          • @Jaybird, Dude, “neocons,” …”progressives”, now that hurt. Actually, JB the gummint does have legitimate, at least in Const. terms, obligations. You’ve heard of ’em!
            Hey, thank God, the Spainiards and what’s-his-name at Tours in 731 or something, have your attitude or we’d all have daughters with mutilated clitorises and sheep running around with smiles on their faces.

              Quote  Link

            Report

            • @Robert Cheeks, sure. But the government doesn’t *KNOW* how to fight Islam. It barely knows how to fight another country and the only reason I’m willing to allow that much is because we did, in fact, win a couple of wars in the past.

              The Civil War, WWII… that’s pretty much it.

              The Government and Military no longer know how to fight wars. Why? Because they got into a conflict with the culture and the culture fucked them up but good.

              That’s what the culture does.

              Let the culture have a whack at Islam and you won’t believe the havoc wreaked.

              This idea that the government not only can but *OUGHT* to do something is seriously holding us back.

                Quote  Link

              Report

        • @Robert Cheeks, Bob, we’re at war with all of Islam only in Osama’s wettest and most fevered dreams. We’re at war with the Islamic equivalent of maybe the Southern baptist coalition (and I’m being generous there). The majority of followers of Islam, when they think of us at all, think about what they can do to convince the americans to buy more of their oil, kumquats and saffron rice.

            Quote  Link

          Report

      • 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.

          Quote  Link

        Report

        • @Boonton, your WWII scenarios are really thoughtful. I appreciate the distinctions you’ve made here, and I’ll have to think through them a little more carefully. On first pass, it seems to me that if the US has a possibility of capturing, that should be vastly preferred to bombing, especially without an actual immediate threat… but this deserves some thought.

            Quote  Link

          Report

      • @Jason Kuznicki, The American elitist paradigm exists in the world political context. The progressives, now represented by Barry and his epigonic Marxist regime, have weakened and corrupted the moral authority of the proletariate over the past number of decades to the point where to many people are ignorant of the contemporary politcal reality. They are unable to differentiate between the greed and incompetence of the RINO/NEO GOP and the intent of the current regime to collapse the economy and bring about chaos in some form or another.
        Ironically, outside pneumatic salvation, the only people who can possibly act to recover the virtues and principles of the old republic are the Tea Party folks.
        I am greatly amused, because our edumacated friends, those who faithfully serve the elites, have no clue.

          Quote  Link

        Report

          • @Jason Kuznicki, Well, we’ll have to mark that down as one of our differences of opinion because not only do I think it’s on the list, I think it’s the ground of the ‘rising.’ The TPers, leaderless as you and others have noted, are, I think, determined not only to pitch commie-dems, first, then RINO/Neo’s second, they seek a restoration, a return to the above mentioned principles.
            Actually, this ‘seeking, questing, searching’ for a return to those historical times and events that are symbolized as the ‘founding’, the ‘rebellion against tyranny’, etc. is something that we humans, at least in the West, are apt to do following decades of political/moral decline.
            The fascinating thing about the TPers is that they have no elites laying out the political philosophy, or the methodology to achieve political dominance. This ‘movement’ is very much ‘grassroots’. One can almost see a spiritual context; the revolt against the derailed spawn of the Enlightenment, the consolidators, the demonic contemporary Marxists, such as they are.

              Quote  Link

            Report

            • @Robert Cheeks, I can buy it that the Tea Partiers want to return to the republic and it’s values. But what about the value of humility? The problem I have with them is that the republic was not founded by people with an overweening and overinflated confidence in their abilities that outweighed any sense of humility about themselves or human nature more generally. That is, it wasn’t founded by us “post-moderns”. The Tea Partiers are certainly not alone in their inane hubris and utter lack of the tragic sense- it’s one of the hallmarks of modernity- but it’s time and again been the root of all modern political evil.

                Quote  Link

              Report

            • @Robert Cheeks, Rufus, dude, in this day and age of, as you say, the postmodern, the fact that these people (the TPers) are a significant political movement speaks well of those founding principles. I’m not sure why you refer to these people as exhibiting a certain ‘hubris?’ It would be most helpful if you could explicate that allegation. The founding generation took on the most powerful yada, yada, yada, you know the history…methinks that they believed in themselves as freemen similarly to those participating in the current bourgeoisie uprising. MY problem is, I wonder if today’s ‘rebels’ are willing to pay the price in the event of failure…are willing to take it to the barricades and risk life, limb, and HDTV?
              The “root of all modern political evil” has been the those Sophists who have deformed the truth of reality by denying/doubting the reality of the “gods.”
              I would suggest that the postmodern TP movement is grounded on the Divine.

                Quote  Link

              Report

      • @Scott,

        I promise to keep ranting — if you’ll promise to stop calling me a liberal.

        Also, I find it remarkable that you are the one defending Obama here, not me. When will my condemnation of him — which you do not share — be loud enough for you?

          Quote  Link

        Report

  2. I have been following this story since the assassination order was given months ago… and I simply don’t understand why this has not sparked public outcry. The government of the United States has ordered the assassination of one of its citizens without trial!

    Where is Glenn Beck and all the Tea Party folk railing against tyranny? Where is Keith Olbermann and all the leftists who call for Bush-the-war-criminal’s head?

    The silence I do not understand.

      Quote  Link

    Report

  3. @Jaybird,

    Are you seriously contending that the Bush/Cheney administration was willing to deny American citizens all of their rights, imprison them indefinitely, and torture them, but would have stopped short of assassination because that would be wrong? This is exactly the same policy of targeted assassination that began under Bush/Cheney, and exactly the same national security stonewalling it used whenever it got caught. Anyone who approved of it under the GOP has no reason to complain now.

      Quote  Link

    Report

  4. Ok, imagine the following:

    You work in the white house, this idea is floated and you successfully convinve everyone exactly how terrible it is. Now what do you do about this Anwar al-Aulaqi who your intelligence is telling you is leading an al-Qaeda Cell?

    Remember placing him on Capture-or-Kill is what you just successfully ruled out. I would also advise you to consider if you should be putting non-citizens on this list if it amounts to an execution order.

    If you can tell me what problems your approach fixes over what was actually done.

      Quote  Link

    Report

  5. 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.

      Quote  Link

    Report

    • @Boonton, why can’t we try him (in absentia) first?

      Have a grand jury look at the evidence.

      If we get through that, have a real trial and everything.

      Surely we have enough evidence to convict the guy, don’t we? Just based on stuff he’s done out in the open that aren’t state secrets or anything?

      The Jose Padilla thing taught me that the process is very important.

      Why can’t we follow the process on this guy?

        Quote  Link

      Report

      • @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.

          Quote  Link

        Report

          • @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?

              Quote  Link

            Report

            • @Boonton, is the defendant present for the grand jury?

              I honestly think that if we can’t get enough on the guy to indict him, we shouldn’t kill him.

              If, for example, all the dude is doing is “saying things”, I don’t think we ought to kill him.

              We’re not Muslims.

                Quote  Link

              Report

            • @Boonton,
              Drones are just as bad — they are video games kiiling people without sufficient intelligence — there have been many innocent people killed — it’s a cowardly, reckless way to strike at the enemy — let Allah sort them out. It sounds cool and technologically savvy, unless you’re an innocent Pakistani in the wrong place at the wrong time. What would we do if a country was sending drones into Texas killing children for being too near a suspected target? We’ve got to get over this cross between John Wayne and Luke Skywalker and put an end to this madness.

                Quote  Link

              Report

            • @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.

                Quote  Link

              Report

              • Shorter Boonton: Sometimes it becomes necessary to kill a man in order to save his civil liberties.

                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, as established by the AUMF. The Supreme Court has already rejected that argument. Worse, the powers asserted thereby include arbitrarily killing you while you sat watching TV in your living room in the United States. And afterward, no one would be allowed to complain.

                Is this really a power you’re comfortable letting our government have?

                  Quote  Link

                Report

            • @Boonton, but the guy is not a spotter. He’s a religious nutball who is speaking for Jihad.

              This is something that is perfectly legal to do.

              If you think that he ought to be a military target, then hand the problem of him to the military.

              If you think that he is a criminal and deserves the death penalty, then have a damn trial.

              If he’s merely a target of opportunity whose elimination would make the life of those in power somewhat easier, I’m afraid that *THAT* particular slope has been slid down a little too often in the last century or so for me to be comfortable with the idea.

                Quote  Link

              Report

            • @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.

                Quote  Link

              Report

  6. If our government could fight terrorists like the SDS and Simbionese Liberation Army with the normal Constitutional tools, why does it need new ‘tools’ – assassinations, torture, wiretapping etc. – to fight the current Islamic terrorists?

      Quote  Link

    Report

  7. 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.

      Quote  Link

    Report

    • @Boonton,

      Your legal theories are nonsense. If Awlaki is coordinating attacks, then we have a name for that action. It’s called treason. It’s in the Constitution. Killing him via death quad is not the way we deal with treason.

      And I again scoff at your claim that in order to save Mr. Awlaki’s civil liberties, we have no choice but to kill him. Is irony completely lost on you?

        Quote  Link

      Report

      • @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.

          Quote  Link

        Report

    • @Boonton, Boonton, keep in mind, I am not saying “you absolutely cannot assassinate him”.

      I am saying “you don’t get to pull this ‘state secrets’ bullshit and assassinate people… do it above board and say ‘here’s why we’re killing this guy’ in front of at least a grand jury and if you can’t get a grand jury to say that yeah the guy is guilty then you absolutely cannot kill him.”

      You don’t get to assassinate people without officially saying why.

      I don’t know why this is so controversial.

        Quote  Link

      Report

            • @Robert Cheeks, I’m thinking the ‘validity’ of the warrant, if you check the original situation, is highly questionable. The objective of the federal search of the Branch compound was to procure funding of the Congress for the ATF, to illustrate the usefulness of that agency. And, in the end it may not have been ‘waging war’ but it was every bit as much a massacre as 9/11.

                Quote  Link

              Report

            • @Robert Cheeks, If the warrant wasn’t valid the proper venue to challenge it would be in a courtroom where the defense would move to strike any evidence discovered in the search.

              Your alleged motivation, though, isn’t much of a cause. It’s hardly uncommon for law enforcement agencies to do a high profile investigation to curry favor with legislators and make a case for more funding. That doesn’t magically erase the fact that if there’s probable cause the warrant to search is valid.

              Considering we are now in the post-9/11 world, do you really think its a good idea to allow cult groups to amass large amounts of illegal weapons? Could you imagine a Muslim group doing that without any hassles?

                Quote  Link

              Report

            • @Robert Cheeks, You may want to familiarize yourself with the Waco incident. Respectfully, it doesn’t sound like you are.
              The reason, if I remember correctly, for the incursion was the allegation of ‘child molestation’. That isn’t within the federal purview. The guns were obtained legally and were repaired and resold for income at gun shows.
              I’m sticking with my story!

                Quote  Link

              Report

            • @Robert Cheeks, The potential that children were being actively molested was part of the justification for storming the compound at the end of the standoff (and I’m not sure why this is treated with such skepticism, the man was openly marrying 9 yr old girls). As for the guns being obtained legally, again that’s not really relevant. I know a guy who was charged with illegal gun possession because the police found a gun in his house during a search. Turns out it belonged to his father who had recently died and the state gives you something like 60 days to register a gun under those circumstances. He fought the charge and it was dropped, that was the proper place to address abuse of power….not by shooting the cops as they came thru the door.

                Quote  Link

              Report

            • @Robert Cheeks, Of course the other justification for raiding the compound was the memory of Jonestown…waking up one day discovering everyone had died in a mass suicide pact. That was not an unreasonable fear IMO, plus the fact that they have Wacoites on tape talking about spreading around gasoline makes me skeptical of the claim that storming the compound was only the government’s fault.

                Quote  Link

              Report

            • @Robert Cheeks, Boonton, you are a smart dude, and I like you. My one criticism is that perhaps you are just a bit too enamored with the central gummint.
              Step back a bit, remember your republican history, the beauty of federalism, not to mention anti-federalism, separation of power, states’ rights, and so forth and consider your last post.
              And, always remember, as smart as you are we all need a little hep, now and then.

                Quote  Link

              Report

  8. Boonton, down here.

    Here is the biggest problem with your examples as you are giving them.

    You have uncanny familiarity with them. Instead of saying “imagine a man who is making war against the US…”, you should be saying “Imagine the governmet says ‘this guy is making war against the US’.”

    Which brings me back to Jose Padilla.

    If I wanted to imagine someone who was making a dirty bomb, I could easily imagine detaining him.

    The problem is that when the government finally bothered to officially press charges, what happened?

    It turns out that they were lying about the dirty bomb. Those charges were *NOWHERE* near what he was charged with.

    The government ought not get the benefit of the doubt on this one.

      Quote  Link

    Report

    • @Jaybird, @Jaybird, Its true I am quite familiar with my made up hypotheticals, that’s the purpose of them. So let’s take it another step.

      Say the man in the airship gets thirsty and lands in Hawaii to hit the Starbucks. He is, as of that point, well under the jurisdiction of the United States. The US could detain him and would have to charge him or, under habeas corpus, have to release him if they couldn’t. But as far as being a military target, he would cease to be one when he lands his ship and can no longer help the Japanese attack.

      Jose Padila was not, then, a military target. Once he was within a jurisdiction that could easily arrest him, he IMO could not longer be considered a valid military target. This would be different if, say, he was driving a tank through the middle of Chicago or piloting a MiG.

      Now you’re right, there really isn’t a good review of military targets. If the US bombs some village in Afghanistan because it says ‘insurgents’ are there there’s no system of judicial review at all. The only real review I’m aware of is that the military can press criminal charges against its own if they are killing people who they know are not enemies. That doesn’t really change the fact that if this guy is an a ‘hit list’ it is not quite accurate to call it an ‘extrajudicial assassination’. It’s not judicial at all but military and it’s not all that different from any other targeted strike that happens now.

        Quote  Link

      Report

      • @Boonton,

        So much of the discussion of your hypotheticals has been driven by ignorance of international law that I don’t even know where to begin. Admittedly, I’ve had little patience for them, seeing as you don’t particularly care about such nuances, and if Barack Obama says “shoot em!” you’ve repeatedly said that you’re fine with it, and that said solution — in your humble opinion — is the one that tends on the whole to preserve (not to destroy) civil liberties.

        Such doesn’t really deserve a response, but I’ll tackle your hypothetical above, with the understanding that I am not endorsing anything else you’ve written on this thread.

        You write:

        Say the man in the airship gets thirsty and lands in Hawaii to hit the Starbucks. He is, as of that point, well under the jurisdiction of the United States. The US could detain him and would have to charge him or, under habeas corpus, have to release him if they couldn’t. But as far as being a military target, he would cease to be one when he lands his ship and can no longer help the Japanese attack.

        Which is incorrect. A belligerent in time of war who lays down his arms and gets captured has a particular status in international law. He is a prisoner of war. He is not charged with a crime but is instead held in prison, under tolerable conditions, until the end of hostilities. He is thereupon repatriated.

        If he turns out to be a U.S. citizen, he should be tried for treason.

        Al Qaeda makes things rather more difficult, as the hostilities are presumably never going to end. You can’t get an ideology to surrender. This makes POW status rather absurd, because repatriation isn’t going to happen.

        Jose Padilla, as an American citizen captured in Chicago, should have been tried for treason. Otherwise he should have been released. The case is simple enough that it’s truly an embarrassment how much it’s been botched.

          Quote  Link

        Report

        • @Jason Kuznicki, Which is incorrect. A belligerent in time of war who lays down his arms and gets captured has a particular status in international law. He is a prisoner of war.

          This is true insofar as he is a prisoner of war. If he is an illegal combatant, though, he is then capable of being charged with criminal acts. Likewise if he is an American citizen he can also be charged with criminal acts for fighting ‘on the other side’.

          But that’s missing the point. In the case I described the man would be a military target while he is in his airship helping the attack but would cease to be one when he is not and within the jurisdiction of the US. To Jaybird’s point there’s no ‘process’ that evaluates the military’s determination that the man in the airship is a legitimate target. There is no constitutional requirement to take his citizenship into special consideration.

          Al Qaeda makes things rather more difficult, as the hostilities are presumably never going to end. You can’t get an ideology to surrender. This makes POW status rather absurd, because repatriation isn’t going to happen.

          Al Qaeda, not being uniformed regular troops, does not qualify for POW status. They are subject to criminal punishment as determined by due process. This is in contrast to POWs who cannot be so held. Regular Japanese or German troops, for example, could not be charged with ‘attempted murder’ for fighting US troops.

          I mostly agree with you about Jose Padilla but I don’t get the connection to the Yeman case. Padilla was in US custody from day one while this guy in Yeman is not and appears unwilling to subject himself to any gov’ts jurisdiction.

            Quote  Link

          Report

          • The man would not cease to be a military target while he is not actively fighting. If that were true, you couldn’t even kill soldiers on the battlefield, except for the moments when they were firing their weapons. That’s just transparently false. There are well-established criteria for determining when someone is a combatant, including a formal process of induction, a position within a military chain of command, and wearing a uniform. Having these things (sometimes not with the uniform, but often yes) gives one combatant status. Even if you’re in an enemy Starbucks sipping a cappuccino.

            The airship example is also fatally flawed for another reason: The man in the airship presents a clear, imminent danger. When that’s the case, all bets are off, and deadly force is always legitimate, even against U.S. citizens. To imagine that it could be otherwise is to turn war into a tabletop roleplaying game.

            As to prosecuting Al Qaeda criminally, I agree. We should, at least when they are not presenting a similar clear, imminent danger. If they are doing so, then kill them.

              Quote  Link

            Report

            • @Jason Kuznicki, The man would not cease to be a military target while he is not actively fighting. If that were true, you couldn’t even kill soldiers on the battlefield, except for the moments when they were firing their weapons.

              Notice in my hypothetical the man lands and walks into a Starbucks. You are correct, those actively fighting the US are not just legitimate military targets when they are literally shooting their guns. They remain military targets as they sleep in their bases, as they eat, as they go to the bathroom. The US can strike them by surprise and doesn’t have to wait until they pick the gun back up and start shooting. In my hypothetical, though, the man clearly places himself within the jurisidiction and control of the gov’t so he is no longer a legitimate military target (you can say the same for Jose Padilla). Likewise consider the military operation to kill Hitler and the German high command in Inglourious Basterds. This would be a legitimate military operation even though at that very moment the Germany military were not actively fighting Americans but enjoying themselves at a movie premier.

              So now let me turn the question on you. If a legitimate military target remains one even when he isn’t actively shooting the gun then why again is this guy not a legitimate target? You seem to agree that if he was in AFghanistan issuing orders to suicide bombers that would place him on a ‘battlefield’ and therefore be a legitimate target for, say, a drone strike. Why is issuing orders in Yemen somehow not make him a target? If a German soldier was in Mexico coordinating an attack on the US no one would say he wasn’t a legitimate target because Congress never included Mexico in its post Pearl Harbor war declaration.

              That’s just transparently false. There are well-established criteria for determining when someone is a combatant, including a formal process of induction, a position within a military chain of command, and wearing a uniform. Having these things (sometimes not with the uniform, but often yes) gives one combatant status. Even if you’re in an enemy Starbucks sipping a cappuccino.

              That’s relevant for those captured but since this guy has not been captured it doesn’t apply. I think here you’re mirroring the problem the Bush administration had. Bush basically seemed like he was taking the view that everything was a military operation if he said it was…even if the guy was just sitting in a Starbucks with plenty of police around who could stop him from doing anything. You seem like you’re taking the view that unless someone makes legal combatant status they cannot be attacked in a military manner. This, IMO, is an issue. Al Qaeda may not be legal combatants but they are combatants. We have every right to not only attack the Al Qaeda terrorist approaching with a suicide belt on him but also bomb the base 500 miles away where Al Qaeda is conducting training even though they aren’t posing an immediate direct threat. There are two tracks here, a judicial track and a military one. Where I think Bush went wrong was to assert that the Executive could simply opt for the military track whenever they wanted….even if the guy was sitting in a jail cell safely inside the US. I don’t think so. I think the military track is acceptable for:

              1. Clear an immediate dangers (i.e. the guy driving a tank in the middle of Chicago firing off live rounds).

              2. Clearly in a battlefield zone.

              3. When a person is in a ‘lawless zone’ which basically means a place where he is able to operate without any responsible gov’t being able to be held accountable for his actions. I think this is a pretty important concept here that keeps getting missed. Due process is a two way street. You don’t have to live under a gov’t that’s friendly with the US but if you’re going to live outside the law where a gov’t cannot be held responsible for your actions either because the gov’t doesn’t exist or because its too weak to really have power over you then you can’t at the same time insist on enjoying the protection of law. This is, I think, the key difference between the US launching a drone strike on this guy and launching a strike on, say, a harsh critic of the US who lives in Paris.

                Quote  Link

              Report

              • So now let me turn the question on you. If a legitimate military target remains one even when he isn’t actively shooting the gun then why again is this guy not a legitimate target? You seem to agree that if he was in AFghanistan issuing orders to suicide bombers that would place him on a ‘battlefield’ and therefore be a legitimate target for, say, a drone strike. Why is issuing orders in Yemen somehow not make him a target? If a German soldier was in Mexico coordinating an attack on the US no one would say he wasn’t a legitimate target because Congress never included Mexico in its post Pearl Harbor war declaration.

                Because Yemen is not a theater of the war. That’s why he’s not a legitimate military target. He may still be apprehended for treason, and he may still be killed in an attempt at apprehension. But to say “shoot first,” as though this were a war zone, is not appropriate. If it were, then the cafes of Paris or the office buildings of DC would be fair game, too.

                You seem like you’re taking the view that unless someone makes legal combatant status they cannot be attacked in a military manner.

                No. I’m taking the view that only legal combatants get POW status, which for the USA can be altogether decent. But this isn’t a real question here, because as a U.S. citizen, we have clear grounds for a charge of treason in the federal criminal justice system.

                On reading your other comments, the whole question may turn on whether we consider Yemen a war zone. I believe that conceding this point would turn the entire world into a war zone, in a perpetual war, where unlawful combatant status could be given in principle to anyone we didn’t like. They could be detained forever, in secret, without charges, tortured, and all the rest. That’s an unacceptable and even an absurd outcome, which is why I resist it.

                You on the other hand appear to believe that Yemen is insufficiently lawful to warrant our own abiding by the rule of law when we’re there. It’s a funny way to spread lawfulness — we don’t like you, so all bets are off?

                  Quote  Link

                Report

            • @Jason Kuznicki, Because Yemen is not a theater of the war. That’s why he’s not a legitimate military target.

              Why not? It’s a known terrorist hot spot and Congressional resolution did not limit the use of force to only Afghanistan and Iraq.

              But to say “shoot first,” as though this were a war zone, is not appropriate. If it were, then the cafes of Paris or the office buildings of DC would be fair game, too.

              There seems to be a very real difference between Yemen and the cafes of Paris. Paris seems to be under a government that is able and willing to control what happens on their territory, including arresting a person who is coordinating attacks from his laptop at a cafe. Yemen does not.

              But this isn’t a real question here, because as a U.S. citizen, we have clear grounds for a charge of treason in the federal criminal justice system.

              True I agree but this comes into play after he is in custody. If he, say, surrenders at the American embassy I would say he is not a military target but he is not in custody and I don’t think the US is obligated to risk lives on a daring raid to bring him into custody.

              On reading your other comments, the whole question may turn on whether we consider Yemen a war zone. I believe that conceding this point would turn the entire world into a war zone, in a perpetual war, where unlawful combatant status could be given in principle to anyone we didn’t like.

              I do not think that the question turns on this. I think the question turns on whether he is acting as a combatant & is in a lawless zone. If you want a comic book hypothetical, he could be living in an underground base on the moon directing attacks and the military could still attack him. This is fitting with Al Qaeda’s pattern of seeking lawless areas to set up shop (Sudan, Somalia, Afghanistan, and now the northern regions of Pakistan) while spurning ones that have strong central gov’ts that are able to control what goes on in their territory (Syria, Egypt, Saudi Arabia, Iran etc.).

              They could be detained forever, in secret, without charges, tortured, and all the rest. That’s an unacceptable and even an absurd outcome, which is why I resist it.

              Here I think I agree with you. I don’t buy the Bush argument that illegal combatants means there are no rules. Illegal combatants are criminals and need to be treated as such.

              You on the other hand appear to believe that Yemen is insufficiently lawful to warrant our own abiding by the rule of law when we’re there. It’s a funny way to spread lawfulness — we don’t like you, so all bets are off?

              What law are you talking about? The use of force resolution did not limit the war to just two countries but to wherever terrorists are. You seem to be saying just because this guy sets up shop outside of the ‘formal’ war theater he is immune from a military strike.

                Quote  Link

              Report

              • @Boonton,

                here seems to be a very real difference between Yemen and the cafes of Paris.

                Seems to be? My friend, you can’t have it both ways! The congressional resolution did not limit the use of force to Afghanistan and Iraq.

                Your words, not mine. Paris is a war zone. The entire world is.

                That — or AUMF was flawed to begin with. Which might be what we’re discovering here. I’d be willing to accept that as the conclusion.

                  Quote  Link

                Report

            • @Jason Kuznicki, It very well may have been flawed but there still remains a difference between Paris and Yemen. If the guy is in Paris directing terrorism from his laptop a phone call will be made by the US to France and the guy will be arrested. That will not happen in Yemen.

              On one hand you are looking at a case where the hypothetical terrorist is under the nexis of the judicial/law enforcement system and in the other hand he is not.

              Whatever system you would propose you have to consider that Al Qaeda does not end up in places like Somalia, Yemen and Pakistan-Afghanistan by accident. These places are chosen because they lack gov’t and a rule of law. Why do we pretend a place that has these things, like Paris, is exactly the same thing? It clearly is not.

                Quote  Link

              Report

    • @Jaybird, You have uncanny familiarity with them. Instead of saying “imagine a man who is making war against the US…”, you should be saying “Imagine the governmet says ‘this guy is making war against the US’.”

      And how do we know? You say its ok for the military to shoot down the man in the airship over Pearl Harbor because I’ve imagined an example where I know he is making war against the US. But what do the people of the US really know? What does his family know? When the navy says they shot down the man because he was helping the Japanese aren’t we really just trusting the gov’t there? Whose to say he wasn’t just a man who happened to own an airship and was sightseeing the unlucky day Japan decided to attack? Whose to say he wasn’t really shot down because he was a big critic of FDR and the attack gave the perfect cover to off him?

      The military does not convene a grand jury to decide whether to shoot him down or not, there’s no judicial review first. Only a commanding officer giving permission to engage the target.

        Quote  Link

      Report

        • @Jaybird, And your answer is what? Do you think this is the first person ever targeted in by the US military? What exactly is it? Because Yeman has nothing to do with a war on terrorism despite the fact that the USS Cole bombing happened there and Al Qaeda has long been known to operate there? Because he is a US citizen? The Constitution makes no distinction between citizens and non-citizens when it comes to extra-judicial killings AND it’s only a fluke that we know he’s a citizen. Do we have birth certificates on all Al Qaeda leaders to know which ones might have had an American parent or were born on American soil? You began saying we should follow ‘the process’ but the process pretty clearly is that the military is given broad trust in deciding which targets it needs to take out in a war. If you want to change that then go ahead but be clear that’s what you’re doing and be ready to propose something more sensible than a fully blown grand jury hearing for each drone attack.

            Quote  Link

          Report

          • @Boonton, so the government can kill whomever it wants so long as a war has been declared?

            “Why did you kill this guy?”
            “Don’t have to say, state secret.”

            You *AGREE* with that exchange?

            Is there anyone that you feel that the government shouldn’t be able to kill without at least saying “why I did it”?

              Quote  Link

            Report

            • @Jaybird, This is a conversation I’d have if you have a gov’t killing clearly outside a war zone. If the gov’t shoots this guy in the streets of Chicago, inside an American embassy, or even in a Paris coffee shop or even an Iranian one I’d say yea we could be in a situation where legitimate military engagement should be excluded.

              But Yeman? And more importantly this guy seems to be outside the effective jurisdiction of any responsible gov’t seems to open up that he is a legitimate military target and my question then goes back to when has the military ever had their targeting decisions subjected to judicial review?

                Quote  Link

              Report

            • @Boonton, so what makes Yemen a warzone?

              We have not declared war.
              Congress has not said anything.

              Does the President get to say “look, it’s a shitty country, it’s obviously a war zone, so of course we killed a dude, and we won’t tell you why, state secret”?

                Quote  Link

              Report

            • @Jaybird, so what makes Yemen a warzone?

              Well the fact that Yemen appears to be an area that Al Qaeda operates out of and the gov’t of Yemen seems unable to control them. I could cite, for example, the USS Cole bombing and I’m sure there’s plenty of more recent intelligence that can be brought in to bear. Do you really think Yemen’s connection to terrorism is based on nothing other than it being a ‘shitty country’ in the Middle East?

              Does the President get to say “look, it’s a shitty country, it’s obviously a war zone, so of course we killed a dude, and we won’t tell you why, state secret”?

              Again you act like this is the first person the gov’t has killed in military operations. Where in the Constitution does it say the gov’t can kill people in, say, Afghanistan? There is no declared war against Afghanistan.

                Quote  Link

              Report

            • @Boonton, I am *NOT* arguing that the government shouldn’t be able to kill folks.

              There are circumstances under which, well, shit happens.

              *HOWEVER*

              The government ought *NEVER* be able to kill folks without saying “here’s why we killed folks”.

              Certainly not in a country with which we have not declared war in order to kill an American citizen.

                Quote  Link

              Report

            • @Jaybird, I do not want the government to have the power to invade countries and kill people without anybody (Congress, President, whomever) giving an official reason

              Well this thread began with much ado about the fact that this guy is a US citizen and its supposedly a civil liberties violation that the courts don’t want to grant him blanket immunity to being a military target. Now we are onto something totally different, the President’s War Powers. I agree that this is a problematic area but it’s silly to pretend its because we are ignoring the Constitution. The Constitution is simply not very strong here. It did not define very well whether or not the President can start an undeclared war with a country or if he needs Congress. Perhaps they simply did not consider it an issue since standing armies were not the norm and they lived in an age where war had a lot of formality.

              But Congress did authorize war against terrorists and against the terrorists who participated in 9/11 and are seeking additional 9/11 attacks specifically. They did not restrict this to just Iraq and Afghanistan but to wherever they may be found. I still think the ‘judicial track’ serves as protection when dealing with areas of clear jurisdiction but you can’t honestly say Yemen was outside of the scope of what Congress authorized. You are talking about a country that was known to be a hotbed of Al Qaeda activity *before* 9/11.

              The government ought *NEVER* be able to kill folks without saying “here’s why we killed folks”.

              Has the gov’t produced a list of people killed in Afghanistan along with the reasons why? Or produced a list of people it is trying to kill? You are acting like this case is an exception but its not, it’s actually the norm. The exception would be requiring the military to justify to a court who it considers a target and why simply because he is an American citizen. Again the Constitution says nothing special about citizenship here. There is no special provision that allows the gov’t to deprive non-citizens of life without due process of law.

                Quote  Link

              Report

            • @Boonton, Well this thread began with much ado about the fact that this guy is a US citizen and its supposedly a civil liberties violation that the courts don’t want to grant him blanket immunity to being a military target.

              The thread began with people complaining that the government was targeting American Citizens for assassination and stating “state secrets” as a justification and how not even Hurricane W. Hitlerburton claimed such a power.

                Quote  Link

              Report

Leave a Reply

Your email address will not be published. Required fields are marked *