So now we're assassinating our own citizens?

[Hamlet]

@FinnAgain

I notice you totally dodged all my questions about your ‘battlefield’ metric. Guess it really was only vacuous snark.

Nope, I just thought a dissertation on “what is a battlefield” complete with references to the sources of international and and national law wasn’t worth my time. By all means, if you want to get into the specifics of what a battlefield is, where it’s limits are drawn, and do research into the issue using the multitude of sources, have at it. I was only using it as a generality, but if you wish to delve into the specific research, don’t let me stop you. Just don’t expect me to do it for you.

@FinnAgain

Again, spend less time in vacuous snark and more in trying to come up with a cogent argument. Can you ‘stay with me’ on this? We don’t enjoy eztraterritoriality, our FBI agents aren’t always equipped to storm Al Quaeda strongholds, nations in which AQ members are resident do not always allow/cooperate with American arrest requests, etc, etc, etc.

So there is not an automatic requirement to arrest even any given American who’s commutes treason and/or taken up arms against us.

To answer your question Finn, no, I couldn’t “stay with you”. Personally, I think it’s because you didn’t express yourself very well, or didn’t grasp what I was saying, but to each their own.

Yes, there is no requirement to arrest every American who takes up arms against us. Great point. Sure I knew that already, and didn’t advance that as a position of mine, but thanks nonetheless.

[Hamlet]

@Captain_Amazing

Why wouldn’t the full protections of the Constitution apply in Al Awlaki’s case?

Because they don’t. The threads I linked to earlier had some of the discussion of the extraterritoriality application of the Constitution to US citizens, and the deference to the other branches in issues of national security. For example, the warrant requirement of the 4th Amendment doesn’t apply extraterritorially (generally speaking of course), but the reasonableness of a search does. I don’t think the entire panoply of Constitutional protections apply extraterritorially, and with Congressional approval and judicial deference in matters of war, not all requirements of due process. I fully accept that I could be wrong and that the due process clause requires more than what I am asserting, but if anything I’m errring on the side of too little protection.

@Captain Amazing

If he’s not there to confront his accusers and plan his defense, it seems like what you’re suggesting is a show trial, and I don’t see how that’s any more respectful of his rights than just killing him without trial.

There will always be accusations of a show trial no matter what happens. And a good part of my position relies on faith in the military tribunal system, the court appointed attorneys, and judicial review, that they will do their jobs and do what is right. I don’t see how that is avoidable, and it is a hundred times more preferable to outright extrajudicial killing.

[Hamlet]

@John_Mace

OK, but that doesn’t really answer the question. Can we bomb the “terrorist hideout” if our intel says there is a US citizen in there?

Wow, that is some good intel. I would say that yes, it would be unconstitutional to order a strike that you know will kill a US citizen without due process. The bombing would violate that citizen’s rights under the constitution.

[FinnAgain]

@Hamlet

Nope, I just thought a dissertation on “what is a battlefield” complete with references to the sources of international and and national law wasn’t worth my time.

So you pretty much made it up, your post is your cite, and despite not having any basis in international law or American law, you’ll rely on it as a claim. So noted.

@Hamlet

Yes, there is no requirement to arrest every American who takes up arms against us. Great point. Sure I knew that already, and didn’t advance that as a position of mine, but thanks nonetheless.

Again, if you spent less time on vacuous snark and claiming that your posts are your cites, and more time on trying to advance cogent arguments, it might help. Your claim was exactly that there is a requirement to arrest Americans who take up arms against us rather than us employing military force against them. You just claimed that we couldn’t use military force against them, and instead had to take them into custody at which point you could pick and choose which bits of constitutional protections apply. You still haven’t offered a cogent metric on that point, either.

[John_Mace]

@Hamlet

Wow, that is some good intel. I would say that yes, it would be unconstitutional to order a strike that you know will kill a US citizen without due process. The bombing would violate that citizen’s rights under the constitution.

Thanks.

BTW, folks, here’s this exact same thread from last November. Basically, we’re all just have the exact same argument again.

The key, as I think we concluded in that last thread, is to have some clear process to define what constitutes “the battlefield”. I just can’t see that we can declare the entire world to be “the battlefield”. Yemen kinda falls into an odd category, because it’s not a country under full control by it’s central government.

We wouldn’t do this* in Germany, but we would in Afghanistan. We haven’t declared war on Yemen, but we have established it as a place that we send drones in to kill suspected terrorists. And we do that because we can’t operate freely there, and we can’t expect the central government to have the capability of capturing terrorists on its own soil.

From my perspective, I don’t have a lot of problems with doing this in Yemen, but I would like to see some formal statement from Congress of which countries constitute “the battleground”.

*Kill someone using a predator drone

[Captain_Amazing]

@Hamlet

Because they don’t. The threads I linked to earlier had some of the discussion of the extraterritoriality application of the Constitution to US citizens, and the deference to the other branches in issues of national security. For example, the warrant requirement of the 4th Amendment doesn’t apply extraterritorially (generally speaking of course), but the reasonableness of a search does. I don’t think the entire panoply of Constitutional protections apply extraterritorially, and with Congressional approval and judicial deference in matters of war, not all requirements of due process. I fully accept that I could be wrong and that the due process clause requires more than what I am asserting, but if anything I’m errring on the side of too little protection.

You are. Extraterritoriality doesn’t allow trials in absentia. If you’re going to violate the guy’s civil rights, let’s just kill him outright. Don’t corrupt the judicial system to do it, because, frankly, what you’re suggesting is worse and does more violence to the Constitution than just bombing the guy.

[Farmer_Jane]

@Really_Not_All_That_Bright

Citation needed.

Which part?

AQ is an enemy army. It is a stateless terrorist organization (notice how we have words like “guerrilla warfare”, “ragtag army”, “militia”, etc. in our lexicon; an army does not need a sovereign nation to be an army).

It has been designated as a foreign terrorist organization,
and enemy in the War on Terror (and perpetrators of 9/11). Granted, WoT is a Bush-era term, but it’s kind of the catch-all to mean those responsible for 9/11 and those who seek to do further harm via terrorist organizations. Specifically, alQueda.

He is the definition of terrorist as outlined in the U.S. Patriot Act.

He’s been wanted for years. He not only refused to surrender, but he’s actively planning to harm the United States and has been engaging in such activities. It’s not like he’s some white collar criminal jerkoff hanging out in Argentina.

Since the United States cannot reasonably arrest him without significant harm done to American soldiers as the man could have a bomb strapped to himself, it’s pretty logical to strike before struck. He’s become a military target. Again, the President is under advice from intelligence, legal counsel, the NSC and the DoD. And again, the President is also Commander-in-Chief.

This was not a step taken lightly. It’s not some kid in a sleeper cell outside of Chicago. This is a man engaged terrorist operations. Kind of beyond the indictment phase - more the like the, “Oh shit, son!” phase.

[Farmer_Jane]

It was me who said we didn’t try criminals in abstentia. Sorry. I kind of thought it was obvious. You know? Trial without someone there?

If he refuses to face the court, then it’s impossible for us to try him unless we capture and detain him. Again…if that’s not physically possible and he’s a threat to U.S. security, I don’t see how his fourth, fifth, and sixteenth amendment protections enable his life to be lifted higher than the safety of the United States military branches and citizens.

[Hamlet]

@FinnAgain

So you pretty much made it up, your post is your cite, and despite not having any basis in international law or American law, you’ll rely on it as a claim. So noted.

You don’t believe that the concept of a “battlefield” has a basis in international or American law? I honestly didn’t think the concept was that foreign, that soldiers can be killed on the battlefield, that you can detain soldiers from returning to the battlefield, and that you shouldn’t kill soldiers once they are unarmed off the battlefield. If you insist, I suppose I could get you some introductory information, but I have dinner right now, and will be travelling later, so it may have to wait a bit.

@FinnAgain

Again, if you spent less time on vacuous snark and claiming that your posts are your cites, and more time on trying to advance cogent arguments, it might help. Your claim was exactly that there is a requirement to arrest Americans who take up arms against us rather than us employing military force against them.

That was not my claim. I suggest you reread my posts, especially where I point out that I don’t have a problem with military action to kill a US citizen, if they were on the immediate battlefield, if they were a substantial and imminent threat, or if there was due process and a trial and death sentence. It might help you understand the difference between what I actually claim, and what you pretend I claim.

[Hamlet]

@Captain_Amazing

If you’re going to violate the guy’s civil rights, let’s just kill him outright.

I think we can agree to disagree then. I, for one, think it is possible to attain due process without having the entire US Constitution apply. So does a majority of other countries in the world that aren’t bound by the US Constitution. I also think it is better to conduct military trials with detainees in Guantanamo than it is to take them out back and just shoot in the head. To each their own, I guess.

[FinnAgain]

@John_Mace

The key, as I think we concluded in that last thread, is to have some clear process to define what constitutes “the battlefield”.

Based on what, exactly? The concept of “the battlefield” seems to be a matter of selective relevance today. In international law, it was simply a place where combat had taken place. It wasn’t like there were treaties about the Amelioration of the Condition of the Wounded on the [Duly Authorized, Olympic Standard] Field of Battle. If battle took place on the empty windswept steppes of Russia it was just as much a battle as if it took place in gritty house to house fighting.

Hamlet seems totally unable to actually cite anything other than his own posts as to where the relevance of his concept of “the battlefield” comes from, and how it should be defined. I take it that you’ve got something concrete, though. Can you provide it?

@Hamlet

That was not my claim. I suggest you reread my posts, especially where I point out that I don’t have a problem with military action to kill a US citizen, if they were on the immediate battlefield

You mean the thing that you refused to define and still refuse to define or cite? Yeah.
My statements about your claims are accurate, despite your ‘my post is my cite’ defense or your tactic of deliberately leaving terms undefined so that they can mean whatever you want them to mean when you’re caught in contradictions.

[Captain_Amazing]

@Hamlet

I also think it is better to conduct military trials with detainees in Guantanamo than it is to take them out back and just shoot in the head. To each their own, I guess.

I agree with that. And if it were him in Guantanamo having a military trial, I might be ok with that (even though I don’t really like the military tribunal concept in general). But that’s not what you’re suggesting. You’re suggesting the government pick a lawyer for him who’s never met the guy, doesn’t know what the guy’s defense is, and may not even have the guy’s best interests in heart, and then try him, even though he’s not even there to dispute the charges.

[Hamlet]

@FinnAgain

You mean the thing that you refused to define and still refuse to define or cite?

No, I meant the part where you misrepresented what I claimed. I thought that was pretty clear from what I wrote, but if you want to hide behind “You won’t define “battlefield” so you lose” argument, have at it. Luckily, I can read and understand what I’ve typed, and it wasn’t “Your claim was exactly that there is a requirement to arrest Americans who take up arms against us rather than us employing military force against them.” That’s your fevered imagination.

[Hamlet]

@Captain_Amazing

I agree with that.

Why? I thought outright assassination was better than attempting due process with military tribunals before assassinating people.

@Captain Amazing

And if it were him in Guantanamo having a military trial, I might be ok with that (even though I don’t really like the military tribunal concept in general). But that’s not what you’re suggesting. You’re suggesting the government pick a lawyer for him who’s never met the guy, doesn’t know what the guy’s defense is, and may not even have the guy’s best interests in heart, and then try him, even though he’s not even there to dispute the charges.

As I said before, I have faith in our military, in the tribunal system, in the lawyers appointed, and in the judiciary reviewing the trials to assume they will do what their duty is. I find it amazing that you seem to trust the military to assassinate someone based solelyl on a determination by the President, but you don’t trust them actually try someone BEFORE they assassinate them.

[Ravenman]

When the courts rejected al-Alakwi’s father’s lawsuit to obtain an injunction against the targeted killing, the court had this to say (among many other things):

Here, plaintiff asks this Court to do exactly what the D.C. Circuit forbid in El-Shifa – assess the merits of the President’s (alleged) decision to launch an attack on a foreign target. Although the “foreign target” happens to be a U.S. citizen, the same reasons that counseled against judicial resolution of the plaintiffs’ claims in El-Shifa apply with equal force here. Just as in El-Shifa, any judicial determination as to the propriety of a military attack on Anwar Al-Aulaqi would “‘require this court to elucidate the . . . standards that are to guide a President when he evaluates the veracity of military intelligence.’” . . . . But there are no judicially manageable standards by which courts can endeavor to assess the President’s interpretation of military intelligence and his resulting decision – based on that intelligence – whether to use military force against a terrorist target overseas. . . . Given that courts may not undertake to assess whether a particular organization’s alleged terrorist activities threaten national security, it would seem axiomatic that courts must also decline to assess whether a particular individual’s alleged terrorist activities threaten national security. But absent such a judicial determination as to the nature and extent of the alleged national security threat that Anwar Al-Aulaqi poses to the United States, this Court cannot possibly determine whether the government’s alleged use of lethal force against Anwar Al-Aulaqi would be “justified or well-founded.”

The type of relief that plaintiff seeks only underscores the impropriety of judicial review here. Plaintiff requests both a declaration setting forth the standard under which the United States can select individuals for targeted killing as well as an injunction prohibiting defendants from intentionally killing Anwar Al-Aulaqi unless he meets that standard – i.e., unless he “presents a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.” . . .

But as the D.C. Circuit has explained, “*t is not the role of judges to second-guess, with the benefit of hindsight, another branch’s determination that the interests of the United States call for military action.” Such military determinations are textually committed to the political branches.

So, the court says that even in the case of the US Government targeting a US citizen overseas, there is no means by which the courts can second-guess or establish the degree to which a person is a direct threat against the United States.

Absent the courts’ ability to do so, there is no way that they can intervene to stop an order by the executive as being deficient in some manner, whether it has to do with constitutional rights, the facts of someone being a terrorist or not, to the degree to which they are an immediate threat to the US. It is up to the Congress and the President to determine such matters.

It would seem that the courts have spoken (for now) on the issue of 4th Amendment protections for an American hostile combatant overseas: the courts will not protect you.

[FinnAgain]

@Hamlet

No, I meant the part where you misrepresented what I claimed.

It’s interesting that your argument is evidently built on one level of weaseling on top of another.

First you claim that even Americans who are fighting against us in enemy military forces are required to be treated according to the Constitution. You specifically claim that they’re entitled to due process. This means arrest and trial. Then you decided that we can hold a trial and selectively (again with no cite or cogent argument) deny certain legal protections to someone, like a protection against being tried in absentia, because you feel like it. That means that, all of a sudden they’re not actually entitled to due process so much as they’re entitled to ‘some process or another’.

So the Constitution totally has to be respected, except for where you don’t want it to be. And due process, meaning arrest and trial, must be respected, except when you use due process to mean a trial in absentia which isn’t actually allowed, anyways. And of course once that (selectively-legal) trial is concluded, then we can conduct military action. Unless of course someone is on “the battlefield”, a concept which you steadfastly refuse to actually define or cite, despite posting again and again and again and again, and a concept which means whatever you want it to mean depends on what level of the weasel-pie we’re down at.

I guess that’s just your fevered weaseling.
Speaking of which, found your cite yet for your “the battlefield” concept, or have you got a whole lot more posts to make while you’re just still too busy making dinner and about to be traveling, and the sun was in your eyes and…

[Hamlet]

@FinnAgain

First you claim that even Americans who are fighting against us in enemy military forces are required to be treated according to the Constitution.

Again, you have a distinct problem telling the difference between what I actually said, and what you [want/misunderstood/deliberately misrepresent] I said. Perhaps if, instead of making stuff up, you directly quote me, then maybe, just maybe, we could debate this like adults.

@FinnAgain

You specifically claim that they’re entitled to due process.

Some, yes. As I’ve said repeatedly, those on a traditional battlefield and those who are a substantial and imminent threat to life or serious harm aren’t.

@FinnAgain

This means arrest and trial.

No, it doesn’t have to. I’ve explained over and over that I’m not convinced that due process requires an arrest of Al Awlaki, nor that it requires a civil trial with all the protections of the Constitution.

@FinnAgain

Then you decided that we can hold a trial and selectively (again with no cite or cogent argument) deny certain legal protections to someone, like a protection against being tried in absentia, because you feel like it. That means that, all of a sudden they’re not actually entitled to due process so much as they’re entitled to ‘some process or another’.

Yes, I actually have an opinion on what due process should be in these kinds of cases. Gasp. And I have the audicity to suggest that “due process” is not absolutely synonymous with every protection required by the Constitution. And I’ve provided caselaw in this thread (In Re Quirin), as well as in the previously linked threads.

You however, have offered nothing of substance other than “Nuh Uh”.

@FinnAgain

So the Constitution totally has to be respected, except for where you don’t want it to be. And due process, meaning arrest and trial, must be respected, except when you use due process to mean a trial in absentia which isn’t actually allowed, anyways.

Aaaaaand we’re back to you making stuff up. We’re coming full circle here.

[FinnAgain]

Funny, still no cite on your"the battlefield" concept, which you totally don’t have time to post, although you seem to have a lot of time to post lots of other stuff. Curiouser and curiouser.

@Hamlet

the difference between what I actually said

Nope. As I’ve pointed out, your argument has an interesting pattern where you decide that terms mean whatever you want them to mean, situationally. People are entitled to due process, which means arrest and trial, except you have decided that you want your own definition of due process. Then, of course, you decide that due process really means a different sort of trial while disregarding the actual legal guidelines that mean you can’t try someone in absentia. And then you decide that that non-legal trial that’s going to count as due process is okay to use as a basis for initiating military action, unless someone is on “the battlfield”, which you can’t define, can’t cite, and whose legal relevance you can’t describe or cite.
But it totally matters.

@Hamlet

just maybe, we could debate this like adults.

So you’ve got that cite for the definition and relevance of your concept of “the battlfield” yet? Or just more empty snark?

@Hamlet

those on a traditional battlefield

Despite the weaseling inherent in your argument, battlefields have “traditionally” been everywhere from the heart of cities to empty plains. They’ve also been contrasted with military combat on the high seas, which still doesn’t mean that killing enemy troops if they’re on an enemy warship is not sanctioned under international law. That’s part of the problem with your ‘my post is my cite’ rationalization for why you don’t have a cite as to the definition, context or relevance of your “the battlefield” concept in law.

@Hamlet

I’ve provided caselaw in this thread (In Re Quirin)

Caselaw which addresses whether or not unlawful combatants can be tried by military tribunals, not whether or not people can be tried in absentia. Oops.

@Hamlet

Aaaaaand we’re back to you making stuff up.

Actually, we’re back to you making shit up in order to claim that I’ve made anything up. It’s… boring. And rather obviously you’re using this sad, sad tactic because you can’t actually cite your claim and you’re just making stuff up as you go along. Speaking of your “the truth is a lie!” gambit, should I point out that you’re actually making shit up by claiming that all I’ve argued is “nuhn uhn”? To say nothing of the fact that you’re still relying on your ‘my post is my cite’ gambit about your “the battlefield” concept, and you just ignored Ravenman’s cite that shows (again) that you’re making up your argument as you go along and then refusing to cite it because you’re busy and it’s dinner time and there’s travel going on and the sun is in your eyes and there’s a dog barking outside and hey look over there!

Speaking of you not actually citing your claims and hoping that you won’t get called out on it, got that cite yet for the context, basis, and definition for your “the battlefield” concept?

[Captain_Amazing]

@Hamlet

Why? I thought outright assassination was better than attempting due process with military tribunals before assassinating people.

Actual due process with military tribunals is better than assassinating people. Setting up a star chamber to try suspected terrorists in absentia so you can feel better about murdering them without trial isn’t really any better than just assassinating them in the first place. In fact, it’s worse, because you’re shrouding it with a veil of legality and you’re corrupting the legal system to try to turn what is at best a necessary evil (assassinating the guy) into an accepted legal process.

[Hamlet]

@FinnAgain

As I’ve pointed out, your argument has an interesting pattern where you decide that terms mean whatever you want them to mean, situationally. People are entitled to due process, which means arrest and trial, except you have decided that you want your own definition of due process.

I think you have a fundamental misunderstanding of due process and what it requires. Due process does, in fact, change. In some cases, say death penalty cases, it can mean one thing. In others, such as military tribunals of servicemembers, or citizen sabateurs in Quirin, it means another. I apologize if I didn’t take enough time to introduce you and others into the use of the term “due process” and the fact it does change depending on the circumstances and is not synonymous with “every Constitutional protection required.”

@FinnAgain

Then, of course, you decide that due process really means a different sort of trial while disregarding the actual legal guidelines that mean you can’t try someone in absentia.

The trial in absentia requirement is for federal trials, not necessarily military tribunals. And I could be wrong, it may be that I’m not advocating enough protections to meet the due process requirements of the Constitution. But at the very least, I’m not advocating no due process at all.

@FinnAgain

And then you decide that that non-legal trial that’s going to count as due process is okay to use as a basis for initiating military action, unless someone is on “the battlfield”, which you can’t define, can’t cite, and whose legal relevance you can’t describe or cite.

Again, you seem to be functioning (barely) under misconceptions about my position. The battlefield exception if for enemies on the traditional battlefield. My advocating a military tribunal for US citizens that the government wants to assassinate is for initiating military action.

@FinnAgain

Despite the weaseling inherent in your argument, battlefields have “traditionally” been everywhere from the heart of cities to empty plains. They’ve also been contrasted with military combat on the high seas, which still doesn’t mean that killing enemy troops if they’re on an enemy warship is not sanctioned under international law. That’s part of the problem with your ‘my post is my cite’ rationalization for why you don’t have a cite as to the definition, context or relevance of your “the battlefield” concept in law.

I understand you need to repeat, over and over, that I haven’t defined “battlefield” with enough precision to satisfy you. C’est la vie. If you think that’s a deal breaker, more power to you. But I think the fact that the Geneva Conventions and the laws of war realize that there is a time and place where enemy soldiers can be summarily killed, and times and places where they can’t be summarily killed, works in my favor. I look forward to repeating the “You haven’t precisely defined “battlefield” so you lose” ad nauseum.

@FinnAgain

Caselaw which addresses whether or not unlawful combatants can be tried by military tribunals, not whether or not people can be tried in absentia.

This argument would be much more compelling to me if it were made by someone who was arguing that we can’t assassinate US citizens, even if there was a military tribunal. Coming from somebody who is asserting the President has the power to assassinate anyone, anywhere, based only on his determination, strikes me as insincere. Maybe I am wrong. Maybe due process should require a citizens’ presence. But I’m willing to defer to the realities of the situation and to the President’s determinations, and put my faith in military tribunals.