This is what I’m (repeatedly) asserting to be the crux of the matter. I do not think it so obvious as to be simply assumed that the battlefield and imminence exceptions do not apply to Al Awlaki.
Since you apparently agree that the Supreme Court’s holdings concerning detention do not address the scope or application of either of those principles, then the pending question remains what authority you have for your position as to their scope.
It seems to me that the definition of the battlefield and the scope of imminence of a national security threat are precisely the sort of questions that the Courts have always properly refused to answer. But putting justiciability issue aside, what limiting principle do you propose on either issue that makes sense in 2013?
The Constitution. The USSC can do whatever they want. If they thought that they had the authority to hear the case, which they obviously did, then they have the authority to restrain the president from ordering anything that they rule on.
I understand them better than you, in that I keep pointing out that those cases have nothing to do with the direction and command of military operations, and you are reluctant to acknowledge that. Nobody is arguing that the Commander IN Chief power is unlimited. That straw man is already dead, time to stop flogging it.
Seriously, you think seizing a steel mill is comparable to issuing an order to the Army?
Fair enough. This position is a far cry from what Ravenman and others have argued in this, and the other threads. Luckily for me, Holder kinda agrees with me.
But wouldn’t it be nice if we had a President that would actually provide evidence that a US citizen did, in fact, fit those exceptions before having him killed? Wouldn’t it be even better if the President put into place a system, with judicial oversight, to make such determinations before bombing? Wouldn’t it be just fucking swell if, instead of hiding behind standing, state secrets, or national security, the President had the balls to come forward with his evidence and have it tested.
I’d like that. And so, I expect, would you.
But, again, it was argued that the Courts should not have the same authority to so rule in the cases of detention. The detention, and what happens to them afterwards, is done pursuant to the AUMF and is well within the traditional powers the President has exercised pursuant to his role as Commander and Chief.
Yet, somehow, the Supreme Court did intervene. They did set limits on what the President, with an AUMF, with the military, and with his powers, could do. So simply repeating that somehow they’re irrelevant is, to my mind, simple handwaving. There is certainly room for argument that killing people is more commander in chiefy than detaining them, just as there is room for argument that killing people should require more due processiness than simply detaining them. These are things that can, and should, be debated. Simply saying “well, due process doesn’t apply” or “the President said so, so there!” is just idiocy.
How about prior judicial authorization before killing US citizens? How about a system, even if done in secret (but with judicial oversight) like FISA, where the President tests his evidence of battlefieldness or imminency of threat? How about we have more transparency in the decision making process instead of hiding? How about Congress gets involved and limits the AUMF? How about the President decides he isn’t Constitutionally authorized to kill anyone he wants because he thinks they’re bad people? These seem like pretty good ideas to me, and a far cry better than “well he did it, he said he could, we’re done.”
And the detainees were subject to military operations. As I’ve said countless times, you are under the impression that if the President uses the military, there is no Constitutional limit to his power. Want to kill a US citizen on US soil? Have the army shoot him. It’s alright, it’s THE MILITARY! Catch a US citizen conspiring to commit an act of terror? Just have the military bomb the apartment building he’s in. It’s alright. It’s THE MILITARY!!!The Constitution does not stop applying when an action involves the military.
There is certainly a great amount of deference to the President in the exercise of those powers, but likewise those powers aren’t unlimited.
Then let me ask you what, if any, limits do you think are on the President in executing his powers pursuant to the AUMF? Can he invade Canada? Can he bomb a house in Tampa if he thinks Al Qaeda members are meeting there planning a terrorist attack? Why can’t he? Can he lock up forever a US citizen living in France if he thinks that he’s a potential threat to the US? Why not? What are these limits you see?
I don’t actually think that gets you around the question. Unless you intend to apply that procedure to every military killing (and I assume you do not), then you still must answer the analytically prior question of when this procedure is to apply. If the answer is that it only applies to U.S. citizens, then I strongly disagree. I see no reason why it should be easier to take the life of a Yemeni than a dude from Sarasota.
And it isn’t obvious to me, in any event, that expanding the government’s use of secret, ex parte trial in absentia is costless or helpful, especially when any standard you’re going to ask that court to apply is going to be very abstract and contingent on what the executive is telling you the facts are. Frankly, I’d be more afraid of the expansion of that “procedure” to more ordinary domestic matters than I am that some future president will decide to start assassinating political opponents or whatever parade of horribles one might offer concerning targeted killings.
The limits are the text of the AUMF and congressional oversight.
If the Congress does not like the way the President is running the war, Congress can revise the AUMF, it can limit funds for any reason it wishes (including prohibiting funds for operations such as those we are discussing, or prohibiting any other kinds of operations that Congress does not support), or impeach the president for doing something unconscionable (like invading Toronto or using a nuclear weapon). The same tools that Congress has in oversight of any war.
With respect to your comment about bombing Tampa, that would not be covered by the AUMF because the AUMF specifically states, in black and white text, that the use of force is to be used to “prevent any future acts of international terrorism.” There is no indication whatsoever that the AUMF covers the use of military force within the United States, therefore the law does not authorize it.
I’m not sure I follow, especially what you are referring to when you say “procedure”. You’ve lost me.
The difference is when the Constitution applies. It, in general, applies to US citizens, to people in the US, and people in US territories. It doesn’t apply to drone strikes in Pakistan, pirates in Somalia, or pancakes. It does apply to some guy in Sarasota, but, unless it’s a US citizen, it doesn’t to a guy in Yemen. So, unless the Constitution applies, there is no need to “this procedure”.
Why? We have the precedent of military tribunals trying spies and saboteurs. We have FISA courts? We have the precedent of differing levels of what process is “due”, what evidence should be allowed, and what standards of proof need to be met. Why is it tough to grasp that having such a system is better than simply saying “he said so, so it’s OK”?
Again, I’m not sure I understand what points you are trying to make.
And who decides those limits? Let me guess. The President.
And which the judiciary has in any war. The Supreme Court made rulings on the trial and killing of spies who were US citizens in WWII, the Supreme Court made rulings on what the President can do to secure the tools for a war. The Supreme Court made rulings on when the military can detain and what they can do to, international terrorists in Guantanamo.
Alrighty, the people in Tampa includes a member of Al Qaeda. Or a person from France. Do you think that “international terrorism” never occurs in the US? That terrorists won’t ever make it here, so that any terroristic activities that occur can only occur outside the US? The AUMF certainly authorized the detention of Jose Padilla, who was arrested in the US. The detainees in Guantanamo was ruled to be in the territories of the US also, which was pursuant to the AUMF. I don’t think anyone has argued that the AUMF doesn’t authorize the President to act in the US, in fact, I think it’s quite the opposite.
My reply assumed we were talking about how the Court *ought *to interpret due process. If we’re only proposing approaches consistent with current precedent, I think I’m on a lot firmer ground than you are.
In any event, I don’t think you are advocating that your ex parte procedure apply whenever a government official contemplates taking the life of a U.S. citizen. If a U.S. citizen joins the Nazis in Southern France, we must get a court order before bombing his convoy? A police officer must get a court order before killing someone in self-defense in Brooklyn? I don’t think that’s what you’re saying. I think you’re still making space for non-judicial process in certain circumstances, and implicitly limiting your proposed ex parte process to some as-yet unspecified subset of government killing of U.S. citizens. That’s the circular problem I’m identifying.
And time has shown a lot of potential for abuse in both FISA and military tribunals (see, e.g., the Presidency of George W. Bush). By contrast, I’m not aware of Bush having improperly assassinated any U.S. citizens.
My point is that we dilute the meaning of due process by attempting to apply it too broadly. My point is also that the value of due process varies with the quality of the process. So, as a practical matter, it shouldn’t take much downside to convince us that secret, ex parte trials in absentia aren’t worth it. If, for example, there’s any risk that such de minimis process would interfere with military operations, then it doesn’t seem worth it to me. Whereas it would take more downside to convince me that trials for captured enemy combatants aren’t worth it, because genuine trials are worth quite a bit.
No! The war power is shared between the President and Congress. It is not entirely invested in either one of them, and it is up to those two branches to exercise the checks and balances on that power.
None of which relate to the prosecution of a war, the selection of targets, the direction to attack, the rules of engagement, and so on. I don’t know how many more times I can repeat this: the judiciary has no role in those matters, but the judiciary has a role in matters relating to detainees, military justice, and similar things.
I’m going to repeat this again: the exercise and policy over detainees is a different question than command and direction of miltiary forces who are ordered to use lethal force to achieve some type of objective.
And I think seizing US persons within the US in order to subject them to military detention is totally wrong. I also have reservations about seizing foreign persons within the US to subject them to military detention, depending on the facts of the case, but I can’t say that it is categorically wrong. ETA: so if nobody is questioning whether the President can invoke the AUMF to take actions within the United States, I hereby raise my hand and question the legality of that as a general principle. So there.
I’m having difficulty understanding the process by which the rationale for this extrajudicial killing was aligned with the AUMF. It may all be well and good to theorize as to what happened behind closed doors and say that if it had been us we may well have been willing to make the same call based on what we know of Anwar al-Aulaqi, and by extension his son Abdulrahman al-Aulaqi(also a US citizen killed in a CIA targeted drone strike). But it would be completely fair for others to ask us what sources we used for information on al-Aulaqi’s actions and intentions in making this determination.
I’m not saying the wrong call was made. The world may well be a better place without these two in it. But if you believe that, and you’re willing to act on it, as the President and his administration clearly did, then you should be willing to man up and tell people why you believed that. Transparency is how we maintain accountability. And people who can launch hellfire missiles should be accountable for the decisions they make which lead up to the launch. It keeps them from making sloppy decisions, or at least gives us the knowledge of their sloppy decision making so we can kick them out next election cycle.
The war power is shared between those two. But the power to interpret the Constitution, to determine when, where, and to who, the Constitution applies, and whether Presidential actions are constitutional is invested in the judiciary. I’m not asking the Supreme Court to declare war, go fight in Afghanistan (although I do get a Taliban feel from Scalia), or order troops, but they do get to do their job interpreting the Constitution.
How is the detention of enemy combatants NOT the “prosecution of war”? How is reviewing the propriety of a MILITARY trial not the “prosecution of war”?
And, if so, how is my statement: “Catch a US citizen conspiring to commit an act of terror? Just have the military bomb the apartment building he’s in. It’s alright. It’s THE MILITARY!!” a strawman? I don’t see how, when you advocate a position that the judiciary cannot review military actions, you can call drawing conclusions like that a strawman.
At least we found a piece of agreement. Now, does “wrong” mean “unconstitutional”? Is the President not authorized to use the military to detain any US persons, even if they are involved in international terrorism.
You have spent hours of my time requesting cites and caselaw for my propositions (which I provided), so I guess I’ll ask you for some now. What support do you have for the proposition that AUMF does not allow the President to take any action fighting international terrorism inside the US or US territory? Because Padilla, the detainee cases, the language of the AUMF (where “international” describes terrorism and not where the force takes place, and the actions of both Presidents acting under the AUMF, disagree.
They’re not going to disclose anything that jeopardizes sources of intelligence, but we know why he was considered a terrorist. You can find the basics easily enough in news stories.
Insofar as the Constitutional issue in question is the congressional power to “make rules for captures on land and water,” is it close, but I do not believe the same constitutional issue is at stake.
For me, the issue of who, what, and when military action is ordered against an enemy is solely a matter between Congress and the President. Matters involving detention of enemies, compliance with the laws of war, and similar matters are very much issues that the judiciary has a role in.
So we’ve moved onto my proposed solution to the problem? My bad, I thought we were still discussing the Al Awlaki case and the Constitution.
But I’m still lost. When the killing involves the exceptions we’ve previously discussed (combat battlefield or deadly force exception), there is no need for a pre-action determination. Nazi’s in France? Combat. Brooklyn self defense? Deadly Force. Those actions should be reviewed after the fact, but if there is no opportunity to do so, we have to wait until after.
Of course. But I think military tribunals with judicial oversight and FISA are massively less likely to be abused than a President who makes the decision himself without disclosing any information, without presenting any evidence, and without any transparency. Not ideal, but a helluva lot better.
If you want to stake out that ground, by all means, have at it. But at least join me in condemning Obama’s killing of citizens without oversight before you do.