I think it is fairly clear that neither the Constitution nor the authorization for the use of force contemplated conducting war within the United States itself.
Perhaps I spoke imprecisely. By war power, I mean the literal use of application of military force, not the treatment of detainees. Although they are linked, I view the actual application of deadly force in the military context as something that the courts have not ever involved themselves in. Please correct me if I’m wrong.
I’d say you’re both right. You’re an American outside the borders, then you don’t get every constitutional right. But you at least get all the fundamental rights. At least. And the cases you both cited seem to suggest this as well. Sometimes the Constitution did go abroad, sometimes it did not. It’s a case by case, right by right type deal.
In the case Bricker cited earlier, US v. Bin Laden, the 4th Amendment did apply to that US citizen in Kenya, and the search must be reasonable (which is a little different than applied internally, but reasonable is at the heart of the 4th). However, a foreign intelligence exception applied because the primary purpose of the search was to collect foreign intel, not to collect “evidence” for a trial. Had they conducted the search unreasonably, it would have violated his 4th Amendment right.
On a somewhat related note, while this case is probably still good law, I would add that laws regarding intelligence/evidence collecting changed substantially after 2001.
Yes. In a war, enemy combatants can be killed regardless of citizenry. Or rather, in a war, you can kill as a measure of first resort. In peace, you kill as a measure of last resort (ie, try and detain first). That’s the big difference, that’s why this is a war against al qaeda. Obviously you do not have to agree because it’s rather unique.
Ex. John Walker Lind, an American, was fighting against the US Military. Had he chosen not to surrender, he could have legally been killed. They did not have to try and arrest him. That would have been rather weird anyways since he was fighting amongst non-Americans.
Also, you rarely know the person you’re fighting/spying on is an American citizen. You don’t know that Yaser Esam Hamdi who has been living in Saudi Arabia/Pakistan/Yemen/ect. was actually born in Louisiana until after he’s caught/killed.
You need a trial before you decide someone earns the death penalty. It is never as clear as people want to believe.
The prez does not have the ability to determine guilt. he has to rely on opinions and evidence gathered by someone else. The country is better served by trials .
Maybe you could point out where in the AUMF it was limited to anywhere in the world, except the US. And, even then, you still have the problem of a simple Act of Congress (declaration of war), overriding the Constitution (due process, etc.), which is a clear violation of the Supremacy clause. The Constitution doesn’t simply stop applying when we are at war.
Well, prior to this, I’m unsure of any president ordering the murder of a US citizen, so we’re kinda groping in the dark. What we do know is that the Courts have exercised jurisdiction when the President has detained US citizens (Hamdi), when the President has ordered military tribunals and then killed US citizens (Quirin). From those, I think it’s pretty clear that the actual assassination of a US citizen without due process would be reviewable.
How exactly do you know the subject is an “enemy” at all? The reply may be because President Obama has designated the subject as the enemy, and this is the problem. The issue being discussed is whether the president has this power at all, or should have it, under these facts.
Uh, supremacy clause? What about Art I, Sec 8 investing Congress with the power to declare war, and Art II, Sec 2 investing the President with the power to command the armies? We’re not accusing American terrorists with crimes, we’re saying they are enemies that are legitimate targets because they are trying to do the nation harm. Those activities are about as fully within the war power as is possible to be.
In any case, when I said that the AUMF seemed to be intended to apply to armed conflict outside the United States, I was thinking of this: "Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States… " As opposed to acts of terrorism originating inside the United States.
Did Lincoln “order the murder of US citizens” by carrying out a war against the Confederacy? Perhaps that was that not war, in your view?
Because the Congress invested the President with the power to make war on our Al Qaeda-related enemies, the starting point is that the constitutional process of making war allows the Executive Branch the common-sense power to determine who is an enemy and who is not, within the bounds of the authorization. If Congress did not want the President to be able to make determinations on who is an enemy and who is not, then they shouldn’t have passed a resolution that specifically and clearly allows him to do so; or at least they should try to amend it. However, there seems to be no controversy in Congress about this issue at all, so one might conclude that the Legislative Branch is relatively happy with the AUMF is being interpreted.
Furthermore, as I have stated several times, it seems apparent that Congress has been afforded access to the classified information by which the Executive Branch makes decisions on particular cases. I do not know this for a fact, but it is a reasonable deduction because the law requires the President to keep Congress apprised of intelligence operations, which would include CIA drone attacks, and nobody in Congress seems to be complaining that the White House isn’t providing the information.
Wow, Bricker, a single district court case. How convincing. Let me go clean the egg off my face.
Actually, Glenn Greenwald isn’t disputing that at all.
WRT the last sentence in the quote, let’s be clear: the President isn’t claiming any power for himself. It’s the power that Congress gave him.
Congress authorized “all necessary and appropriate force” against those who planned and executed 9/11. From that, Obama is claiming the authority to order the assassination of anyone in the world he designates a member of al-Qaeda, without judicial oversight, even if said person is an American citizen. So yes, he is claiming power for himself.
Affirmed by the Second Circuit. In Re Terrorist Bombings of US Embassies in East Africa, 549 F. 3d 146 (2nd Cir 2008).
But maybe the Supreme Court overruled them? They asked them to, sure enough, but…
Nope. Cert denied, 130 S.Ct. 1050 (2010).
Maybe some lox to go with your egg?
(bolding mine)
It would have been perfectly legal for the Republican Guard to kill a marine sleeping in his bunk in Ft. Hood. It’s Status-based targeting (not conduct based). The fact that he is a marine, and only the fact that he is a marine, enables him to be a valid military target. Conversely, the fact that someone is a member of al qaeda/Republican Guard, allows them to be killed, solely because they are a member. Even if they’re at home reading the newspaper.
I would disagree, but I see your point. Congress is allowing the President to designate anyone he wants to be a member of al qaeda (as CnC). If Congress had limited the AUMF to aliens, the President, by law, could not make an American al qaeda member an enemy combatant. He would not be authorized to kill them unprovoked.
Congress said there is a war against Al Qaeda. The military (CnC) decides specifically who is the enemy under Congress’s broad defintion (al qaeda and cohorts). I see perfectly the problem in actually executing that type of “war,” I don’t see a problem that the President is somehow claiming this power for himself. Clearly, he’s not.
Obama has said he is acting under the AUMF and his power comes from Congress. Bush did the same, except Bush also argued his power could come from himself (inherent constitutional Presidential powers) if Congress were ever to revoke the AUMF.
How about you not selectively quote the law?
Congress told him he has the discretion. There is no “claiming the power for himself,” it was thrust upon him by the legislative branch.
No, the Supreme Court has not decided this particular issue, and they decided not to here. Obviously this means they agree completely with the lower court, because we all know they would never miss a chance to weigh in on an important issue.
I’ll note that the district court found that the main purpose of the surveillance was to gather foreign intelligence, not for conducting a criminal investigation of el-Hage, which would militate against requiring a warrant. The reasonableness requirement still applied.
That. Authorization. Cannot. Override. The. Constitution.
True enough. But the Second Circuit did, and that is binding precedent, which is enough to refute your “Wow, Bricker, a single district court case. How convincing,” claim.
Isn’t it?
What you said couldn’t be done (use warrantless wiretap evidence obtained overseas to get a criminal conviction) in fact has been been done, and the fact that it can be done is the law of the Second Circuit.
Right?
Yes, it did, and it was reasonable.
So were you tight, or wrong, in this exchange:
And it doesn’t.
I see we’re now at the point of repeating the points we’ve already made and disagreed with, so rather than rehashing what has already been said, do you believe any other authorizations for the use of military force, or declarations of war, have been unconstitutional?
Maybe you misunderstand how the Constitution works, but Congress and the President aren’t allowed to violate one part of the Constitution just because they have a grant of power in another. Giving Congress the power to make laws, or the President the power to surveille people, doesn’t allow them to violate the Bill of Rights. Congress can’t, using it’s commerce clause, or general welfare, powers to make it illegal to print a newspaper. The President can’t use his executive powers to search whomever and whereever he likes. Those grants of powers are limited by the … well limits put on them by the Constitution.
To your mind, is there any limit to the “war power”? Seizing Steel Mills, internment camps for all Muslims, detaining or murdering US citizens living in the US without trials, shooting all German/Americans on sight in 1943, are all constitutional in your mind?
You don’t see a problem with that argument?
And again, you are confusing the difference between a battlefield and … well not a battlefield. Surely you’re not saying that Lincoln could have ordered the murder of everyone in the Confederate States are you? Soldier’s wives, children, slaves, everyone could have been slaughtered, without trial, without due process, without anything, simply because they were in a “enemy” state.
Your position scares the shit out of me.
No, it doesn’t. But Obama’s interpretation of his authority under it does.
Not everything that’s wrong is unconstitutional.
Truman could have wiped out the Japanese islands if he had more atomic bombs on hand without violating the Constitution. And Lincoln could have wiped out everyone in the Confederacy without violating the Constitution.
The Constitution is not Holy Writ, that forbids every Bad Thing and permits every Good Thing.