Yes. But one its powers is to declare war, and another is to fight war.
So I guess I have to ask again. Why do you think the right to have a search of your belongings be reasonable apply overseas, but the right not to be killed without due process not be? It seems pretty basic to me which of those rights would be more important to a person, and which would be more fundamental for constitutional analysis. The one that doesn’t result in you being dead seems a tad bit more important.
Yes. And the citizen in Quirin actually had due process. They were given notice, told the charges, had an attorney, had the right to cross examine witnesses, and were eventually convicted by a military tribunal that met the requirements of due process.
Summary execution on order of the President has none of those things. See the difference?
Great slogan. Right up there with there’s no crying in baseball. Not such a great legal analysis, though.
The whole world isn’t a battlefield. The rationale behind the taking and treatment of prisoners in the Geneva Convention was based on the idea that, while there is armed conflict going on, there is also a time and place where it is not. Soldiers, once captured, are no longer “on the battlefield”. Invalids soldier in hospitals and citizens are not “on the battlefield”. I don’t want to see the steps our country has made over the last 200 years disappear because people are too afraid to do what is right.
If you accept that the battlefield is the entirety of the world, why do you draw the line at assassinations in the US territories? Al Qaeda has been here, has killed Americans here, have lived here, and there may be some right here as we speak. Why, then, does the battlefield suddenly end at US territory for you? If there is “no due process in war”, why would there be some in the US? Convenient line to draw.
I don’t trust him and his cronies any further than I trusted the last batch. Where did the open transparency go? How about the “return to honesty”?
I’m sick and tire of this “we can do any thing we please and cover it with the state secret defense”. I’m disgusted by it.
What is intriguing about this debate is it focuses upon a nuance of the war powers of the federal government. Where congress has declared war or authorized the use of force against a nation or organization, what are the boundaries, if any, in waging this war? In waging this war, who can legitimately determine who our enemy is and therefore, subject to use of force by U.S. personnel?
I do not think the expanse of the power the president presently enjoys comes within this power. I am inclined to think, at the moment, the U.S. Constitution does not protect this power of the president.
I’m not sure my view is all that nuanced… in the spectrum of my political views, I would call this one of my more brutish and philistine.
In general, I think the boundaries of war are determined by the authorization for war and the laws of war. In terms of who gets to make the determination for how the armed forces are used within those bounds, it is perfectly clear to me that such power resides with the Commander in Chief. That questions of military strategy, including who to target, would not reside with the Commander in Chief beggars belief, in my opinion. It is so without foundation either within the Constitution or our country’s history with war that I don’t quite know what the rational basis could be to argue otherwise.
Now, if the President orders illegal things – illegal in terms of violating the authorization or the laws of war – then Congress has the remedy in being able to fire him and have a new CINC take his place. But having a judge intervene in military decisions like who is a legitimate target makes as much sense to me as having the Chief Justice of the United States signing an injunction to stop MacArthur from crossing the Yalu River.
I think the disagreement on this issue has more to do with disputes over the hypotheticals designed to test intuitions about the issue than with disagreements over the actual issue. What proposition does either side really doubt of the following?
(1) As a constitutional matter, the Air Force may not drop a bomb on a bunker in Virginia in which Bricker is believed to be hiding, because the President doesn’t like his haircut. That would be the taking of Bricker’s life without due process.
(2) As a constitutional matter, the Air Force may drop a bomb on a bunker in Pakistan which Osama Bin Laden is believed to be hiding, because he is believed to be actively engaged in planning and carrying out terrorist attacks.
(3) There is a hazy gray area surrounding both (1) and (2), and the line between them has something to do with the degree to which the killing is justified by the same things that justify wartime killing without due process: lack of sovereign control over the area, the impossibility of waging war if everyone was given due process, objective factors suggesting the person is an enemy as Congress has defined the term in a declaration of war, difficult and risk of capturing the person instead of killing him, and a recognition that sometimes national security outweighs due process.
(4) The factors in (3) are not categorical or capable of definition that applies to all circumstances. They come in degrees, and they have to be weighed against each other. In other words, the answers to middle ground cases cannot be clearly set down ahead of time.
(5) For each case, someone has to decide whether the killing is more like (1) or (2) based on a bunch of hazy factors contained in (3).
(6) Practically speaking, that someone cannot be a Court in all but the rarest of circumstances. And let’s be honest, the in absentia and secret order to kill someone by a Court isn’t a heck of a lot more due process than the decision of the Commander in Chief with the backing of Congress.
Well…If you leave everything the same but exchange “Virginia” with “Yemen,” I don’t think Bricker would agree anymore. But if we’re in this nebulous sort of “war,” where we’re not treating terrorism as a criminal matter and the entire world has the potential to be considered a battlefield, why should we treat a citizen inside America differently than a citizen outside America? Where is the limitation in the AUMF?
I understood his argument to be that territoriality was a factor, but not the dispositive one. He does not believe that there are no constitutional protections outside US borders. But I’ll let him speak for himself.
Location potentially goes to several the factors that are, at least intuitively, important: our degree of control and sovereignty over the situation, the dangerousness and difficulty of capture, and evidence that the person is an enemy.
But my point was really that so long as we agree that there is some circumstance where due process-free killing is not OK, and some circumstance when it is OK, and that the line is not obvious between the two, then it follows that the President must have the power to make some difficult decisions.
Suppose your principle is that we can only kill people on a defined battlefield. And then Congress defines the battlefield as the entire world (assuming the AUMF did not do so). What then? In your view, is there some constitutional limit on where Congress can define the battlefield to be?
At a minimum it should be where the enemy is.
But let’s assume that Congress has defined the battlefield as the entire world. Who qualifies as “the enemy?” Isn’t that status a matter of fact? Congress can broadly define the enemy, and the president has broad authority to fight them, but the people they fight still have to be the enemy as defined by Congress, and they have to be in areas Congress has declared to be part of the battlefield. Even if Congress declares the entire world to be the battlefield, that doesn’t make everyone in the world a potential target. Congress authorized the use of military force against Iraq, but nobody would claim that the authorization gives the president authority to have everyone in Iraq vaporized from the air. If we’re in that gray area that you’ve defined, who has the ultimate call to determine if an American citizen meets the definition of “enemy?”
Eastasia right now.
Ok, so you think there is no constitutional limit on what can be defined as the battleground. So we approach the next question, whether there is a constitutional limit on who can be identified as an enemy on that battlefield.
What is the alternative to the President and Congress defining who the enemy is?
I think its pretty obvious that they get to make that definition. (The only difficult question would be what to do if they disagree, but that hasn’t happened yet.) If there is a constitutional limit on that definition that is somehow implicit in due process, then it has something to do with having a connection, perhaps a substantial connection to threats to American national security.
The real question is whether and how the Courts get to review that definition in the context of a targeted killing, right? I don’t know what the precedent would require, exactly, but even if we are examining the issue anew, is it your position that the Constitution requires some kind of Secret Killings Court to pre-approve whether a target meets the definition of an enemy? How do you imagine that working, exactly? If you really believe due process applies, why is it ok for the judiciary to pre-approve a killing based on a secret hearing in which the target is not represented and the evidence reviewed is basically the administration’s say-so?
I wouldn’t mind a court reviewing the evidence that this American is the enemy in camera beforehand. I think this hearing would force the executive to make sure they actually do have valid evidence and that they have it before an American is killed. The court would not judge the merits of the Executive decision to kill, but just the authenticity/credibility of the evidence. The orders would sunset after some time period. I would also approve an exception in cases of emergencies. Also, none would be needed if you only know he’s an American after the fact.
I don’t think due process applies to Americans in a battlefield (armed conflict), but I just kind of like Americans in general. Outside a battlefield, killing must be a measure of last resort.
Petitioner in this case assumes, and I think their case hinges on, Yemen being outside the battlefield. I think it’s debatable with this particular guy and his associates.
Why argue the hypothetical? Why not just look at the actual AUMF that the president is operating under? Congress has authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…” Yes, I know, he’s been given authority to determine just who these persons are. But that’s not a blank check; some level of good faith on the part of the administration in making that determination is necessarily implied. Bush tried to claim that it gave him authority to try detainees before a military commission that didn’t comply with the UCMJ nor the Geneva Convention, and the Supreme Court rejected that claim in Hamdan, partly because Congress had not given authority to the president to set up such a commission.
So if the courts can decide whether a “military commission” is authorized by the AUMF, why can’t they decide if the assassination of a particular American citizen is violative? We’re not asking them to decide on the wisdom of such a killing, we just want them to make sure we’re killing the people Congress has authorized the president to kill (or attacking places they’ve been authorized to attack; was the bombing of Cambodia during the Vietnam War legal?). Without oversight, you’re giving the president the power to kill anyone he wants, regardless of their location and regardless of their connection to the groups and persons that attacked us or seek to attack us.
I’m not sure a secret “assassination court” would work. Put it this way: if I caught wind that the government had marked me for liquidation, I’d like some way to make them stop (or at least explain why they want me dead). Where could I go besides a court? Or is my only alternative to turn myself in and leave myself to the mercy of the government, with no notice of what I’ve done wrong, and hope they don’t decide to keep me in custody indefinitely?
I think this needs to be made clear. Hamdan, OBL’s driver, was driving around Afghanistan with 3 other AQ associates with a rocket launcher in the trunk. Do not think for one second they could not all have been shot and killed. Extremely and perfectly legal. They were enemy combatants in a warzone. No question.
But, once caught, Hamdan becomes a noncombatant and everything changes (as you correctly noted). But just because he deserves due process, trials, ect after he was caught doesn’t imply he couldn’t have been shot in the head before he was caught.
Turn yourself in. You’re an American. You’ll go straight to the federal courts and all their justice. No Gitmo, No indefinite detention (that doesn’t’ apply to Americans).
Agreed, but that has nothing to do with my point about the authority of the court to review exactly what the president is allowed to do under the AUMF.
Why should I turn myself in if I haven’t been told what I’ve done wrong? And isn’t this essentially what al-Awlaki’s dad and the ACLU are trying to do?
I guess the notion of a special review court only takes us so far. Can Bricker’s Virginia compound be bombed after a Judge reviews the affidavit of the intelligence analyst who avers that Bricker’s haircut is a complex signaling device meant to activate Al Qaeda sleeper cells? Don’t we still have to answer the a priori question of which actions are subject to normal due process, and which actions require the approval of the Secret Killing Court? Who decides that, in your view?
Additionally, I wonder whether dressing it up in the trappings of process isn’t actually a worse result overall. For example, in the state secrets context, at least now when Obama asserts the defense he takes political flack for it and therefore there is some political check on its use. If a Judge rubber-stamps the defense based on ex parte review of secret evidence, might that not serve to decrease the political consequences for using it too often, because it becomes part of the process and routine? And if so, does the benefit of such superficial due process outweigh the cost?
Well, my point was actually that the President is allowed to kill the enemy as a measure of first resort. I don’t think the court needs to weigh in on that one, but I should have made that more clear. I don’t think we (or anyone) disagree there.
Yes. They are saying this isn’t an armed conflict situation and as an American, his rights follow him. Charge him with a crime, or get lost.
So, Hamdan driving around Afghanistan with a rocket launcher is undoubtedly the enemy and can be killed without being told why. Let’s say Hamdan was American (or we could use John Walker Lindh), we don’t have to tell the enemy (American or otherwise) in that situation what they’ve done wrong before we kill them do we?
The Constitution does not apply in those classic armed conflict situations. The question is, how far can you expand that “classic” battlefield when it’s possible to operate and inflict the same death/damage outside a classic battlefield.
[Truncated the quote a bit]
It’s worth noting that not all Congressional folks have National Security Clearances that authorize them to be informed of the most sensitive data. “Sorry, pal, you ain’t on the Intelligence Committee. Go back to talking about corn subsidies.”
Well, I did not say your argument was nuanced but I digress.
I think the “boundaries of war” are determined by more than just the authorization to use military force, a declaration of war, or the laws of war. I think the U.S. Constitution determines the boundaries of war, and limits what the federal government may do during a time of war or conflict involving the use of military forces in combat. I have some very serious doubts the power allegedly exercised by the president here is permitted by the U.S. Constitution.
Art I gives Congress the power to declare war, regulate troops, define offenses against nations, and various provisions on suppressing insurrections and the like, and Art II Sec 2 says the President is Commander in Chief.
Other than the Third Amendment, I can’t find anything that specifically speaks to limitations on how Congress and the President may agree to carry out military operations. If Art I and II give the legislative and executive branches what seems like plenary power over war, with the exception of the Third Amendment, I’m not actually seeing that the Constitution limits the power of how to conduct war.
What, precisely, are you speaking of in the Constitution that limits the boundaries of war and restricts how the military may behave in combat?
So far as I can see, the Constitution lets Congress decide those matters how they wish.