Court: White House has no legal duty to justify killing Americans abroad with drone strikes

Great Debates
201

Detention of enemies is part of “prosecution of war,” as is the provision of supplies, management of national resources, recruiting and training, and many other things. I am not talking about those things. I am concerned with the command and direction of military forces that are engaging in hostile and lethal activities. I am not talking about what happens if we capture a person.

The judiciary can review compliance with the laws of war. It cannot inject itself with the command of the military.

I’m not totally sure I understand your second sentence here… Except in the most extreme (and probably unrealistic) circumstances (like I mention below), I believe that the US military should not be used to pursue US persons on US soil. I base this on the expectation that in all but the most unlikely scenarios, the matter of capturing a US or a foreign person on US soil will be a law enforcement matter, and the Posse Comitatus Act prohibits the use of the military on US soil for law enforcement purposes. I do not believe that Congress specifically authorized such actions in the AUMF, so the PCA would control. I can’t say I thought much about the question as a constitutional matter, I think the law is sufficiently clear on this point.

As far as the US military being used overseas to capture US persons, to the extent that the AUMF allows military operations against Al Qaida and its associates, yes, I think that’s acceptable and constitutional. Sending the military to capture US persons for other reasons – like because they are notorious criminals – I think I would be very cautious about that simply on policy grounds before even considering the constitutionality of it.

I rely on the text of the AUMF itself. There’s no indication that it contemplated having a shooting war on the soil of the United States. If Congress intended that, it should have wrote it in the resolution.

Now, if something bizarre and extreme happened, like Al Qaida managed to attempt an amphibious landing in Boston, the President would have inherent powers to repel that attack regardless of what the AUMF says, just like the President could act to repel a military attack on our shores by the Rooskies. But I do not believe that there is any evidence whatsoever that Congress intended there to be contemplated, planned US military attacks within our own cities.

It is my opinion that declarations of war are presumed to be authorizations to use military force externally to the maximum extent practicable, and that extreme, maximum deference must be given domestically to law enforcement rather than military actions.

Also, just to be clear – I think Padilla should not have been transferred to military custody. I haven’t thought about whether that was unconstitutional or not, I think it’s just simply wrong.

202

So, again, how was “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?

If the law is clear, can you get me a case? I think the Supreme Court would be surprised to find that they were wrong saying that the AUMF authorized the detention of people in US territories.

But they certainly didn’t eliminate it. As I pointed out, the AUMF says “international” terrorism, not “international” force or “no force in the US”. And, as I pointed out, the detention of prisoners is using force and they’ve done that in the US and US territories.

WOLVERINES!!!

203

That doesn’t make any sense. The question is to whom does this ex parte procedure apply. If you say it applies to all killing of U.S. citizens, then you have to bite the bullet on those examples. If you say it doesn’t apply when the battlefield and self-defense exceptions apply, then you’ve defeated the purpose since the whole point is that the Administration thinks those exceptions are why it doesn’t have to provide judicial process in this case.

204

Because I’ve told you a thousand times that I don’t think the AUMF authorizes the president to bomb apartment buildings in Tampa. Upon more reflect, I’m not sure if you are offering this up as a strawman, or if your memory is selective on this point. But I’m telling you for the 1,001th time: the AUMF does not, in my view, authorize the President to launch military attacks within the US.

The text of the laws are clear to me. To the extent that the Supreme Court has ruled otherwise, I believe they are wrong.

But let’s cut the BS: do you support US citizens being captured in the US and sent to military prisons? Because I’m pretty sure you don’t, but you seem to want to give me a hard time about a position that I think we agree upon. Surely you aren’t simply trying to provoke me on this point, are you?

Same question. Do you support the use of US armed forces for military operations within the US? If not, it seems you’re just trying to provoke an argument over nothing. If you do support US military raids within the US, I’m at a loss for words.

As I said before, I believe the natural presumption is for all declarations of war and use of force to apply primarily to overseas operations. If the Congress wanted US military commando raids and bombing runs to occur in the US, I would expect that to have been addressed in the AUMF. So, I disagree with your characterization of the term “international terrorism.”

205

I’m almost, but not quite, wholly unmoved by appeals to protect intelligence sources. As demonstrated by the clear intelligence failures prior to the Iraq war and multiple times with the hunt for Bin Laden, et al intelligence sources are neither as valuable nor as accurate(indeed, sometimes even existent), as they should be to make that justification valid. The furthest I’m willing to go to accommodate that concern is a review of the intelligence by cleared members of congress or the judiciary. The administration should share the data with members of the other branches who have the clearance or authority to view/review other matters impacting national security. I’m not saying they have to publish it on the front page, but in the bottom of a locked filing cabinet in a disused lavatory with a sign on the door saying “Beware of the leopard” is unacceptable.

As for al-Aulaqi’s status as a terrorist being established by reports in the newspapers, this is not the standard of evidence we should use before raining hellfire down on people. If they didn’t have something better than what the New York Times had reported then they should either have not launched that missile, or they should have admitted that was the basis they used. It’s not like it’s their job to protect the NYT’s sources. You can’t have it both ways. Either they had independent, and secret, sources which should not be divulged they used to make this decision, or they used public data, which does not require their protection.

In either case a rational review is possible. By security cleared members of the other branches in the case of independent and sensitive information, or by everyone if they just used public data. In either case the decision should be auditable, it’s just a difference in the audit process. The administration’s claim of privilege for its decisions is highly worrying. Who watches the Watchmen?

Enjoy,
Steven

206

I don’t think we know the degree of Congressional involvement, do we?

207

I’m not sure what response you expect other than “tough luck.” I agree that some intelligence sources are good and some aren’t, but we both know the government is entitled to keep some information classified for national security purposes and that the government is not going to disclose anything that it believes will jeopardize or harm intelligence gathering. That’s a fact of life.

You have this backward: the reporting on al-Awlaki gives you some ideas of the case against him. It does not give you many details, and the government isn’t protecting the Times’ sources - the government is the likely source for most of what’s been reported.

208

It applies to US citizens who aren’t an immediate threat or involved in combat on the battlefield. Why is this so hard for you to grasp? We don’t stop the police officer from shooting in self defense, and we don’t stop the military from bombing on the combat battlefield in WWII. Yet we require that the government prove someone guilty beyond a reasonable doubt before instituting the death penalty.

I don’t think that’s true. Holder didn’t get up there and say “he was an immediate threat” or “we had a reasonable belief that he was an imminent threat to a person”, he said “he gets due process, we gave him due process, then we killed him.”

The initial decision on whether or not the person fits one of the two exceptions remains with the decision maker (President or police officer), but it should be reviewed by the judiciary beforehand, if possible, and afterward for sure. If the President orders the killing of a US citizen, he’ll have to either make sure it fits the exceptions or go get a death warrant (or whatever you want to call it). And those decisions get reviewed by the judiciary. If he’s wrong that it fits an exception, the Court makes a ruling, just like the police officer’s decision to kill in self defense gets reviewed. This really isn’t that hard.

Ideally, the President will avail himself of the Hamletprogram if he has a chance, just like he goes to the FISA court. But if he makes a determination that he doesn’t have to, he’ll go ahead and do it, but then that decision should be reviewed by the courts.

As an aside, why are we getting into this? Poking holes into a yet uncreated HamletprogramforthekillingofUScitizens doesn’t really have much to do with the killing of Al Awlaki. I’m just wondering what’s your goal here.

209

Why would he need to? The NYPD has the ability to enter his apartment and arrest him. We can’t simply call up the police department in a lawless, rebel-controlled region of Yemen and fax them a warrant, nor do we have the capacity to send an expeditionary force into the country to apprehend him. By placing himself in a region where the exercise of civil law is impossible, the only recourse he left to the US was to dispose of him militarily.

210

Sure. I think your view that the AUMF only applies outside the US is unsupported by any evidence and is mostly the result of being backed into a corner by the conclusion that your initial viewpoint that the military decisions are unreviewable by the judiciary has some clearly bad results. If I don’t have to BS anymore, I think you passed by a rational disagreement (due process applies, but he got it), and instead made a distinction between certain kinds of actions the military takes that was weak, and ended up having to reach an interpretation of the AUMF that is unsupported by evidence in order to avoid the natural conclusion of your viewpoint.

That’s why I’m pushing back on your reading of the AUMF.

211

So do you think the AUMF authorizes the President to bomb the Tampa apartment building if a foreign national is being targeted?

And I didn’t say military decisions are unreviewable – that would imply that courts have no jurisdiction over war crimes prosecutions and such. I said that courts don’t get to interject in the military planning or command.

212

He doesn’t want to risk the lives of the NYPD or the military by putting them in harms way. These terrorists are dangerous and well armed.

You misunderstand the point. I don’t have a problem with the President disposing of him militarily at all (other than the usual problem with drone strikes, but that’s a whole nother thread with a whole nother set of issues). I have a problem with him doing it without judicial oversight. I’m not advocating that Obama has to go into Yemen and drag him out, only that I be assured that he received due process before he’s taken out.

213

You have completely and utterly convinced me that you have no grasp of what I have argued at all.

No, of course he can’t (well, he CAN, it would just be unconstitutional, immoral, and bad). As I’ve explained REPEATEDLY the Constitution applies to US citizens and persons located in the US. The guy in the apartment in Tampa would be covered, and thus the President must follow the Constitution. Even IF the AUMF authorized him to take military actions in the US, the AUMF cannot overrule the Constitution. Which is kinda my point.

214

(emphasis added)

Stop assuming that I’m missing the point for a moment and consider that you might be.

Here’s the relevant posting history:

In short, your contention that there should be some judicial process to determine whether an exception applies is inconsistent with your contention that no judicial process is necessary if an exception applies. You have to pick one.

And make no mistake, the application of these concepts of the battlefield and sovereign self-defense are precisely the meat of the debate, and not some tangent over Hamletplan. Literally every public statement on the matter by Administration officials invokes either the law of armed conflict (suggesting that targets are sufficiently on a battlefield to be killed), or the law of sovereign self-defense (suggesting that the targets satisfy the requirements of imminence, proportionality, etc.), or both.

As for after-the-fact review, while you state that we apply such review to police killings, I don’t think that’s true, much less constitutionally compelled. Occasionally, if an investigation turns up evidence that a killing was unjustified, there will be some judicial action. But in the ordinary case there is only internal review (if that!).

215

You said that my conclusion that the AUMF only applies outside the US is wrong, and yet we both agree that the President can’t bomb the Tampa apartment building. I realize that you disagree with my reasoning for the conclusion, but getting worked up about a conclusion that we both agree upon is just bizarre, so I had to ask the question. If you read what I wrote:

You threw me for a loop when you wrote “I think your view that the AUMF only applies outside the US is unsupported by any evidence…” and go on to cite Hamdi and other cases, almost as if those were good court decisions.

So let’s get this straight: you and I agree that the President shouldn’t and can’t use the military within the United States to capture or kill suspected terrorists. You just have a bee in your bonnet because I come to the same conclusion by different reasoning. Correct?

216

Ah, I see your misunderstanding. When you say: “your contention that no judicial process is necessary if an exception applies”, you’re completely and utterly wrong. As in, I never said that. As in, what the fuck are you talking about.

That clears it up for me.

For you, however, I guess I’ll have to have another go at it.

The decision to kill a US citizen should be judicially reviewed. It’s the when that has you confused. If the President determines that the killing is allowed under the exceptions we talked about, he goes ahead and does it. Then, the courts review that decision.

Just like when I pointed out that’s what we do with police when they use deadly force. We don’t require the police officer to stop, go get a warrant, and then shoot the imminent threat. But after he does, those actions get reviewed.

If the President determines that the killing isn’t allowed under the exceptions, he goes to Hamletcourt and gets a death warrant, that gets judicially reviewed, and then he kills the guy. That judicial review happens BEFORE the action is taken.

Just like when police officers get a warrant, or the government kills someone under the death penalty.

Hope that clears it up for you.

All the police shootings I’ve ever seen are reviewed by the police and then the prosecutors in the area. And if there are any issues, if the dead person’s family thinks the shooting was not in self defense, then they sue. That’s judicial review. If someone believes a person was killed in self defense in violation of his Constitutional rights, that decision is reviewed by a court in a lawsuit.

That’s not what happens here. Here, the government says “Fuck you, you can’t sue because it’s a state secret, the judiciary can’t decide, and besides you don’t have standing. So there.”

I’ve got to run now so this is a bit unfinished.

217

Ok, I’m glad you now agree that due process does not compel any judicial process prior to the targeted killings if the Administration determines that the killing complies with the law of armed conflict. That’s a step in the right direction.

Now the question is whether due process compels after-the-fact review. You seem to admit that it does not, by admitting that courts are not obligated to investigate, say, police killings in the absence of a lawsuit by the victim. So I guess I’m missing your argument for why you think after-the-fact proceedings are constitutionally compelled.

218

I didn’t take step anywhere, you simply caught up. Congratulations.

Again, I don’t understand your point. Are we getting into an esoteric discussion of what due process requires when there is no one to assert it? Are we going metaphysical, like can the Constitution require a process that so due it undoes itself?

Suppose an on duty police officer shoots a homeless guy with no relatives, then creates an elaborate, but false, self defense claim. No one brings suit against him because there is no one the courts will accept as having standing. Was the due process clause violated? Sure. Will anything happen about it? No. That’s kinda where we are on Al Awlaki. He should have been given due process, they said they did, but there is no meaningful judicial review of those facts. I’m saying that’s a bad thing. I’m not sure what you’re saying.

219

I disagree with what the government is entitled to, and I disagree that it’s a fact in line with something like gravity which will do what it does regardless of our opinions. I believe the government should not be entitled to keep the process by which it determines if a citizen should be targeted for death or not a secret. In American civil society we revere the life of our citizens, even murderers, so much that the death penalty is either abolished or given so much weight that it is extremely rare(on a per-capita basis). A rapist and mass murderer may spend decades in court having the evidence weighed, the procedure which weighed the evidence checked, the checking of the procedure which weighed the evidence checked, and finally a triple check and the possibility of clemency from a governor are available. This is all on top of having the original sentence not only double checked, but checked many times(once per juror) before even being passed, and the evidence questioned by a zealous advocate for the accused.

Do you believe this is an improper process for death penalty cases in the broader American society? Is it a more lenient or onerous process than an American is due before their life is taken from them by the state?

Do you believe it proper that a decision by one small part of one branch of government, on the basis of unreleased evidence, unchallenged by an advocate of the accused, and without the advise or consent of a jury of his peers, lacking any judicial oversight, or the layers of appellate review is still the process an American is due before their life is taken from them by the state?

With all due respect, you really have no idea of what the case against him which was used behind closed doors was. You may imagine it to be a worthy and weighty discourse using accurate and impeccable sources, but it could just as easily been Eric Holder saying “I don’t like having to stumble over pronouncing his name at press conferences, kill the bastard.” The fact that they are refusing to clarify the process they used is exactly why we’re having this argument now. The very fact that, aside from faith in the individuals involved in the decision, that both our suppositions of the process used to mete out a sentence of death for two Americans are equally supported by the evidence is deeply troubling to me.

Enjoy,
Steven

220

I’m surprised by the communication difficulties here.

Your position is that the process due in targeted killing cases is that the family of victims may bring suit against the President for wrongful death? Or am I still confused about what you’re saying?

If not, explain what post hoc judicial review of a targeted killing looks like.