Is the justification for government-sponsored murder a bunch of (legal and/or moral) bullshit?

[Hamlet]

@Ravenman

I’m quite sure my intent in that post was to have used the term “due process” in the same manner as Holder used the term “judicial process,” only I was not prescient enough to distinguish between those terms.

I had repeatedly made the distinction between the application of the due process and the ability of the judiciary to review were two separate things, which is why the issue of justiciability was a push. Sorry it didn’t sink in then.

@Ravenman

And it is abundantly clear that Holder is not using the term due process in the same way that you are using it: you have argued that an American cannot have due process unless his case is heard by a court.

As I explained repeatedly, the threshold issue was whether or not the due process clause applies to people like Al Awlaki. Then, the issue becomes what process is “due”. I also repeatedly conceded that I didn’t think a full civilian trial was necessary and that the entire panolply of constitutional protections don’t apply.

@Ravenman

Is there some daylight between what Holder and I argued? I’d say yes, that when we debated this six months ago, and also when we debated this almost a year ago, the train of argument that I used did not travel down the same tracks as Holder laid out in his speech.

Precisely. You said that the due process clause doesn’t apply, I said it did. Holder conceded it did. That was the issue.

@Ravenman

However, we both arrived at the same destination: the courts have no role in determining who may be targeted in this war.

I conceded in the very next post that it was extremely likely you were right. But, again, that wasn’t the point of our difference.

@Ravenman

hat is the opposite of what you’re saying. Sure, I will concede that one aspect of Holder’s speech seems to coincide more with your reasoning than mine, but does that mean that you now agree with Holder that due process still does not require the President to consult a court before targeting an American combatant for killing?

I answered that in my very first post in this thread, when I said: "My, again very brief, reaction is that, no, it’s not bullshit, but yes, it isn’t correct either. I was heartened to see him address many issues positively (the application of the Due Process Clause, the distinction between this and the “traditional battlefield”, and the necessity of an “imminent threat’), but the gaping hole remains his refusal to actually test his reasoning in a court of law or with legislation specific to this purpose. I find it very telling that he’s taking his case to the people rather than testing his legal reasoning in a court of law.”

@Ravenman

In any case, if you want to declare victory because Holder made a speech that says the killing of al-Awlaki is perfectly legal, I will continue to scratch my head at how you assert black to be white, up to be down, and the non-consultation with courts to be the guarantee of the Fifth Amendment. If you want, I will buy you that case of beer, and have no idea why you declared victory.

I can’t help what you do and do not understand. Holder and I disagree on the amount of process that is required to meet the requirements of “due process”. I think judicial review of executive determinations is required, he does not. But we both agree that at the very least, the due process clause applies. Which was, I thought, the very issue you and I were discussing.

As I said to you in that thread:

"It seems clear from Reid v. Covert that there are certain protections (NOTE: not the full panoply of Constitutional protections, but at least some due process), guaranteed in the Constitution that apply to citizens abroad. There is an argument to be made that Al Awlaki received enough due process (I’d bet dollars to donuts that that is the finding of the Justice Departments’ memo OK’ing the targeted killing) for his situation, but it is wrong to say that the due process clause doesn’t apply at all. "

Lo and behold, Holder comes out and says the due process clause applies but that how they handle it is all the process is due.

[Acsenray]

Perhaps the three-part test has some intellectual merit. However, unless there’s some kind of statutory or other legal basis for such a test, I don’t want the executive branch assuming that kind of authority on its own.

@Snowboarder_Bo

It’s a completely different topic, given that OBL was not a US citizen.

I don’t think citizenship should make any difference. What would we think about foreign governments justifying carrying out assassinations on our soil based on this kind of reasoning?

[Ravenman]

@Hamlet

Sorry it didn’t sink in then. . . .I can’t help what you do and do not understand.

Come on now, let’s remain civil. We’ve gone around this carousel enough that we’re familiar with where we are each coming from, and there’s no need to add in snippy comments.

As I explained repeatedly, the threshold issue was whether or not the due process clause applies to people like Al Awlaki. Then, the issue becomes what process is “due”. I also repeatedly conceded that I didn’t think a full civilian trial was necessary and that the entire panolply of constitutional protections don’t apply.

At the end of the day, my major contention is that courts have no role in determining whether the President can target a particular individual in exercise of a military operation. That’s a matter between Congress in the Executive. You have strongly objected on the basis of due process and called for judicial oversight when it comes to American citizens.

If you want me to say that the current process of having the Executive (and in a very, very minor way the Legislative) decide these matters of war to the exclusion of the Judiciary is a fully constitutional way to uphold the 5th Amendment rights of al-Awlaki and any persons similar to him, I will make that statement. I concede. Uncle. You have won.

**I state here to everyone who will listen that due process applies, so long as due process is served in a way that courts have no role whatsoever in this particular application of due process. ** This is, as I understand it, Holder’s major point, and insofar as I agree with the general outcome, I am not alarmed that he used slightly different reasoning to get there.

Now, I have no idea what the consequences are of saying that the Executive Branch, essentially without consultation with anyone, can create processes that satisfy the due process requirement of the Fifth Amendment. We may look back at this someday and be concerned that the Executive has extended its power to interpret what is due process and what is not; and perhaps it would be preferable to keep separate matters of the constitutional powers of war from the Bill of Rights. Perhaps this bridge was passed a long time ago; I simply do not know.

But, I offer to you once again: if you want a case of beer, I will buy it for you.

[Hamlet]

@Ravenman

But, I offer to you once again: if you want a case of beer, I will buy it for you.

As I said in the thread, I never expected, nor do I want now, the wager to be paid off. There was no court ruling, and we never really came to a meeting of the minds over the bet. Which was what frustrated me in those threads. I continued to explain, over and over in different ways, my position, the requirements of the Constitution, and the caselaw supporting my view, and you, apparently, never grasped it. Now, a couple years later when Holder agrees with me that the due process clause applies (although I think he remains wrong about what constitutes “due process”), you wave it away as irrelevant. Which is fine, it was just an incredible waste of my time.

[Ravenman]

@Hamlet

I continued to explain, over and over in different ways, my position, the requirements of the Constitution, and the caselaw supporting my view, and you, apparently, never grasped it.

No, I disagreed with your reading of the Constitution and the case law does not agree with your point. Understanding your position and agreeing with it are two separate issues.

Now, a couple years later when Holder agrees with me that the due process clause applies (although I think he remains wrong about what constitutes “due process”), you wave it away as irrelevant.

You’ve repeatedly said that Awlaki was killed without due process. I’ve said that what is important is the outcome, not the particular line of reasoning. Holder and I agree on the larger point, and you do not – yet simply because Holder used the term “due process” you declare victory? Would you be equally happy if Holder had said, “The President is going to issue another death warrant for an Americans overseas, which I have blessed with a magical wand which bestows due process on every such cases with merely a flick of my wrist?”

Something tells me you would not. I would view the due process magic wand as being mostly irrelevant to the whole process.

[Hamlet]

@Ravenman

No, I disagreed with your reading of the Constitution and the case law does not agree with your point. Understanding your position and agreeing with it are two separate issues.

So you understood what our wager was? Here it is again: “If the Court rules on the due process issue, and finds Al Awlaki had no due process or 4th amendment rights, you win. If they find he did have those rights, I win.” Because it seemed to me that earlier in this very thread you said that you were confused on “due process” and “judicial process”, meaning one instead of the other. Pick a lane.

@Ravenman

You’ve repeatedly said that Awlaki was killed without due process. I’ve said that what is important is the outcome, not the particular line of reasoning. Holder and I agree on the larger point, and you do not – yet simply because Holder used the term “due process” you declare victory?

Yes, I declare victory because that was the bet. Whether or not Al Awlaki was entitled to due process.

For the third time: "It seems clear from Reid v. Covert that there are certain protections (NOTE: not the full panoply of Constitutional protections, but at least some due process), guaranteed in the Constitution that apply to citizens abroad. There is an argument to be made that Al Awlaki received enough due process (I’d bet dollars to donuts that that is the finding of the Justice Departments’ memo OK’ing the targeted killing) for his situation, but it is wrong to say that the due process clause doesn’t apply at all.".

I know I’m simply repeating myself, but I am confounded by how you can assert two mutually exclusive things, that you didn’t know the difference between due process and judicial process and that you understood my point and the wager.

Al Awlaki was entitled to “Due Process” under the US Constitution. What, exactly, amounts to “due process” is up for debate (Holder and I disagree), not whether or not he should have had them.

[Giles]

@Eric Holder

Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.

I think Mr Holder should go back and read the Fifth Amendment again. (I assume he did read it at some time in the past, but has forgotten the exact text.) The Fifth Amendment does not mention citizens at all – It says “No person … ; nor shall any person …”. All of the amendment applies to citizens and non-citizens equally.

@Acsenray

I don’t think citizenship should make any difference. What would we think about foreign governments justifying carrying out assassinations on our soil based on this kind of reasoning?

I agree.

[Ravenman]

@Hamlet

So you understood what our wager was? Here it is again: “If the Court rules on the due process issue, and finds Al Awlaki had no due process or 4th amendment rights, you win. If they find he did have those rights, I win.” Because it seemed to me that earlier in this very thread you said that you were confused on “due process” and “judicial process”, meaning one instead of the other. Pick a lane.

Yes, I declare victory because that was the bet. Whether or not Al Awlaki was entitled to due process.

The terms “Eric Holder” and “a court” are not interchangeable. I beseech others to jump in with their interpretations of whether your victory is well-earned or not, but in the meantime…

I know I’m simply repeating myself, but I am confounded by how you can assert two mutually exclusive things, that you didn’t know the difference between due process and judicial process and that you understood my point and the wager.

I understood the wager and that no court has ruled on the matter, but that you are declaring victory. I’ve offered to pay up. If you’ve won, I will pay; but your repeated declarations of victory seem to be motivated more by rubbing a technicality in my face rather than allowing me to follow through on the spirit of the bet. If you did not agree to the bet in good faith, and you do not want me to pay it off, then why do you keep bringing it up?

[Saint_Cad]

@Hamlet

Had Holder (and by extension Obama) believed his legal opinion could stand up to legal scrutiny in court, he simply could have allowed the court in the Al Awlaki case to reach the merits of the case rather than relying on the standing or justiciability issues that it did. He could also stop hiding behind state secrets doctrine in the FOIA cases pending about the same issues.

Have you ever been in court? You never trust a judge to rule on the merits of a case if it can be ruled in your favor on a technicality.

Here’s an example. A woman is being tried on contempt for violating a court order. The time in jail would be just under 6 months so no jury. Her attorney was from LA and his was local. The woman proved:

1. Her signature on the order was forged
2. She was out of the country the day the ex claimed they both went to the courthouse to submit the order
   3a) The “judge” that signed to order was a friend of the ex
   3b) And was not only was the “judge” not in a courtroom that day, he was not even a judge, justice or commissioner in the county or state.

So she proved that the order was faked and the ex was caught in serious perjury. Do you know what the results of the merits of the case were? The judge was ready to declare her guilty and have led out in handcuff (apparently her attorney used up his one freebie appeal which was denied. Bearflag could explain better how that works). She dropped her lawyer after he came thisclose to being jailed over the weekend for questioning why the trial was still proceeding after these facts came out. She goes and lets a local lawyer.

The next hearing, she is grudgingly acquitted on the techicality that in California, a court order myst be signed by a judge or commissioner. Since this one wasn’t she technically did not have to follow it.

I’m sure all of the trial lawyers on this board will say do what it takes to when whether on procedure, technicalities or mert.

[MOIDALIZE]

@Hamlet

My, again very brief, reaction is that, no, it’s not bullshit, but yes, it isn’t correct either. I was heartened to see him address many issues positively (the application of the Due Process Clause, the distinction between this and the “traditional battlefield”, and the necessity of an "imminent threat’), but the gaping hole remains his refusal to actually test his reasoning in a court of law or with legislation specific to this purpose. I find it very telling that he’s taking his case to the people rather than testing his legal reasoning in a court of law.

Exactly. Until they’re willing to put their policy to the test in a federal court, I’m going to view it as an ex post facto justification for what they’ve already done to try and get the critics off their backs. And for those of you who don’t think the courts have any place in individual “terrorist” cases, surely you’d have no problem with the courts determining whether or not the administration’s policy constitutes due process, would you?

[Ravenman]

@MOIDALIZE

And for those of you who don’t think the courts have any place in individual “terrorist” cases, surely you’d have no problem with the courts determining whether or not the administration’s policy constitutes due process, would you?

To be clear, I think courts have ample jurisdiction on “terrorist cases” like matters of detention, plus I think that there should be criminal trials for terrorists. I don’t believe that courts have any role in pre-approving military missions to insure compliance with laws, regulations, the Bill of Rights, treaties, Biblical principles, or anything else.

But to answer your question, since I don’t think the courts have any role in these kinds of operations, I don’t think the courts have any role in evaluating the degree to which they agree or disagree with certain parts of Holder’s speech. To the extent that there are concerns about targeting American members of Al Qaeda, those questions should be resolved by the Legislative and Executive Branches.

[MOIDALIZE]

@Ravenman

I understood the wager and that no court has ruled on the matter, but that you are declaring victory. I’ve offered to pay up. If you’ve won, I will pay; but your repeated declarations of victory seem to be motivated more by rubbing a technicality in my face rather than allowing me to follow through on the spirit of the bet. If you did not agree to the bet in good faith, and you do not want me to pay it off, then why do you keep bringing it up?

There’s no technicality. Hamlet bet that if it went to court and the court ruled on the merits, that it would find that Awlaki was entitled to due process. Holder has reaffirmed that “The Constitution’s guarantee of due process is ironclad, and it is essential”, so it stands to reason that if he were arguing this case before a court, Holder would not dispute whether Awlaki was entitled to due process. Folks in the other thread were saying “No, no, no, he was on a battlefield and the AUMF gives the president authority to kill him without oversight.” Holder is trying to say that the administration has developed its own three part test that would constitute due process under A5. They’re just not willing to tell anyone how that test was applied to Awlaki and what the evidence was.

[Hamlet]

@Ravenman

I understood the wager and that no court has ruled on the matter, but that you are declaring victory. I’ve offered to pay up. If you’ve won, I will pay; but your repeated declarations of victory seem to be motivated more by rubbing a technicality in my face rather than allowing me to follow through on the spirit of the bet. If you did not agree to the bet in good faith, and you do not want me to pay it off, then why do you keep bringing it up?

The “spirit of the bet”? Is that kinda like “the bet I wished I made?” I repeated myself in that thread, and this one, about what the issue between us was (for the 18th time, whether or not the Due Process clause applied to Al Awlaki). Holder apparently has agreed with me on that issue. I’m sure you now meant something completely different from “Al Awlaki had no due process or 4th amendment rights, you win”, which is fine. But at the very least don’t try and pretend you knew what the bet was all along when it’s clear you meant something different.

I’ve wasted enough time on this issue with you. I’m done.

[Hamlet]

@Saint_Cad

Have you ever been in court? You never trust a judge to rule on the merits of a case if it can be ruled in your favor on a technicality.

Of course. But don’t try to pretend it doesn’t mean anything that Holder wasn’t willing to have his legal theory tested in court.

[Ravenman]

@Hamlet

The “spirit of the bet”? Is that kinda like “the bet I wished I made?” I repeated myself in that thread, and this one, about what the issue between us was (for the 18th time, whether or not the Due Process clause applied to Al Awlaki).

No, the bet I actually made, in which we agreed in an aside that a court will most likely never hear the merits of the case. You said this yourself. Now, no court has heard the case, but you declare victory anyway. Talk about moving the goalposts.

[Hamlet]

@Ravenman

No, the bet I actually made, in which we agreed in an aside that a court will most likely never hear the merits of the case. You said this yourself. Now, no court has heard the case, but you declare victory anyway. Talk about moving the goalposts.

So, to your mind, I bet that a court would hear the merits, despite saying repeatedly that the chance of that was “next to nil” and, in the very wording of the bet saying if the court ruled it non-justiciable, it’s a push. So, again to your mind, I bet something that I thought had a next to nil chance and that, if I lost, it would be a push rather than a loss. Wow, that is … something.

I completely agree that no court has ruled on the merits. But again, that wasn’t the main bet (we both agreed with it). And, again, I don’t expect you to pay on the bet because a court never ruled on it. But, and I said this repeatedly already, Holder agreed with me and not with you, that the due process clause does apply to US citizens abroad like Al Awlaki.

[WillFarnaby]

I would like to know how imminent the threat must be before Mr. Holder deems it satisfactory to assassinate. Sadly, no evidence has been offered so Mr. Holder’s threshold of imminence will remain unknown.

[Ravenman]

@Hamlet

But, and I said this repeatedly already, Holder agreed with me and not with you, that the due process clause does apply to US citizens abroad like Al Awlaki.

Then we can all agree that Holder is a legal genius that can bring violently disagreeing folks like you and I together, in that we both think Holder agrees with ourselves and not the other.

Wonderful. I always like concluding debates on high notes and common ground.

[Hamlet]

@Ravenman

Then we can all agree that Holder is a legal genius that can bring violently disagreeing folks like you and I together, in that we both think Holder agrees with ourselves and not the other.

Wonderful. I always like concluding debates on high notes and common ground.

Fantastic! You and I can now agree that the due process clause of the Constitution applies to US citizens abroad, even if they’ve been declared unlawful combatants. Had we been able to reach this agreement all those months ago, we wouldn’t have had to make that bet and I would’ve had those hours back that I wasted explaining it to you.

[Ravenman]

@Hamlet

Fantastic! You and I can now agree that the due process clause of the Constitution applies to US citizens abroad, even if they’ve been declared unlawful combatants. Had we been able to reach this agreement all those months ago, we wouldn’t have had to make that bet and I would’ve had those hours back that I wasted explaining it to you.

And you can agree with me that courts have no constitutional role in determining or limiting how the President carries out the congressional mandate to attack enemies with military force!

Tomato! Tomato! Let’s call the whole thing off!