Tyranny

Monday, September 27th, 2010

I don’t trot that word out lightly. But Jesus.

Here’s Glenn Greenwald:

In response to the lawsuit filed by Anwar Awlaki’s father asking a court to enjoin the President from assassinating his son, a U.S. citizen, without any due process, the administration late last night, according to The Washington Post, filed a brief asking the court to dismiss the lawsuit without hearing the merits of the claims.  That’s not surprising:  both the Bush and Obama administrations have repeatedly insisted that their secret conduct is legal but nonetheless urge courts not to even rule on its legality.  But what’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

There are no mitigating factors, here. Obama is arguing the executive has the power to execute American citizens without a trial, without even so much as an airing of the charges against them, and that it can do so in complete secrecy, with no oversight from any court, and that the families of the executed have no legal recourse.

You can’t even make the weak argument that the executive at least has to claim this power in the course of protecting national security. Because it doesn’t matter. Obama is arguing that he has the right to keep everything about these executions secret—including the reasons they were orderedt—merely by uttering the magic phrase “state secrets.” In other words, that this power would only arise under a national security context is deemed irrelevant by the fact that not only is Obama claiming the president’s word on what qualifies as “national security” is final, he’s claiming the power in such a way that there’s no audience to whom he would ever need to make that connection.

So yeah. Tyranny. If there’s more tyrannical power a president could possibly claim than the power to execute the citizens of his country at his sole discretion, with no oversight, no due process, and no ability for anyone to question the execution even after the fact . . . I can’t think of it.

This is horrifying.

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231 Responses to “Tyranny”

  1. #1 |  Aresen | 

    I would have said Star Chamber, but Tyranny will do.

    If the courts side with the government on this one, I predict that it will be applied within the boundaries of the US within 50 years.

  2. #2 |  jeff | 

    This gives me a very sick feeling overall. I can better understand how many before us were able to risk their lives fighting against such claims of authority over people. You can’t live with shit like this so, what the fuck, let’s throw down…

  3. #3 |  SamK | 

    I have to admit that I was really surprised when Obama pulled this one out of his hat. Perhaps shouldn’t have been, but however much I dislike him I just didn’t think he’d hit the slippery slope with a goddamned bobsled…

  4. #4 |  Aresen | 

    What authoritarian is down-ticking all of the comments? (All three posts are at -1 right now.)

  5. #5 |  BladeDoc | 

    But. . . But. . . But. . . He is the change that we’re waiting for! Hope! Change! Fluffy bunnies and unicorns!

  6. #6 |  rootless_e | 

    Try reading the brief. It’s rather different from what Greenwald describes.

  7. #7 |  Stephen | 

    OT: cops getting tazed

    http://www.youtube.com/watch?v=IGzDUUtuyJE&NR=1

    I just thought it was funny. :) IMO the black guy took it the best.

  8. #8 |  trackerk | 

    I can’t see what geography has to do with it. If they can target a citizen for death in a foreign country, why not in the U.S? We should ask Randy Weaver his thoughts.

  9. #9 |  John Jenkins | 

    What they seem to be saying is that they can target a U.S. national who is actively levying war against the United States in a foreign country.

    So, the first question we would ask is, suppose it’s not a U.S. national who is actively levying war against the United States. Can the military kill that person without it being an act of tyranny?

    If your answers to those two differ, based only on the citizenship issue, then consider a hypothetical battle between U.S. military forces and an enemy force, during which the U.S. military forces kill ten of those enemies. Later, one of those enemies is determined to have been a U.S. citizen.

    How does citizenship hold up as a differentiator in these cases? I think not well, but I am just asking questions here.

    A possible objection is that in one there was deliberate intent to actively seek out and kill someone who is a U.S. citizen, while in the other it is an accident of war. Many people who frequent this forum are rather utilitarian, and cannot reasonably raise this objection. The ontological objection would have to rely on the intent issue, I believe, and has more traction.

    The plaintiffs in this case argue that the government *does* have this authority if the target “presents concrete, specific, and imminent threats to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threats.” This standard does successfully deal with the battlefield death I mentioned above and the assassination as well, but implies a couple of questions: to whom must they show the evidence and what is reasonable? Ultimately, I think this is too permissive, because I could drive a semi through both of those (e.g., the “to whom” is the first O-6 or higher they can find, or through generous interpretations of “reasonable”).

    The biggest impediment that the plaintiffs have here is the rule that equity will not enjoin a crime (the theory being that crimes are ALREADY illegal, so the injunction serves no purpose: there are exceptions, see, e.g., securities law violations). I suspect that the case will be dismissed on that basis.

  10. #10 |  Nancy Lebovitz | 

    How predictable was this before the election? Would TheAgitated care to weigh in on whether McCain would have been any better?

  11. #11 |  chuchundra | 

    Well, here’s where I break The Agitator down vote record…

    This this thing has been so blown out of proportion it’s beyond ridiculous. It’s not an “assassination list”. It’s capture or kill orders issued on high value targets who have offered aid and comfort to groups that have taken up arms against the US Government and are beyond the reach of regular law enforcement. This isn’t anything different than any other President would have done in similar situations.

    Scaremongers like Greenwald (who hatessess the Obama) have tacked on the “American Citizen” qualifier to imply that any one of us could be ordered killed if we got on the wrong list. There is zero evidence that this is true unless you suddenly got a hankering to join a terrorist group and hang out with them in their secret cave in East Buttfuck, Yemen.

    And there’s plenty of good tactical, strategic and operational security reasons not to release a list of our most important, high value targets to the general public.

  12. #12 |  Alex | 

    John Jenkins:
    It’s the unilateral un-challengeable un-reviewable due-process-less assassination power that Obama is claiming that bothers us.

  13. #13 |  mattt | 

    This guy may be an American citizen, but he seems to have aligned himself with foreign enemies, and to be actively waging war (to the best of his ability) against America, from a base on foreign soil. Hasn’t he effectively renounced his constitutional protections?

    “Arresting” him would seem to imply invading a foreign country, even in context of a raid. That would probably mean (at least) dozens of foreign nationals killed, infrastructure of a very poor country damaged leading to further hardship, and lives of US servicemen put at far greater risk than is the case with cops executing what we usually think of as “arrest.” Not to mention political capital expended, which eventually will add up as lives in Somalia or Palestine or wherever. Is this really the more moral option?

  14. #14 |  rootless_e | 

    Obama is not claiming anything of the sort. Greenwald’s standards of accuracy are poor.

    The DOJ’s first argument is that you can’t get an injunction to tell them to not break the law when they have no intention of breaking the law.

    The second argument is that Alwakis father has no standing to sue on his behalf, Alwaki has chosen not to sue or even to state that he has a case he wishes US courts to address, and his father can’t do it for him.

    The whole controversy is fraudulent.

  15. #15 |  mattt | 

    Re: The question of judicial review….I suspect that Mr. Awlaki could negotiate surrender to authorities at any time, and avail himself of the full protections of the US legal system.

    If there was one word anywhere from Awlaki himself that he was not an enemy of the US, and was willing to come in, I’d have a lot more sympathy.

  16. #16 |  Alex | 

    “It’s not an ‘assassination list’. It’s capture or kill orders”
    Oh, it’s a capture or assassination list. That makes it better.

    “…issued on high value targets who have offered aid and comfort to groups that have taken up arms against the US Government and are beyond the reach of regular law enforcement.”
    It’s Obama’s claim that he can decide who is on this list and order their execution without providing any justification, without even the possibility challenge or review, just because he’s Obama, that is so awful about all this. Maybe this Awlaki guy deserves to be killed. But that’s not the issue.

    “This isn’t anything different than any other President would have done in similar situations.”
    That is so not encouraging to Agitator readers.

    “Scaremongers like Greenwald (who hatessess the Obama) have tacked on the ‘American Citizen’ qualifier to imply that any one of us could be ordered killed if we got on the wrong list.”
    He is an American citizen, whether Greenwald is an Obama-hating scaremonger or not.

    “And there’s plenty of good tactical, strategic and operational security reasons not to release a list of our most important, high value targets to the general public.”
    Is the only way to have those names not released to give our President autocratic execution powers? If the President does have those powers, will those names certainly not end up known to the people we don’t want them known to?

  17. #17 |  Jeremy | 

    Didn’t take long for the Obamabots (chuchundra, etc.) to show up, did it?

  18. #18 |  la Rana | 

    Shorter Chuchundra: Assassination of an American Citizen is not the preferrred nomeclature. Its a capture-or-kill-order-issued-on-a-high-value-target-who-has-offered-aid-and-comfort-to-groups-that-have-taken-up-arms-against-the-US-Government-and-is-beyond-the-reach-of-regular-law-enforcement, please.

    Shorter mattt: If we can’t arrest American citizens for doing things in other countries that are illegal in the US, we regrettably have no choice but to kill them.

  19. #19 |  Jeremy | 

    If Bush were still in power and doing this, chuchundra would talk about how evil it is. But hey, it’s only bad when the other party does it, right?

  20. #20 |  mattt | 

    @ la Rana: The question isn’t about arresting him so he can face the music for past misdeeds. If it were, I’d be with you. The question is about how the government should properly address a self-proclaimed, active threat to American lives.

  21. #21 |  Obama's Tyranny - INGunOwners | 

    [...] He could do the same to anyone, anywhere using the "national security" reasoning. Tyranny | The Agitator __________________ [...]

  22. #22 |  Highway | 

    chuchundra, if it’s so obvious the guy needs to be on whatever list, then the government should *prove it*. That’s the point. Whether we like it or not, the government DOES have the power to take lives. Government agents have the power to take lives of people every day. We can talk about how appropriate it is. We can take them to court, or they can face criminal charges.

    But not here. Here it’s “Because I say so, and don’t ask me to elaborate. Just trust me.” That’s the problem.

  23. #23 |  la Rana | 

    The same way it addresses drug wars in Mexico and kidnappings in Columbia: issue a travel warning and alot resources to make the problem worse.

    when did everyone because such a freaking pansy? 1) Don’t shit your pants over every wacko with a youtube video, and 2) Don’t go to Yemen. Even without #1, that strategy has a 100% survival rate as from terrorism (0% survival rate generally). You are more likely to die from an infected hangnail than from Anwar Awlaki. Man up.

  24. #24 |  rootless_e | 

    Prove it to who? The US constitution does not ask the Judiciary to review all military actions of the executive. Thomas Jefferson did not get a court order allowing him to send the navy to Tripoli. Those actions are the province of the other two branches.

  25. #25 |  sinjan | 

    It’s baffling to read that this has been blown out of proportion, or that it’s no big deal because the accused has aligned himself with groups hostile to the US. Whatever your political inclinations, just imagine your worst nightmare running for president, someone you think has just awful judgment and distorted perspectives, that person wins. Now imagine another attack on US soil, one that inevitably ramps up the fear and hysteria even more than current state of things and justifies all manner of Executive excess. Are you still comfortable with the president having unquestionable absolute authority to identify and kill US citizens?

  26. #26 |  John Jenkins | 

    @Alex: The problem is I don’t think your reasoning successfully differentiates among the three cases I posited. Lots of people die in combat without due process, without a specific reason for their deaths, etc. I think intentionality might be a differentiator, but that doesn’t successfully differentiate the first two scenarios, so it would have to be intentionality + citizenship, but that seems like special pleading to me (which doesn’t mean it’s wrong, of course).

  27. #27 |  Kevin3% | 

    I get more and more queasy as time passes.
    Star Chamber, without rule of law, executive fiat are all phrases that come to mind. We really have fallen to a new low.

    What the terrorists have been most successful at is turning our system of justice, our way of life…indeed the very principals that once separated us from despotic regimes, on its head…all in the name of a war on terror.

    and I doubt it would have been any different under a McCain presidency.

    WE ARE FUCKING DOOMED!!!

  28. #28 |  EH | 

    And so the Jihadists succeed in forcing the US government to use the Constitution against its own citizens. Masterful.

  29. #29 |  rootless_e | 

    “and I doubt it would have been any different under a McCain presidency.”

    That’s always the subtext of these exercises in righteous indignation – and, truly, there is no teabagger theory that is more nutty than that supposedly “progressive” one.

  30. #30 |  la Rana | 

    JJ impliedly makes a good point: Obama is indiscriminantly murdering people in Pakistan, so murdering people in Yemen should be no different.

    I offer the following advice/observation: taking seriously the proposition that you can declare war on an abstract noun will melt your brain.

  31. #31 |  InMD | 

    While I know Glenn Greenwald comes at these issues from the left I think his blog should be on everyone’s reading (surfing?) list. His documentation of the insanity unleashed by an ever more powerful and unaccountable executive branch is excellent not least because of how unflinching it is. His is one of the handful of voices on the left with whom I think libertarians would do well to make common cause.

  32. #32 |  Stormy Dragon | 

    Alwaki has chosen not to sue or even to state that he has a case he wishes US courts to address

    He can’t sue because, having been declared a “Specially Designated Global Terrorist”, no lawyer is allowed to represent him in court without permission from the US Treasury Department. The government has banned anyone working with him directly from filing a lawsuit and is now using the lack of such a lawsuit to argue for banning anyone not working directly with him from filing a lawsuit. It’s so Kafkaesque it would be funny if it weren’t really happening.

    The question isn’t about arresting him so he can face the music for past misdeeds.

    In part because Awlaki hasn’t actually been indicted for anything.

  33. #33 |  rootless_e | 

    “Are you still comfortable with the president having unquestionable absolute authority to identify and kill US citizens?”

    If they are in foreign countries, not subject to extradition, openly inciting warfare against Americans and working in organizations that are attacking Americans, sure.

  34. #34 |  Stormy Dragon | 

    @rootless_e:

    Can the president order the assassination of people for being bad drivers? Tens of thousands more Americans are killed in car accidents than by terror attacks.

  35. #35 |  Michael Chaney | 

    I know *I* didn’t vote for the guy. For those of you who are going to trot out “he’s just as bad as Bush” – no, he’s worse. Not only is he absolutely worse in his policies, he’s also worse because he’s a complete hypocrite. He was going to change everything, remember?

    The funny thing was that I at least had some hope that he would get rid of some of the stupider parts of the WOT, such as the moronic sign in every airport telling you that the terror threat is always at least “elevated” (which is meaningless – if it’s always elevated then it never is). He couldn’t even muster up the guts to do something that simple.

    His Vaterland Security, oops, Homeland Security department has told municipalities to guard their critical infrastructure, so we have idiots in Kentwood, Nowhere trying to keep some guy from taking a picture of the water tower. We’re actually escalating the stupidity.

    Even if you believe McCain would have been as bad, at least he’s unlikely to have given $1T of money borrowed from China to his friends in the first year.

    It’s sad to say, but I don’t believe Barack Obama has any redeeming qualities….

  36. #36 |  Radley Balko | 

    …openly inciting warfare against Americans and working in organizations that are attacking Americans, sure.

    And who gets to make those determinations? The same people who unilaterally determined that everyone in Gitmo was also conspiring against us, and represented only the “worst of the worst”?

  37. #37 |  Les | 

    If they are in foreign countries, not subject to extradition, openly inciting warfare against Americans and working in organizations that are attacking Americans, sure.

    And do you feel the government should have any obligation whatsoever to provide evidence that the individual is guilty of these things before they target him?

  38. #38 |  Dave Manchester | 

    The US Supreme Court no longer has jurisdiction.

    They constructively abandoned it over several decades of ducking rulings while expanding “state secrets” for whatever bozo happened to suck up air in the oval office at the time.

    So I don’t think it much matters what SCOTUS does, or doesn’t do, or does, or doesn’t say, on much of anything, anymore.

    fwiw,
    dcm
    twitter: @dredeyedick

  39. #39 |  Stormy Dragon | 

    For those of you who are going to trot out “he’s just as bad as Bush” – no, he’s worse.

    Does it matter who’s worse? Both were way too bad.

  40. #40 |  rootless_e | 

    “And do you feel the government should have any obligation whatsoever to provide evidence that the individual is guilty of these things before they target him?”

    Is there a question about the evidence in this case? Is there any doubt?

  41. #41 |  KristenS | 

    Again, this isn’t so much about this specific case as it is about extrpolating this to any American citizen. And if you don’t think this sort of power would be used on “regular” citizens like ourselves, then you haven’t been paying attention.

  42. #42 |  rootless_e | 

    “Can the president order the assassination of people for being bad drivers? Tens of thousands more Americans are killed in car accidents than by terror attacks.”

    Generally bad drivers operate within the USA and are subject to state and national law. There is no similarity between these cases or even the actual Bush administration abuses of people who were in custody. There is a big difference between a person who is in custody and a person who is beyond legal sanction. Do you think that if Israeli agents had killed Eichmann while kidnapping him, always a danger, that they would have been guilty of a crime?

  43. #43 |  la Rana | 

    evidence of what? doubt about what? being murderable without due process of law?

  44. #44 |  la Rana | 

    rootless: YES YOU MORON. Kidnapping and murder are against the law in every country on earth. It makes no difference whatsoever that your president-daddy said you could have a lolly.

  45. #45 |  rootless_e | 

    “Again, this isn’t so much about this specific case as it is about extrpolating this to any American citizen.”

    It really is about this specific case. Contrary to Greenwald, the government does not argue for a generic right to kill Americans without review.

  46. #46 |  rootless_e | 

    “And who gets to make those determinations? The same people who unilaterally determined that everyone in Gitmo was also conspiring against us, and represented only the “worst of the worst”?”

    So you think President Jefferson acted illegally when, without even congressional authorization, he sent the US Navy to attack Tripoli?

  47. #47 |  rootless_e | 

    “YES YOU MORON. Kidnapping and murder are against the law in every country on earth. It makes no difference whatsoever that your president-daddy said you could have a lolly.”

    You are so deluded it strains the imagination to try to guess how you could have led such a sheltered life. For example in Yemen, where Mr. Awlaki chose to reside, kidnapping and murdering a woman is often legal if there is an “honor” justification. And of course, nothing Mr. Eichmann did in the course of his employment by the legal government of Germany was illegal under German law. The world does not operate according to your bureaucratic fantasies.

  48. #48 |  ktc2 | 

    How far is it from this to doing the same to members of “terrorist” groups in the US like militias or antiwar protest groups? It’s just one nutcase politician’s slippery definition away.

  49. #49 |  Why This Independent Won’t Vote “D” Any Time Soon « The NorLa Blog | 

    [...] This Independent Won’t Vote “D” Any Time Soon Radley Balko on Obama’s latest invocation of the state’s secret privilege: Obama is arguing the executive has the power to execute American citizens without a trial, without [...]

  50. #50 |  la Rana | 

    what exactly do particularized justifications for otherwise legally prohibited actions (the US has them too, thanksverymuch) have anything do to with this? For that matter what does the legal status of Eichmann’s actions have to do with anything? What bureaucratic fantasies? What in gods name are you babbling about?

  51. #51 |  Derfel Cadarn | 

    The only person the executive has the authority to have killed would be themself. The exercise of that authority would be most welcome.

  52. #52 |  Les | 

    Is there a question about the evidence in this case? Is there any doubt?

    The question is, do you care? If we see a video of a person committing a crime, do you believe it is then appropriate to skip a trial and move right on to sentencing?

    Due process isn’t only appropriate when there is a doubt of guilt. This is a very, very basic concept in a free society.

  53. #53 |  rootless_e | 

    But it’s not illegal to wage war on the United States. That’s not a criminal matter.

  54. #54 |  InMD | 

    To those who somehow think this is appropriate due to the crimes that these individuals are alleged to have committed or be plotting you’re missing the point. When you throw out accountability and the rule of law it becomes extremely difficult to get it back, particularly when the ultimate arbiters of such decisions have a vested interest in not restricting their own power. Indeed the more such activity is kept secret, as the Obama administration is arguing they should be, the more it undermines the democratic process in that the people don’t rightfully know what the government is doing thereby exacerbating the increasing meaninglessness of elections.

    Additionally you’re making huge assumptions about the competency of the government to make these kinds of decisions. It isn’t like the United States government hasn’t already been directly involved or complicit in torturing people who turned out to be innocent of any wrongdoing. Essentially you have to believe that the government is infallible or that the inevitable screw ups and collateral damage are morally acceptable. Just like the SWAT team doesn’t always get the right house the CIA or whoever isn’t always going to get the right person and considering the intelligence community’s propensity for getting the big questions wrong over the last 25 years it may well be worse. I don’t think any rational person would deny the right of U.S. military personnel to kill American citizens taking part in combat but that is not the same as assassination.

    The most effective albeit imperfect check on government incompetence is due process. We abandon it at our own peril.

  55. #55 |  Mattocracy | 

    How many times has our government done something outrageous and said its only for the worst and only for limited circumstances.

    That’s what they said about Gitmo, and how many innocent people have been released?

    SWAT Teams were for crisis scenarios, and how often are they deployed now? Everyday for each and everyone almost.

    How about that domestic spying that was just for terrorists but is now for every American.

    The most telling tale of the times is that the DOJ and FBI referred to Ron Paul supporters and people who carry copies of the US constitution as possible domestic terrorists.

    So to rootless_e, chuchundra, if you honestly think that this won’t lead to American citizens being assassinated on US soil for having a negative opinion about our government, you two are completely delusional.

  56. #56 |  The_Chef | 

    Rootless you’re not getting the point. The point is not about whether this guy deserved to have a nutjob from Delta Force turn his head into Strawberry paste.

    The point is that Legislation that eliminates rights often begins as rather benign bills. These are then amended, changed, reinterpreted, modified, Or the regulatory parts of them are simply ignored.

    Do YOU trust the asshats in DC to actually follow their own rules?! Especially given Radley’s article in Reason on Prosecutorial Misconduct?!

    Man pass that pipe you’re smoking, I’m gonna need some to get through the coming shitstorm.

  57. #57 |  Les | 

    But it’s not illegal to wage war on the United States. That’s not a criminal matter.

    So, if a citizen “wages war” on the U.S. (terrifying, really), then that person has no reason to expect any kind of due process, whether it be via our Constitution or, say, the Hague or Geneva Conventions? Once the government decides that a person is “waging war” against it, then that person should have no recourse to defend himself from that conclusion.

    Because the government doesn’t get things like that wrong? Is that what you’re suggesting?

  58. #58 |  la Rana | 

    it’s not illegal to wage war on the United States.

    Of course it is. Its called attempted murder. Its even illegal for US citizens to declare war on the United States. They wrote that one down early.

    Are you wrong about everything rootless, or did you just frontload this thread?

  59. #59 |  Elemenope | 

    Good heavens, what a mess.

    I agree with those who are saying that to call this a “death list” where names end up on it by the grace of political affiliation or what-have-you or anything analogous are overblown. The government is not arguing for that, and there is no evidence that that is so, nor is the slippery slope argument particularly persuasive. This isn’t a president-can-kill-anyone-he-doesn’t-like doctrine.

    But the arguments for why it can’t be justified in a court of law are *weak*. The evidence could be reviewed in camera, witnesses who could be compromised in intelligence duties could testify with identity protection (the same way undercover LEOs sometimes do) or in worst case by transcript if they can’t be extracted. It strains the bounds of credibility that a trial, especially one under those conditions, jeopardizes any state secrets or other interests. If the government wishes to assert its actions are legal, those actions must be able to withstand judicial scrutiny.

  60. #60 |  Michael Chaney | 
    it’s not illegal to wage war on the United States.

    Of course it is. Its called attempted murder. Its even illegal for US citizens to declare war on the United States. They wrote that one down early.

    Actually, it’s called “treason” and it *is* a criminal matter. That means the accused should be brought to court and tried. It’s one of the very few original federal crimes, and is actually mentioned in Article III Section 3 of the Constitution:

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

    If he is actively fighting against US forces- in Afghanistan, for instance- and happens to get shot on the field of battle, I don’t think many people would argue against that. But what Obama is ultimately wanting to do is knock the guy off with a Predator, and that’s a whole nother ball game.

    If what’s said about him is correct, then he definitely fits the definition of adhering to an enemy. But you can’t have part 1 without part 2, and part 2 says specifically that you need two witnesses or a confession in open court. It would have been assumed that the “two witnesses” would be part of a court case, as the word “convicted” in that sentence presumes a trial.

  61. #61 |  Dave Krueger | 

    I am just so glad that the democrats are reversing all those violations of civil liberties and privacy that Bush asked for (and got) after 9/11. I really feel like we are back on the path to rule of law now. I found myself especially pleased when Obama so aggressively went after AT&T and Verizon for conspiring with the government to violate wiretap laws.

    I wonder what the chances are that the courts will permit the lawsuit to proceed knowing that the executive branch thinks it has the right to summarily execute American citizens with zero accountability.

    Yeah, sometimes I just can’t contain the ecstasy of living under the rule of a government that will stop at nothing to guaranty my freedom.

  62. #62 |  John Jenkins | 

    Actually, pursuant to 18 USC 2381, it is illegal for a U.S. national to wage war on the United States.

  63. #63 |  la Rana | 

    Chaney, you misread my post. Otherwise, yes, precisely.

    To clear up one misconception, Bush not only authorized the assassination of American citizens, but actually did actually assassinate an American citizen in Yemen.

  64. #64 |  albatross | 

    Imagine you are wanted for crimes against the state by a certain country. That country is known to have reasonably fair courts, and reasonably well-behaved lawmen, by international standards.

    However, the country is also known to have used torture extensively on many captives wanted for the same crimes as you are charged with. The authorities in that country promise that the torture is a thing of the past.

    That country also has a great many people charged with the same sort of crime as you, who have waited years for a trial. Some, the authorities of that country have decided will never have a trial for the accused crime, but instead will be detained forever. Still others have been put in a kind of confused muddle of a show trial. A few have been tried in the reasonably honest regular court system.

    Do you turn yourself into that country? Let’s assume you’re innocent of the charges. Do you trust that you’ll ever have a day in court? Or even that the authorities won’t whisk you away to some deep dark hole and start trying to beat answers out of you?

  65. #65 |  albatross | 

    Elemenope:

    Can you clarify what would prevent the president using just these powers with just the process they want (which seems to be no independent review by anyone not taking the President’s orders) to have someone assassinated who wasn’t really a terrorist? I mean, assuming the administration ordered Glenn Greenwald assassinated, what would be the process by which that would be prevented? (Note: Glenn Greenwald lives in Brazil, but is a US citizen.)

  66. #66 |  Mike Leatherwood | 

    Mr President: Life ain’t like a Tom Clancy novel. Well, it isn’t supposed to be.

  67. #67 |  Sydney Carton | 

    I’m a little unclear on the idea of who and under what authority a person would review this evidence. I don’t think that the Judiciary branch would have authority to order a president to not “wage war” pursuant to his constitutional powers. The President is a co-equal authority along with the Court.

    Besides, a Court won’t touch this with a 10 foot pole, because even if they said “no,” a President might do it anyway secretly and it wouldn’t come out for years afterwards and then he’d be hailed as a secret spy hero or something defying the libs on the Court (and trust me, I hate the libs on the Court just as much as anyone). Or, the President could pull an Andrew Jackson and tell the Court to go to hell. They don’t want that to happen because if their bluff is called it would destroy them.

    So this will be resolved the old fashion way: The Congress could try to impeach a President that did this. It could pass a law saying it’s illegal to do this, and if the President did it anyway claiming he was exercising his war powers under the Constitution, the Congress could hold a trial via impeachment to see if that’s what they wanted. If they convict the President and remove him from office, then that would settle the matter.

    But it’s highly unlikely to come to that because there’s no politician alive who will put the well-being, or “rights”, of a person making war on the United States above those of the citizens he wants defended.

    The problem is that it’s come to this in the first place. Ike would’ve just told the CIA to eliminate the problem and that’d be it. Sometimes, the world is messy. You don’t want this sort of thing public because then some idiot actually makes a case about it and then all of a sudden the President is forced to make a stupid argument that he has the authority to kill people he wants to. People know he does it, but the reason why it’s not talked about publicly is because it destroys the case for Representative government. Half the people will think he’s illegitimate and no better than a dictator. The other half actually like the power and want him to assume more of it. Either way, the populace loses faith in democracy.

  68. #68 |  StrongStyle81 | 

    Due process is one of our country’s highest ideals. If the Obama administration can prove this man is guilty of treason and is a threat to the United States then let them take that evidence before a court or committee. If we continue to sacrifice our national ideals for the illusion of safety then we’ll be a country with no ideals. We are losing our soul and all we do is bicker about the petty details.

  69. #69 |  GreginOz | 

    G’day y’all. Reminds me of, here in Oz, the Australian Federal Police & their informing Indonesia that a bunch of Aussies where coming over to deal smack. Naturalich they didn’t arrest them on Australian soil, oh no. They told the Indo cops & now these morons are on death row over there. What a lovely way to treat Aussie citizens…Same Old, Same Old…

  70. #70 |  Elemenope | 

    Can you clarify what would prevent the president using just these powers with just the process they want (which seems to be no independent review by anyone not taking the President’s orders) to have someone assassinated who wasn’t really a terrorist? I mean, assuming the administration ordered Glenn Greenwald assassinated, what would be the process by which that would be prevented?

    Because, among other things, the Presidency doesn’t exist in a vacuum, and in particular there is a whole lot of “institution” between him or her and the end point of a successful assassination. I would imagine that if an administration started engaging in rank political assassination, there would be some warning signs (resignations in protest, leaks, etc.). People certainly resign in protest and leak info for far less.

  71. #71 |  qwints | 

    A little late to the party but here goes.

    The US made a number of arguments to dismiss.

    1. No standing
    2. Political question
    3. Discretion
    4. No cause of action
    5. State Secrets.

    The first four are not what Greenwald or Balko are upset about. The political question doctrine is really the only one worth getting upset about on its face. That argument is based on the idea that Congress has authorized the use of military force against Al Qaeda and that the Judiciary can’t tell the president how to wage war. Which sound reasonable, until you realize that the executive is claiming the exclusive ability to determine who to fight and where to fight them. It’s not some slippery slope argument. They are actually claiming that the judiciary cannot review ANY action against ANYONE outside the US as long as that person is labeled a terrorist.

    The state secrets argument is another disturbing claim. The government argues “Indeed, it would be extraordinary for the Government to be required to confirm or deny [planned assassination] in a lawsuit brought by the father of an operational terrorist who remains free to plan attacks against the United States.” Here the government is literally contending that no assassination order can be reviewed because it is so entangled with state secrets.

    I campaigned for Obama. At one precinct event, I stated that I was voting for Obama to help restore the rule of law. Unless something dramatically changes, I will not be voting for him again.

  72. #72 |  CasdraBlog » Blog Archive » links for 2010-09-28 | 

    [...] Tyranny | The Agitator (tags: politics) [...]

  73. #73 |  Collin | 

    “I campaigned for Obama. At one precinct event, I stated that I was voting for Obama to help restore the rule of law. Unless something dramatically changes, I will not be voting for him again.”

    Same here. I voted for Obama but that may have been the last time I’ll vote Democrat. I voted for the Libertarian Joe Kennedy in the last Massachusetts special election and will likely vote for whomever the Libertarians put forward in 2012. Assuming a massive and dramatic policy reversal, which I can’t see happening, I won’t vote for Obama again.

  74. #74 |  Boyd Durkin | 

    This is nothing that another decade of war, trillions in spending, hundreds of thousands of deaths, and further restrictions of privacy and freedom can’t solve. Let’s, of course, throw in a few billions in wealth redistributed to the politically connected while we’re at it.

    The state IS the enemy.

  75. #75 |  Boyd Durkin | 

    For the Obama-fluffers, remember that this power doesn’t leave office with him. It will remain when Glenn Beck is elected President in 2012.

  76. #76 |  Henry Bowman | 

    To commenter 11 [chuchundra]:

    I guess the Randy Weaver case and the slaughter of literally tens of people near Waco, TX, must have been done by some other government. The U.S. government would never deliberately slaughter innocents, would it?

  77. #77 |  refuse2lose | 

    You can tell by the comments who you need to worry about when the government finally decides it has had enough of it’s citizens practicing their inalienable rights. They will be the ones knocking on your door and barking orders.

    America has went from being the greatest country ever founded to the greatest country ever to have fallen. I blame the government and it’s public school indoctrination program.

  78. #78 |  Lucy | 

    Obviously the deserved death for having unsound racial and religious views, Henry (I wish this was a strawman, instead of only a hair of exaggeration.) Also for daring to not immediately obey all governmental and law enforcement orders.

    Here in Pittsburgh we got a whole lot of that after G-20. What? He was shot with rubber bullets and tear gassed? Well, he didn’t obey police orders to run home and hide under the bed.

    So many people have bought the propaganda about obeying authority hook, line and sinker. Which is bad enough. But what is worse is that they believe everything that follows your lack of obedience (even if it was only momentary) is the government or LEO’s prerogative.

  79. #79 |  Matt | 

    Arguing about who is and isn’t included in this group of possible targets is irrelevant. Once you create a group, no matter how small or dangerous, that needs no oversight or proof to be executed it becomes impossible to know how that mandate is being used. It reminds me of Jurassic park, when they are always looking for the exact amount of dinos on the island…. Once they start looking for more they all say, ‘but that’s impossible’!

  80. #80 |  Nando | 

    I read about half of this thread and decided to just post a solution, since I didn’t find one thus far.

    I served in the military for 10 years, and I also held the highest security clearance issued by the US Gov. so this got me thinking of a middle ground.

    I’m sure everyone’s heard of the FISA court. It’s composed of judges with security clearances that can hear/see all the classified evidence. Why not create a court that can hear any case involving “state secrets?”

    It can be composed of a panel of 7 judges, chosen by a bi-partisan committee of 8-10 people, from a pool of current federal justices. To avoid the controlling party from appointing “favorable” judges, a judge must get 3/4 of the vote from the panel (say 6 of 8 votes) in order to be confirmed. The selected judges can then undergo the security clearance process and thus be able to see all the evidence. The judges could then go on and make their decisions based on ALL the facts.

    Here’s the best part: they could refuse to hear a case based on bullsh!t (i.e. the claim of state secrets is bogus) and thus it would be heard by a regular court. They could act as a buffer to decide if the evidence should be kept secret or not.

    This way, we end up with a court that can review everything regular courts can’t and, thus, nothing can be hidden behind a state secrets claim.

  81. #81 |  Nick T | 

    Emenelope,

    Can you explain your basis for this conclusion?: “This isn’t a president-can-kill-anyone-he-doesn’t-like doctrine.”

    One might say that if suddnly the FBI or other LE agencies came out tomorrow and asked to do away with the warrant requirement for searching homes that they were not asking for a police-can-search-anyone’s-home-they-want rule, but this would be hopelessly naive. The American ideal is that power will be abused and must be checked. So when the President wants to kill Awlaki he might in his super-pure heart believe he’s a bad man, but he’s asking for the power to kill whomever the President deems worthy of being killed. Today it’s a guy who has espoused (Constitutionally protected) anti-American views and advocated for violence (also protected). Tomorrow it might be Julian Assange or some journalist who has been leaked, say, the torture photos Obama has shileded form release. Killing those men, it could be easily argued, would seriously diminish the chance that their revealing of information will motivate a terorrist to kill a group of Americans, so why not kill them?? They’re not even American!

    It’s not hard to imagine, if you try.

    rootless’s arguments are so absurd, it’s laughable. he dismisses Greenwalt but check either of their twitter accounts from yesterday and see how badly Greenwald destroys him when they go head to head. It’s embarrassing. There is very little public evidence that Awlaki committed a criminal act or an act of war. he has *said* that he agree with violence and wants to see more violence and he allegedly spoke with men, or to men, who then went on to commit crimes or acts of war. But that’s not evidence enough. I mean there is open and shut evidence of the Bush adminsitration committing war crimes, but even people who want to see Bush/cheney spend the rest of theirlives in solitary confinement don’t believe in simply sending them off to prison without a trial.

    And John jenkins, it shouldn’t have to be pointed out that person *engaging in acts of war or violence towarda American soldiers on the battlefield* can be gunned down without due process, American or otherwise. International law carves out this rule explicitly. It’s not illegal to kill an American in a battle (unless of course you’re a 15yo native of a country America invades). It’s illegal to order te death of an American whether or not he is engaged in a battle. Citizenship matters because the Constitution protects American citizens abroad and so the governing law is different. Consider this, non citizens who were just shooting at Americans 1 minute ago, but have since laid down their arms can not be killed under the law. So exactly how could this be legal?

  82. #82 |  Nick T | 

    Oh and anyone who is ok with this power, is also ok with China killing its citizens on the streets of Nashville while they sit at a coffee house. When that happens, all you people ok with this shit better STFU.

  83. #83 |  ktc2 | 

    Elemenope, seriously? Public opinion is going to stop them?

  84. #84 |  Cynical in CA | 

    The sovereign always had the power to kill anyone, anytime, for any reason.

    The only difference is that now it is explicit rather than implicit.

    There are no limits on sovereign power save the limits the sovereign self-imposes.

    Glad to see the blinkers are coming off ….

  85. #85 |  Brandon | 

    Cyn, was that supposed to be blinders? ‘Cuz if not, I don’t get it…

  86. #86 |  Elemenope | 

    Elemenope, seriously? Public opinion is going to stop them?

    Take the example that was proffered by someone above; Glenn Greenwald assassinated by drone while in Brazil.

    You don’t something like that would cause holy-hell-on-Earth in American politics? That’s so cynical it’s amazing you can bring yourself to believe in something like the rule of law outside of a textbook. People are still people, and something like that would rupture all bounds of civilized discourse and expectations of government power. No, such a president wouldn’t last long at all; he’d either be deposed quickly or seize power as a dictator directly. It’s not likely to be a stable state.

  87. #87 |  Cynical in CA | 

    Brandon, blinkers and blinders are interchangeable, kind of like “careened” and “careered.” Not sure why, but that’s how it goes. Use blinders if you prefer, the meaning was clear enough.

  88. #88 |  Cynical in CA | 

    Great example Elemenope. It’s actually happened before, albeit in Chile, not Brazil. Huge difference there.

    /sarcasm

    http://www.fff.org/blog/jghblog2010-04-12.asp

    “… [I]n 1999, a State Department document was declassified that admitted that the CIA had played “a role” in the murder of a young American journalist named Charles Horman during the coup. We don’t know precisely what that role is because the CIA isn’t talking and the Congress has always been too indifferent or too afraid to ask. But the obvious question arises: How can the CIA honestly claim to have played no role in the coup when it admittedly played a role in the murder of an American journalist during the coup?”

    http://en.wikipedia.org/wiki/Charles_Horman

    Not to mention all of the journalists killed by the U.S. military in Iraq, and countless other places around the globe.

    No, elemenope, I’m going to have to disagree with you. The chief executive, or Emperor as I like to call him, can pretty much do anything he pleases, public opinion be damned. However, if the Emperor upsets his Praetorian Guard, he better watch his ass.

  89. #89 |  ernest | 

    Truth is president has allways been able to do that. its been labeled ghosts and wet work. unfortunately obama is a idiot so of course he would get busted. if americans were involved that needed to be excuted we should have had it done bye someone from another country duh. as for him being on a slipperu slop. you guys think he wanted this done or one of his money supporters wanted this done. truth is our politicians are bought and paid for and are military is treated like a 2 dollar hooker

  90. #90 |  Boyd Durkin | 

    What would be nice is to see a discussion on the effectiveness of assasinating an individual. Sure, it’s a philosophical statement but killing one man (or even several) just doesn’t solve your long term problem.

    For a cinematic interpretation of this, watch that scene at the end of “V” again. You cannot kill an idea with bullets…even the bad ideas. This is more theater from some bitch-ass politicians wanting to be ninjas and hoping you’re stupid enough to believe it makes you safer.

    Any estimates on how many people have been assasinated in the Middle East over the last 60 years? I guess just a few more murders will get us that peace stuff.

  91. #91 |  ernest | 

    one man is never assinated unless they are your problem. when obama said states secrets. truth be known it might have been collected information about something shady him or the white house was up to. for simple assinating seems like he has to much involvement

  92. #92 |  Elemenope | 

    Judging from the swift vote down of my last comment, I’m gonna go with almost paralyzing levels of cynicism. Really, if you think that a president could get away with political assassinations with impunity, why do you bother at all with politics and political thought? Either launch the revolution already or go curl up in a ball and cry.

  93. #93 |  Lucy | 

    Not that I condone assassination, but I think it’s fascinating that killing of a leader your country dislikes is somehow unsporting, but invading countries and killing thousands of their citizens is somehow the proper channel of aggression. Shows where our priorities are, one leader is worth a few thousand of us.

  94. #94 |  Cynical in CA | 

    “Either launch the revolution already or go curl up in a ball and cry.”

    False dilemma.

  95. #95 |  Michael Chaney | 

    Re: #79

    Interesting idea, Nando. Like a system of checks and balances. Seems I’ve heard that term before somewhere. Anyway, let me know if you ever run across something like that.

  96. #96 |  Paul M. Jones » Blog Archive » Obama’s Assassination Plan — Tyranny? | 

    [...] via Tyranny | The Agitator. [...]

  97. #97 |  From the Homeland | The League of Ordinary Gentlemen | 

    [...] yesterday Radley Balko described Obama’s assassination orders as “tyranny.” I agree. It is tyranny. So what do I do? Tweet it? Something about it, even about the name, [...]

  98. #98 |  albatross | 

    Elemenope:

    You seem to be saying that the reason the president won’t use the power to have non-terrorist US citizens assassinated is because if it came out, he might have to resign or might be impeached or even deposed.

    Now, I think this is probably true for Glenn Greenwald, who is a relatively well-known figure. (I’m not 100% sure it’s true, but it’s plausible.) What happens when it’s Joe Smith, who isn’t a well-known figure, but who has managed to make a powerful enemy in the administration? What happens when it’s Jon Smith, who gets mistaken for Joe Smith the real badguy in some CIA drone missile version of a wrong-door raid? Will we ever find out that it has happened? If we do, will there be an outcry that costs the president his job? Or anyone his job? So far in the war on terror, we’ve seen all kinds of overt lawbreaking and almost nobody held accountable. Why would this be different?

    You are right that the president could use these scary powers in ways that would probably lead to some kind of a coup deposing him. To me, that’s a rather strong reason to not want these powers lying around. That power lying around could so easily be misused by, say, a president or high official who’s being blackmailed by someone, or who knows about a relatively low-profile journalist about to break some horribly embarrassing story to the world. And after that, the best case is that we get a Watergate-sized scandal that ends with the president resigning in disgrace. The worst case is that we get a coup, and then we spend the next couple decades finding out how we like having the military or spy agencies hold a de facto veto on political outcomes.

  99. #99 |  Nick T | 

    Elemenope, in the words of Ricky Gervais “You’re talking shit!” S
    orry we all have too high levels of cynicism for you. The point isn’t whether we all, in our non-cynical hearts, feel comfortable that no President would ever kill somoene like Glen Greenwald (a critic), or someone for arbitrary reasons, it’s that we can’t rule those things out (because there’s no basis to) and we don’t know that president’s won’t make mistakes or come up with weird rationalizations why killing someone might just save American lives under the most utilitarian and cold calculus possible. You completely avoided my hypotheticals above, tellingly. Do you really beleive a President would never kill someone who was, himself, completely innocent of any wrongdoing or bad intentions but possessed information that a President *believed* was harmful and put lives at risk? Julian Assange? if we “legalized” assassinations how long before Marc Thiessen and Charles Krauthammer called for him to be “taken out?”

    Moreover, your criticsm of our lack of optimism is (and of course you know this) a totally different discussion than the issue at hand. Should the President have the power to order people killed without having to demonstrate evidence to any independent source or the public? If yes then should any world leader NOT possess this power? Should every country be able to assassinate individuals in other countries as long as the original country believes or claims without having to provide any evidence that doing so makes them safer? Why do you trust public opinion? We just had a national debate where people justified and defended the torture of quite-likely-innocent people, and now we are in the midst of anti-muslim racism? You think the public can’t be lead by propaganda? What country do you live in?

    I’m sure you sleep wonderfully at night with all this trust for your fellow man, the rest of us will look at all of human history and remember that unchecked power, even assumed initially with good intentions, never goes unabused.

  100. #100 |  The Crossed Pond » Another Letter to Andrew Sullivan | 

    [...] this post, Andrew relays an article by Radley Balko in which he relates the news I posted below, and slaps the only word he can think of on it: [...]

  101. #101 |  Elemenope | 

    Look, as I said in my original post, my main objection to this conversation is the tendency to characterize this assassination power in strident and ultimately inaccurate terms. I agree it’s a bad power, a president shouldn’t have it, or if that’s unavoidable there must be judicial checks on its use (as I *also* said).

    But on the meta level, I am not objecting to a lack of optimism; heaven knows libertarians have plenty of reason to be pessimistic, at least in the broad strokes (though those who live in California will almost certainly soon be able to balm their worries with a legal toke; hurray, CA). Rather, I’m objecting to the rampant and stultifying cynicism that, if it were actually an accurate description of human nature would have made the whole American experiment in limited government a counterfactual absurdity *from the beginning*. And I’m sure that a very few of the folks here (looking at you Cynical in CA) might even cop to that being the natural endpoint of the outlook here presented. But for the rest, it just sounds absurdly strident, out of proportion to the actual level of seriousness of the situation.

  102. #102 |  Nick T | 

    “I am not objecting to a lack of optimism… I’m objecting to the rampant and stultifying cynicism.”

    Ohhhhhh, so much clearer now…….?

    So wait, you think this power is really bad, but the arguments against it that involve hypothetical assassinations of journalists or blatantly innocent/politically respectable person is just going too far? Sounds to me like you’re ok with the power as long as a judge reviews the info in secret. Yes?

    Also, to respond to your earlier point about political accountability, if this action is allowed to stand under the state secret doctrine, then the next 20 times the president decides to do this, the public will likely be totally unaware. And brave leakers will of course be….. prosecuted!!!

  103. #103 |  Scott | 

    Elemenope:
    The White House has successfully waged a campaign to make Americans despise Awlaki. I don’t remember whether Obama has done it, but previous Presidents have always maintained the right to tell lies to the press if it furthers national security interests.

    It doesn’t take much cynicism to see that, if Awlaki WERE entirely innocent of any crimes (which we don’t know one way or the other, because the evidence is classified), he still might be in exactly the place he is only for his extreme religious views.

    Now, if Awlaki dies in some violent way, do you think the President will volunteer that he ordered it? There’d be plenty of reason not to. Obama’s press secretary could just announce that some terrorist rival killed him, or that he blew himself up making a bomb, or whatever.

    In other words, this totally unreviewable power to assassinate people is also a totally unreviewable power to try to cover it up. It is probable this kind of thing has happened before, and it was illegal then, as well. No one was ever impeached for it. If the power is asserted, however, and not challenged, the likelihood of the whistle being blown will be that much lower.

    On a different point, a question for the lawyers:
    Why doesn’t the White House just try Awlaki in absentia?

  104. #104 |  Elemenope | 

    Also, to respond to your earlier point about political accountability, if this action is allowed to stand under the state secret doctrine, then the next 20 times the president decides to do this, the public will likely be totally unaware. And brave leakers will of course be….. prosecuted!!!

    Your second sentence flatly contradicts your first; either people will be unaware, or there will be leaks. And, duh, leaking classified info is a crime, so of course they would be prosecuted. This raises the opportunity cost of doing so such that we can be reasonably sure if there is a leak, there is a higher probability of it being about something of genuine public interest, rather than espionage or treason for its own sake.

  105. #105 |  Cynical in CA | 

    The only attempt to limit government in the United States was the Articles of Confederation. Once that government was overthrown in the bloodless coup of the Constitutional Convention, all limits were removed, as is obvious by the present situation, which, as Lysander Spooner put it so eloquently over 150 years ago, the Constitution either enabled or was powerless to prevent. There is your counterfactual absurdity, it was that way from the beginning, even before the beginning — it’s in the code of power — namely, power is corrupt and tends toward absolutes. The endgame, for the powers-that-be, was/is/always will be omnipotence.

    I’m not 100% sure what you’re arguing against, elemenope. This is a safe haven for libertarian-minded individuals to express their impotence against the tyranny of the State, constructively or otherwise. The truth is the truth. Most people don’t want to think about the fact that other human beings hold the arbitrary power of life-and-death over themselves, but that doesn’t change the fact. Given the actions of the Obama Administration, there is now no excuse for not knowing what has been true all along. Obama is big on education — well, he has given the American people a wonderful lesson in political science, that is, submit or die. Beautiful in its simplicity, dont you agree? I know from reading this blog that police forces all across the United States appreciate that simplicity and apply it daily in their work.

    Interestingly, that’s the same lesson George Washington, the first President of the U.S. under the Constitution (10 others preceded him under the Articles), taught to the Western Pennsylvania farmers who had crazy notions of self-ownership during the Whiskey Rebellion. Submit or die — and they submitted. Power, sovereignty never changes, only the rhetoric or the tone thereof. And I wouldn’t celebrate marijuana consumption becoming legal in California anytime soon — I absolutely guarantee that if the California Consitution is amended by popular vote in November, that either the State government will nullify it or the U.S. government will exercise its supreme sovereignty over the State, following Geo. Washington’s example.

    In short, what are we to make of Obama’s public declaration of absolute power? Why did his predecessors insist on maintaining a charade of limits on their power where none existed? What does this tell us about the status of the U.S. government? What predictions can individual U.S. citizens make regarding potential actions of the government?

    I believe that in blogging about this, Balko has observed a watershed moment, one of those “red-letter” dates in U.S. history — the day the tyranny could not be denied, whatever fairy-tales were erased forever. What that means in practice remains to be seen, but I believe that libertarians, especially the historically-literate, are justified in their alarm and no reaction can reasonably be called hyperbole.

  106. #106 |  weazoe | 

    Chuchundra, You seem to have fully absorbed the administration’s claim that this is a battlefield operation in a theater of war, but doesn’t that strike you as problematic? The “war on terror” isn’t anything like a traditional conflict between armies that ends with cessation of hostilities and a signed truce. Part of the problem is that the Bush and Obama administrations have declared the whole world to be the battlefield and the executive to be the sole determinant of who is a combatant. It’s a war with no limits in geography or duration. This latest claim of executive power is just another version of the Bush-Cheney doctrine that no laws constrain the President in his capacity as commander-in-chief, and that for as long as the “war on terror” lasts, that authority can be used however the President wants to use it.

  107. #107 |  Boyd Durkin | 

    True, Cynical. At some point, they remove their masks and let you see just how monstrous they are. Usually, they only do this after the point where you have any power to stop them.

    Now, why on Earth is it the responsibility of libertarians (and others who saw this all along) to save millions of people who created this monster? Especially since it will take great hardship and personal risk? It’s much easier to take our gold* (remember how they called us “crazy gold bugs”) and go somewhere else.

    *Gold is over $1300/ounce. But, that’s just another thing “you” laughed at us about. Surely though, this is just yet-another coincidence.

  108. #108 |  Boyd Durkin | 

    weazoe,
    “Taking seriously the proposition that you can declare war on an abstract noun will melt your brain.”
    –la Rana

  109. #109 |  Stormy Dragon | 

    What happens when it’s Jon Smith, who gets mistaken for Joe Smith the real badguy in some CIA drone missile version of a wrong-door raid?

    “It wasn’t my fault Buttle’s heart condition wasn’t mention in Tuttle’s file!”

  110. #110 |  JS | 

    Boyd Durkin “Now, why on Earth is it the responsibility of libertarians (and others who saw this all along) to save millions of people who created this monster? Especially since it will take great hardship and personal risk? It’s much easier to take our gold* (remember how they called us “crazy gold bugs”) and go somewhere else.”

    Totally agree, although it may become impossible to physically take gold or silver out of the country, not sure about the legality of it.

  111. #111 |  Elemenope | 

    I’m not 100% sure what you’re arguing against, elemenope. This is a safe haven for libertarian-minded individuals to express their impotence against the tyranny of the State, constructively or otherwise.

    As a former regular of Reason Hit & Run, I’m more than well aware of that. But nothing that has been said here necessarily follows from libertarianism itself. National defense is recognized as a legitimate aim of the state by most libertarians, not all libertarians agree with the utility or necessity of divided government (so the point that the judiciary shouldn’t have been cut out is not strictly a libertarian one), and so far as I know libertarianism is not necessarily (or even usually) consonant with pacifism. Really the only objection here is one regarding the rule of law, and that is not owned only by libertarians, but also by liberals and conservatives of conscience; one could as legitimately say that a person was being a bad liberal or bad conservative for embracing unilateral presidential action against the law, as they could for saying a person was a bad libertarian for holding so.

    The truth is the truth.

    The idea that there is such a thing as objective *political* truth is dangerous, as I imagine only libertarians could readily comprehend, and further the notion that libertarianism itself has privileged or special access to such truth if it does exist is laughable.

  112. #112 |  Elemenope | 

    And I wouldn’t celebrate marijuana consumption becoming legal in California anytime soon — I absolutely guarantee that if the California Consitution is amended by popular vote in November, that either the State government will nullify it or the U.S. government will exercise its supreme sovereignty over the State, following Geo. Washington’s example.

    We shall see if your cynicism is justified.

  113. #113 |  Nick T | 

    “And, duh, leaking classified info is a crime, so of course they would be prosecuted. This raises the opportunity cost of doing so such that we can be reasonably sure if there is a leak, there is a higher probability of it being about something of genuine public interest, rather than espionage or treason for its own sake.”

    Dumbest thing I’ve read in about 13 years. So criminalizing leaks makes us sure that only the good stuff gets leaked?

    Also you said that my sentences contradicted eachother. Look up the meaning fo the word “likely.”

  114. #114 |  Xenocles | 

    “No person shall… be deprived of life, liberty, or property, without due process of law….”

  115. #115 |  Julian | 

    If its so obvious that the people on this list are providing “aid and comfort” to the enemy, then why can’t the admin present that evidence to a court, according to the tenets the constitution lays out for prosecuting treason? The whole reason we have trials and courts and evidentiary standards is to prevent those in authority from just making up charges and levying punishments; why should what Obama is doing be given a pass? Greenwald is not blowing this out of proportion, and this list is not a small thing; if the government can execute one man on the claim, not even the charge which at least is presented before a court but just the claim, that he is a terrorist then they can do the same to anyone.

  116. #116 |  Julian | 

    As to those saying no president will ever use this power on people who don’t deserve it, I ask you this; what evidence have you seen that proves Awlaki deserves to die?

  117. #117 |  Gerald A | 

    Keep going guys, haven’t laughed this hard in ages. Jimmy Carter would be proud.

  118. #118 |  Elemenope | 

    So criminalizing leaks makes us sure that only the good stuff gets leaked?

    That is the practical effect, whether it is the intended effect or not. Simple behavioral economics. And seriously, if that’s the dumbest thing you’ve read in thirteen years you either have very rarefied reading tastes or are totally insensible to rational argumentation.

    Also you said that my sentences contradicted eachother. Look up the meaning fo the word “likely.”

    Weasel-wording. Either you are concerned that the program and its acts would remain unrevealed, or you are concerned for those who chose to reveal it. One, and only one, of those two possibilities can occur. And the notion that it is “likely” that it would remain unrevealed neglects both recent history on the subject of government leaks, as well as the effects of the gravity of the subject at hand in inducing them.
    —————–

    I ask you this; what evidence have you seen that proves Awlaki deserves to die?

    What on Earth does deserving have to do with national security? I imagine most people killed by governments don’t deserve to die by any reasonable ethical metric; in many parts of the world the US is more or less legitimately viewed as an imperial and oppressive force. A person who lives in one of those places may conceive of striking against the US as a worthy undertaking, and I see few if any criteria that would rationally rebut such a subjective perception, certainly none that would be persuasive for the subject. But does it then follow that because a guy is a hero to his own (in this case, adopted) people when he strikes at the Great Satan that the US should not then take steps to defend itself? Such a position cuts against the very purpose of the existence of government in the first place: to provide for a common defense.

    Measuring the “deserving” of a death is measuring in the wrong way. Very few, if any, deaths are ever deserved.

  119. #119 |  Elroy | 

    I would imagine that US citizens taking up arms against the US is not completely new. During WWII there must have been German Americans, Italian Americans and Japanese Americans who fought for the other side. Probably some of these soldiers were killed by the US.

    Probably what complicates things is the way we wage war these days. We don’t declare all out war against sovereign nations, we wage police actions. Wearing a German uniform in WWII was pretty cut a dried and easy to understand. Are we at war with whatever orginizations this lecturer was associated with? I don’t know.Not that we should wage wars. We should probably keep the military home and only send it when it is absolutely necessary to kill people and break their stuff.

  120. #120 |  Elemenope | 

    I would imagine that US citizens taking up arms against the US is not completely new. During WWII there must have been German Americans, Italian Americans and Japanese Americans who fought for the other side. Probably some of these soldiers were killed by the US.

    Certainly there were. I think the sticking point is that they weren’t personally targeted, but were killed along with other combatants on their side in the course of normal warfare.

    We don’t declare all out war against sovereign nations, we wage police actions.

    I think at the bottom of everything this is the real practical problem. The paradigm of conflict under which we’ve constructed all the rules of war has basically become obsolete (pretty much without warning) and we are at a loss to figure out what meets the requirements of a common defense in the new paradigm without breaching the rule of law.

  121. #121 |  André | 

    I have reacted by posting this link to my facebook page and changing all the instances of the word “Obama” to “Bush”, because I have too many liberal friends on facebook.

  122. #122 |  Bob Stamos | 

    why do you people have to be filled with so much festering crazy?

  123. #123 |  JOR | 

    #117

    I agree that ‘deserving to die’ is the wrong ethical metric (I’m not sure anyone ever really deserves to die, even when killing them is justified). But if the US is in the right in killing someone, it’s because that person is in the wrong in doing whatever it is the US is trying to stop by killing him (and vice versa; if the person is really being reasonable and ethical in his efforts to kill US military personnell and collaborators, it’s because those people are doing or enabling something unjust).

    Or maybe it’s all a matter of subjective opinion, but then talking about what “should” be done is not only practically, but intellectually bankrupt.

    N.B. all forms of “practical” or “pragmatic” measures of good, benefit, purpose, or whatever, are parasitic on some notion of moral good; if we can dismiss ethical reasoning as merely subjective, then it’s just not the case that the purpose of the US is to defend itself, or its subjects, or whatever; its purpose is whatever its constituent members successfully do with it, and there’s no particular reason why any one else (e.g. you or I) should care about or sympathize with them, any more than we care about or sympathize with their enemies. And anyway, “national security” mostly amounts to nothing more than enabling the schemes of some corporate-political parasites, the safety and glorification of their mercenaries (who, when they come home in one piece, have a disturbing tendency to hire on as cops so they can go on brutalizing people for a living), and the gratification of their think-tank wonk apologists. Even from the point of view of pure animal self-interest, there’s not much reason to give a shit about national security, and plenty of reason to not want politicians to enjoy precedents in favor of completely unaccountable assassination powers. (Or in other words, Hobbes was wrong, especially if he was right).

  124. #124 |  dahni | 

    Anyone that declares war on me and mine is my enemy, and I will kill first if I have the chance. Why wait for them to kill someone I love? Get serious, these people are murderers. You can take them into your house if you want, but I’d rather get rid of them.

  125. #125 |  Nick T. | 

    Elemenope, please explain how one can’t be concerned that both these incidence will mostly go unknown and unreported, and tha if and when they are leaked in the 1 out of 10 circumstances then the leakers will be prosecuted. Go ahead.

    And please explain to me the history of what information has been leaked versus what informaton has not been leaked? Do you have evidence (or are you even of the belief) that the released video is the only one depicting US troops callousy gunning down unarmed civilians and journalists? How many videos similar to that went unleaked? 9 years of Afghanistan conflict before all that information comes out via Wikileaks?

    You’re the one using “weasel-words.” You side-stepped my point once again, and the simple fact is that this power is almost certain to be used in ways that the public never learns about if this argument flies with the courts, do you honestly disput that? And the times it *does* get leaked will simply increase the chances that the next several “abuses” go unreported.

    Your original point was that we don’t have to worry too much about Presidents using this on blatantly innocent people because of public opinion. This argument is bone-headed an so you’re focusing on some absurd idea that one can’t be concerned about secrecy AND proseuction of leakers (wow, felt weird to type – so silly) and you’ve of course avoided responding to me, albatross’ and Scott’s arguments above. You’ve been engagd on a point you brought up an you have not responded. Telliiiiiing!

  126. #126 |  Nick T. | 

    [Sorry meant to include after "'abuses' go unreported": "because the leakers will be prosecuted."]

  127. #127 |  Cynical in CA | 

    #111 | Elemenope — “But nothing that has been said here necessarily follows from libertarianism itself.”

    True. My lengthy post was more an expose of the true nature of the State itself, which is independent of libertarianism, though often discovered by individuals with a propensity toward libertarianism.

    “National defense is recognized as a legitimate aim of the state by most libertarians, not all libertarians agree with the utility or necessity of divided government (so the point that the judiciary shouldn’t have been cut out is not strictly a libertarian one), and so far as I know libertarianism is not necessarily (or even usually) consonant with pacifism.”

    National defense is an Orwellian term meant as a substitute for State defense. The State is the institution and it goes without saying that the State would consider its own defense logical and necessary. As a member of the libertarian class (genus Anarchist, species Radical Individualist), I don’t argue against truth — I agree. I have mentioned one Mencius Moldbug — he is a perfect example of what you describe — an anarchist thinker who recognizes the inevitability of Statism and recommends an omnipotent monarch as executive accountable to a board of directors as the most stable environment for human freedom to flourish. I still view pacifism as the only moral (non-violent, non-aggressive) course, but I understand the nature of self-defense makes pacifism impractical among humans.

    “Really the only objection here is one regarding the rule of law…”

    This has been dissected over and over again — the rule of law is a myth. There is only the rule of men. Laws must be interpreted and enforced by men. Words on paper have no meaning without the interpretations of men. The only question of importance to the State is which men will do the interpreting. The upholding of unilateral executive power is apolitical in the “party” sense — the only question is moral, so I agree with you there.

    “The truth is the truth.” — CinCA

    “The idea that there is such a thing as objective *political* truth is dangerous …”

    That’s not what I wrote. I was not referring to “political” truth, I was describing the true nature of the State. There is no denying what I wrote was true. To argue to the contrary demonstrates a state of brainwashing or a complete inability to comprehend.

    This is what I wrote: “Most people don’t want to think about the fact that other human beings hold the arbitrary power of life-and-death over themselves, but that doesn’t change the fact.”

    The State is simply one set of human beings holding the arbitrary power of life-and death over other human beings. It is that simple and it is irrefutable.

    “… the notion that libertarianism itself has privileged or special access to such truth if it does exist is laughable.”

    Wet sidewalks don’t cause rain, elemenope. Those that see the system for what it is sometimes fall under the classification “libertarian.” I would postulate that most of those who do see clearly are libertarian, but I’m sure most Statists understand the truth and cynically use it to their advantage within the State system. Interestingly, the most effective Statist I could imagine is a radical anarchist who has thoroughly studied the “enemy” the State and then turns to the dark side with all his heart and energy.

    All in all, an interesting discussion, thanks for the back-and-forth. You take a lot of lumps and keep on coming, elemenope, and for that I admire you.

  128. #128 |  Cynical in CA | 

    #114 | Xenocles — “No person shall… be deprived of life, liberty, or property, without due process of law….”

    That’s cute, Xenocles. I got a chuckle out of that ….

  129. #129 |  Cynical in CA | 

    #112 | Elemenope — “We shall see if your cynicism is justified.”

    Do I smell a bet? If so, it’s one I’d be glad to lose.

  130. #130 |  Instapundit » Blog Archive » THEY TOLD ME IF I VOTED FOR JOHN MCCAIN WE’D SEE extrajudicial killing of Americans at a President’s… | 

    [...] TOLD ME IF I VOTED FOR JOHN MCCAIN WE’D SEE extrajudicial killing of Americans at a President’s whim, without any fuss. And they were [...]

  131. #131 |  Joe | 

    Okay, if the case for targetting and killing Awalki is so compelling, why can’t due process be exercised for doing it? No judical or congressional review of the executive branch’s decision? State secrets would be compromised from doing that.

    This is enought to make you cynical anywhere.

  132. #132 |  Dave | 

    The rightness of killing someone, taking their property or violating any other of their personal rights have nothing to do with their citizenship. If someone is making war on the United States he is a fair target. The only interesting question is how much aid and comfort his father may give him before he, too, becomes a fair target.

  133. #133 |  LarryD | 

    Awalki is part of an enemy command structure, an enemy that is actively at war with the United States. That makes him a legitimate military target. That he is a US citizen does not give him special dispensation.

    Because finding him requires intelligence information, which, if exposed, could compromise the methods by which it was gathered or some of the persons involved, there is a legitimate role for a state secrets claim.

    This is all in pursuit of war, the criminal justice paradigm simply does not apply. If Awalki were captured, his US citizenship would make him liable to a charge of capital treason, then the criminal justice paradigm would apply.

  134. #134 |  Tom Perkins | 

    “There are no mitigating factors, here. Obama is arguing the executive has the power to execute American citizens without a trial, without even so much as an airing of the charges against them, and that it can do so in complete secrecy, with no oversight from any court, and that the families of the executed have no legal recourse.”

    It the perfectly constitutional, usual, historical, and customary practice for persons making war on us to be killed without notice and by what means are expeditious, without any recourse being made to the civilian courts. It is not more horrifying than war, and so long as the means used are within the scope of the rules of war, there should be no involvement of the civilian courts, and then only if the military courts martial are stripped of the authority to hear the case, and the civil courts empowered differently to be able. If Congress wishes to revoke the authority for the executive to prosecute against war those originating the attacks taking place on 2001/09/11, and their adherents, it can do so. If it desires to undertake more specific oversight of the prosecution of that war, that is the proper body to undertake it, and not the courts.

  135. #135 |  Tom Perkins | 

    @ #1, Aresen, who wrote:

    “l’d have said Star Chamber, but Tyranny will do.

    If the courts side with the government on this one, I predict that it will be applied within the boundaries of the US within 50 years.”

    Of course, Aresen must then agree that every Union soldier must have been individually accompanied by a judge and jury who must give a verdict of guilty against each Confederate, before each pull of the trigger. We were not more at war then than now, and were certainly then within the boundaries of the US.

    The ludicrousness of the argument advanced by Balko here is I think clear to every honest student of history and of the constitution. The coherent argument he might make is that the penultimately superior legislative branch is failing in its oversight duties–I believe the only evidence for this is that they aren’t doing what Balko thinks they should.

    If they are so failing, it still creates no new powers for the civilian courts to adjudicate the prosecution of a war.

  136. #136 |  qwints | 

    Tom, Anwar Al-Awlaki is not “making war on us.” No one is arguing that US soldiers don’t have the right to shoot anyone who attacks them without civilian judicial oversight. Courts martial are the proper vehicle for determining if a soldier violated the UCMJ, and they are where we should decide if a particular killing by a soldier was illegal after the fact. That’s not what this killing would be. Assassination is not a legal tactic during wartime, especially not of civilians whose main ‘crime’ is speech.

    The main problem with your position is that it allows the US executive to attack anyone, anywhere without oversight as long as it asserts that their target is ‘making war’ on the US. While this may result in bad people or people who legitimately threaten the US being killed, there is absolutely no way for anyone to determine when the executive is abusing its power. Balko’s reaction is similar to many who simply cannot believe that they have to defend the position that the president can’t kill anyone he likes.

    Think about it this way, many people on this site oppose ‘may issue’ instead of ‘shall issue’ laws that allow law enforcement officers to arbitrarily deny someone the right to carry a concealed firearm. Everyone would, I hope, agree that neither the president nor congress could criminalize criticizing the United States. How could anyone possibly argue for the executive having an unreviewable license to kill?

    That’s what it is. You say that congress has authorized the use of military force against “those originating the attacks taking place on 2001/09/11, and their adherents.” The AUMF of 9/11/18 specifically authorizes force against those who “planned, authorized, committed, or aided” the 9/11 terrorist attacks and harbored those who did. But Congress doesn’t have the power to give the power a license to kill.

  137. #137 |  Tom Perkins | 

    Tom, Anwar Al-Awlaki is not “making war on us.”

    How so? Is a clerk in the Abwehr, ca, 1943, not a valid target? Why not a sutler keeping company with rebel officers in Lee’s baggage train?

    Perhaps you can show he is not aiding and abetting the efforts of the enemy?

  138. #138 |  Tom Perkins | 

    “But Congress doesn’t have the power to give the power a license to kill.”

    That is exactly what a declaration of war such as the AUMF is.

    “Assassination is not a legal tactic during wartime, especially not of civilians whose main ‘crime’ is speech. ”

    Assassination is exactly a legal and morally above board tactic in wartime, or do you propose the arrest for murder of every successful sniper? On the obverse, where is the evidence he is in fact a civilian? Are you aware that no lack of uniform distinguishes him from any other AlQaeda aligned target? An enemy chaplain exhorting his flock to kill us does not stop being a legal target because they take off–or fail to put on–a uniform.

    “The main problem with your position is that it allows the US executive to attack anyone, anywhere without oversight as long as it asserts that their target is ‘making war’ on the US. ”

    It is for the legislature and not the civil courts to oversee such, and I would welcome their oversight.

    “How could anyone possibly argue for the executive having an unreviewable license to kill?

    That’s what it is.”

    You keep on saying that like its true. I should presume you won’t stop lying anytime soon.

  139. #139 |  Boyd Durkin | 

    What on Earth does deserving have to do with national security? I imagine most people killed by governments don’t deserve to die by any reasonable ethical metric; in many parts of the world the US is more or less legitimately viewed as an imperial and oppressive force.

    Agreed. This is how state agents think.

    Most nations, by their actions, don’t deserve to be defended or secure. But, that is my opinion and probably not an ethical metric that is matched by the majority of patriots. I just think that if your uniforms have skulls on them, or your President is assasinating citizens without any questions, you might be the bad guys.

    Such a position cuts against the very purpose of the existence of government in the first place: to provide for a common defense.

    I’m not much for moral stands, but I think it’d be hard to produce a credible moral stand that doesn’t address the morality of actions by all parties involved. That tends to be lacking whenever “dealing with terrorism” is addressed. You don’t get to cry “legit purpose” after engaging in “non-legit actions” that cause the crisis.

    As for “common defense”, it is actually “defense of the state” only as the state will sacrifice each and every citizen to protect itself. Luckily, some other tyrant usually steps in before all the citizens get whacked.

  140. #140 |  Boyd Durkin | 

    You keep on saying that like its true. I should presume you won’t stop lying anytime soon.

    Tom, you really have to back this up now. Explain.

    PS: “Wartime”? Can someone show me the recent declaration of war? Why are we pedantic on some words and not others?

  141. #141 |  Tom Perkins | 

    It is obvious. qwints was saying I did not want there to be oversight of the war effort, of the effort to kill Anwar Al-Awlaki, when I had just said the legislative branch was where oversight should be found. Perhaps he was merely unobservant, but I do not think anyone able to type with any coherence could also be so directly incapable. I think he chose instead to assert something he knew wasn’t true.

    “PS: “Wartime”? Can someone show me the recent declaration of war? Why are we pedantic on some words and not others?”

    You may yourself have seen reference to it immediately above, it is referred to as the AUMF. Where then, is the pedantry, if it is not yours for asserting the AUMF does not suffice?

  142. #142 |  JS | 

    If I’m not mistaken and wasn’t too lazy to look it up I think they claimed Awlaki was the mastermind behind that dude that blew up his underwear. That doesn’t make him enemy combatant imo, since we aren’t technically at war, it just makes him subject to the same laws that any criminal who did something like that would be, which kind of means that he shouldn’t be killed by the CIA but a warrant put out for him. So far other than the underwear bomber what else did Awlaki do to “make war” on the US?

  143. #143 |  Tom Perkins | 

    “since we aren’t technically at war”

    How not?

    “So far other than the underwear bomber what else did Awlaki do to “make war” on the US?”

    How does that not count?

  144. #144 |  Cynical in CA | 

    It’s not going to be popular, but Tom Perkins is correct. Under the U.S. Constitution — you know, that document that ostensibly limits the power of the central government but somehow never gets interpreted that way — it falls to the legislature (and the judiciary to a lesser degree) to authorize and oversee the activities of the executive.

    However, since the executive has the authority to issue executive orders, he/she can supersede the U.S. Congress, whose recourse would then be impeachment/conviction.

    Good luck with that!!!!

    The current U.S. Congress is as effective at restraining and supervising the executive as the Reichstag was in 1930s Germany.

    9/11 = Reichstag Fire*
    USA PATRIOT ACT/AUMF = Enabling Act

    The system was set up this way intentionally — ha ha, the joke’s on all of us, the American Revolution has come full circle. One of history’s cruelest jokes — this land would have been better off with a king the whole time. At the very least, slavery would have ended without a shot being fired, as it did in the rest of the British Empire.

    All hail Emperor Obama!

    * The event serves as the equivalent without being necessary to prove government plotting/execution.

  145. #145 |  Tom Perkins | 

    Hello Cynical in CA, you wrote.

    “However, since the executive has the authority to issue executive orders, he/she can supersede the U.S. Congress, whose recourse would then be impeachment/conviction.”

    FWIW, Executive orders do not supercede any act of Congress, and they overturn no laws, they are voided by a mere injunction. They have no legal force other than to be instructions to persons employed in the executive branch.

    I find the rest of your post is more entertaining than informative.

  146. #146 |  JS | 

    But doesn’t there have to be a declaration of war from the congress in order for it to legally be a war? I know they ignore and of course its a de facto war but it’s not technically legal.

    Another thought-if all Awlaki did was that underwear bomber thing then what was our normal response to say, airplane hijackers? Did we use the military or the police? I think both sides have argued well and I don’t pretend to know but I’m kind of leaning towards this being a matter for the FBI rather than the military or CIA.

  147. #147 |  Cynical in CA | 

    #136 | Tom Perkins — “since we aren’t technically at war” — “How not?”

    C’mon Tom, you’re making some solid arguments. Don’t go spoiling it. The AUMF is not a classic declaration of war. It was an abdication of the specific power delegated to Congress by the Constitution for exclusive war decision-making, albeit a continuation of policy begun under Truman. If you want to call it “the new normal” or the “Constitutional Coup of 1950″ and argue that now and forevermore the executive has sole decision-making authority until the AUMF is repealed, fine. But it is a valid, if quaint, argument to interpret the Constitution as reserving war-making authority in Congress.

    All that aside, what do you see in your crystal ball Tom? Where is all this headed?

  148. #148 |  Cynical in CA | 

    #138 | Tom Perkins — “I find the rest of your post is more entertaining than informative.”

    Thanks Tom! Which do you prefer, entertainment or information? Sometimes informative posts wind up a bit dry and dull. I will try to tailor my future comments according to your predilections.

  149. #149 |  Boyd Durkin | 

    That’s the point, JS. And Cynical beat me to the punch with his post above. AUMF, not a declaration of war. But, let’s expand the definition when it serves the US and shrink it when it doesn’t.

    And THAT is the pedantry of which I spoke.

  150. #150 |  Tom Perkins | 

    “The AUMF is not a classic declaration of war.”

    The classic declaration of war is not required by the constitution, however traditional it has been for large military efforts. It is sufficient under the constitution for Congress to say, “go get’em, we’ll pick up the tab”. And they have. The phrase, “The United States of America delcares war on…”, is not found in the constitution, and it so it is not required.

  151. #151 |  Cynical in CA | 

    “Executive orders do not supercede any act of Congress, and they overturn no laws, they are voided by a mere injunction. They have no legal force other than to be instructions to persons employed in the executive branch.”

    Granted, but this raises an interesting historical question, one I might research today. When Roosevelt issued his executive order depriving Japanese-American U.S. citizens of liberty and property and incarcerated them en masse in concentration camps in 1942, all it would have taken to reverse that policy would have been an injunction from a federal court? I am curious if anyone sympathetic to the internees ever petitioned a court and what the result was.

  152. #152 |  Cynical in CA | 

    #139 | JS — ” Did we use the military or the police? I think both sides have argued well and I don’t pretend to know but I’m kind of leaning towards this being a matter for the FBI rather than the military or CIA.”

    Ding ding ding. Terrorism is a federal crime, has been forever. The original WTC bombers of ’93 were prosecuted in federal court. Read Future of Freedom Foundation’s Jacob Hornberger for essay after essay regarding the dual-justice system now in place regarding terrorists/enemy combatants.

  153. #153 |  qwints | 

    Tom, I resent you calling me a liar. I stated that Obama was claiming an unreviewable license to kill. Congress oversees, the judiciary reviews. I apologize if I was unclear and implied that you didn’t recognize Congress’s power to oversee, revoke authority or impeach. Unless a citizen has the ability to challenge the executive’s actions in court, it is unreviewable. The justice department argued that courts cannot review assassination orders. As such, the president could kill anyone he declares to be covered under the AUMF without judicial review. That’s a problem even if congress has the power to repeal the AUMF. Congress simply does not have the power to enable the executive to ignore due process by giving it a license to kill.

    (The AUMF, by the way, only covers the 9/11 attacks. It is not a declaration of war against “Terror” or “terrorrists.” I’m not aware of any evidence that Al-Awlaki perpetrated 9/11 or aided those who did. If not, then he would not be covered by the 9/18/01 AUMF.)

    On the issue of assassination, “every successful sniper” is not an assassin. By assassination, I mean the targeted killing of an individual outside of battlefield conditions. Again, there’s nothing wrong with a sniper shooting someone attacking U.S. troops or shooting a target during open combat. But we’re not talking about a uniformed sniper on a battlefield, we’re talking about an unmanned predator drone (probably) operated by a civilian working for the CIA targeting a civilian in a country in which we’re not at war. You’re damn right that person should be arrested and tried. As should Al-Awlaki if he planned, aided or committed the murder of civilians.

  154. #154 |  qwints | 

    @Cynical, someone did and it went to the Supreme Court. See http://en.wikipedia.org/wiki/Korematsu_v._United_States.

  155. #155 |  Cynical in CA | 

    Thanks qwints, I loves the intertubes!

  156. #156 |  Tom Perkins | 

    “Tom, I resent you calling me a liar.”

    I resent you carelessly misrepresenting me, we’re even.

    And no, Congress has the authority to oversee and to review the acts of the executive branch. With respect to the prosecution of a war, the general civil courts have no such authority. Contrary to the constitution and historical practice, the Supreme Court might find differently, but the judicial review of the situation begins and ends with the Supreme Court as a matter of original jurisdiction, no lower courts are so empowered–id the suit is brought to them, they should refuse to hear it or buck it straight up the chain.

    The Supreme Court might find differently on the object of the question as well as it’s proper venue, but it cannot do so without implicitly naming as a murderer every sniper–and for that matter a soldier or member of the unorganized militia–who deliberately draws a bead on any specific enemy personage.

  157. #157 |  Cynical in CA | 

    Justice Robert Jackson’s dissent in Korematsu: “In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal… Courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.”

    “A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle … The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”

    A great thinker, this Jackson. Immortal words.

    Shorter Jackson, “Bye bye, limited government. We hardly knew ye.”

    [BTW, no injunction was ever issued against E.O. 9066. Imagine the howls of "traitor!"]

  158. #158 |  qwints | 

    Tom, the 5th amendment says that “no person shall … be deprived of life, liberty, or property, without due process of law.” Congress cannot avoid this prohibition through an open ended AUMF. Your position seems to suggest that the executive can kill anyone it determines falls under an AUMF without judicial review. That is tyranny.

    I acknowledge that there are often times when the due process of law is a military court reviewing a uniformed soldier’s actions. A uniformed soldier can legally shoot an enemy soldier and everyone has the right of self defense. There is a difference between combat and non-combat and between combatants and non-combatants. Al-Alwaki is not armed and attacking the U.S. He may not even be covered by the AUMF. The US should not be able to kill him because it doesn’t like what he says.

    Last question: If Al-Awlaki had nothing to do with 9/11 but was planning another terrorist attack, would the executive be legally authorized to attack him? If so, how?

  159. #159 |  Tom Perkins | 

    “Terrorism is a federal crime, has been forever.”

    It hasn’t been called such, but yes. It has also under different names been an act of war and a crime of war, and until the AUMF is repealed, it will be quite properly–legally and ethically–be treated as such and dealt with in a warlike fashion.

    “The AUMF, by the way, only covers the 9/11 attacks.”

    It covers those who adhere contiguously to those who specifically carried out those attacks. To assert as I believe you have that the AUMF does not apply to someone who joined AlQaeda or an aligned group on 9/12 is simply fatuous.

    “On the issue of assassination, “every successful sniper” is not an assassin.”

    By the definition of it you are applying as protecting Al-Awlaki, they certainly are. There is no FEBA where the rules are different. If the enemy were abiding by the rules of war there would be, but they aren’t. The rules of war are largely reciprocal, and as a practical matter that is a best case. If the enemy doesn’t follow them, we don’t have to.

    “there’s nothing wrong with a sniper shooting someone attacking U.S. troops or shooting a target during open combat.”

    There would have been nothing wrong with a paratrooper in WWII dropping an off duty and civilian garbed Guderian in his garden–I’m assuming for the sake of argument he might have ever been in a garden he had post 1939, which I doubt. It makes no difference that the current enemy rarely if ever puts on a uniform, and there is no difference in character, only in mechanism, for a US aligned person to do it with a missile armed drone as opposed to a rifle.

    “operated by a civilian working for the CIA targeting a civilian in a country in which we’re not at war”

    If you can show no badge of allegiance is clearly associated with such a CIA employee, and if you can show that person is not a member of the unorganized militia, and if you can show the person being targeted is not such a person as were at war with, then you might be making a good argument. Other than the Taliban post 9/11, and the Iraqi’s post GW1–that was an armistice, not a peace treaty–we haven’t been at war with any nations, we’re at war with the people who thought up 9/11 beforehand, and those who adhere to them and want to do it again there after.

    If a nation objects to our making war on such people within their borders, they need to expel those people.

  160. #160 |  Nick T | 

    Tom,

    Please aknowledge the crushing dishonesty in stating thatthe argument against this power asserted (which would include the authoirty to assassinate this man while he sleeps inside of one of our allied nations) necessarily is an argument for requiring soldiers fighting other soldiers on a battlefield who are actively attacking to receive judicial permission.

    You can’t claim to a) know what you’re talking about and b) be an authority on honesty while you stand behind that argument.

    Also, the AUMF is not a declaration war. In so far as it declares anything, it declares targetting the people responsible for 9/11 or nations that harbor them. Try reading things. So let’s say Congress in WWII only declared war on Germany and Italy, could American spies kill a Japanese spy while he slept in a neutral country? Does it matter that the President targets the people IN the actual declaration (of NOT war) or does any declaration against anyone authorize unilateral assassinations? Or can we just “all agree” that Japan was clearly a threat and this guy was clearly a spy so… meh.

    These are really important questions if we want to live in a society that limits government power and was foudned out of the historical abuses of a King with limitless authority.

  161. #161 |  Cynical in CA | 

    From Wikipedia:

    http://en.wikipedia.org/wiki/Executive_order_(United_States)

    “To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order (Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that Executive Order 10340 from President Harry S. Truman placing all steel mills in the country under federal control), and a 1996 order issued by President Clinton that attempted to prevent the U.S. government from contracting with organizations that had strikebreakers on the payroll.

    Congress may overturn an executive order by passing legislation in conflict with it or by refusing to approve funding to enforce it. In the former, the president retains the power to veto such a decision; however, the Congress may override a veto with a two-thirds majority to end an executive order. It has been argued that a Congressional override of an executive order is a nearly impossible event due to the supermajority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism.”

    The only recent case I can find regarding an injunction overturning an executive order is in stem-cell research, and the Obama Administration is appealing the injunction.

    http://www.lifenews.com/bio3169.html

    Very well, I am convinced — though overturning an executive order rises close to divine intervention, and in military matters, is unimpeachable.

  162. #162 |  Nick T | 

    Shorter Tom: We are sooo at war!! The laws of war? Oh they tooootally don’t apply. Yay!!

  163. #163 |  Nick T | 

    Shorter Tom: Any country can kill any person in another country! Second country just shouldn’t let those people exist in their country! And if that second country asks for evidence of why that person shouldn’t exist in their country, the first country can be all like “secret bitch! just trust us.” Yay!!

  164. #164 |  Cynical in CA | 

    #152 | Tom Perkins
    “Terrorism is a federal crime, has been forever.” — CinCA

    “It hasn’t been called such, but yes.” — TP

    Why not a simple “yes?” You perform the same verbal gymnastics you accuse others of engaging in, Tom.

    Here’s the applicable section of US Code regarding “international terrorism.” I will leave the readers to decide if it is a federal crime.

    http://www.law.cornell.edu/uscode/18/usc_sec_18_00002331—-000-.html

    Seems to me the US Code is quite explicit in this regard.

    There are parallel judicial systems in the US now. This is completely inconsistent with the “rule of law,” if that’s your bag.

  165. #165 |  Tom Perkins | 

    “Where is all this headed?”

    I think the war will not come to a successful close until all persons in Islam who are inclined to promulgate the traditional jihad–which is not a spiritual crusade, it’s cutting off heads–or those who tolerate the same, are made dead or are made to effectually repudiate their opinion.

    When a Bhuddist, a Wiccan, a Mormon, a Catholic, a Shinto priest or an atheist, et al, are free to stand outside the Great Mosque 1st Amendment style and hold forth on the relative superiority of their faith, with vendors with dirty water dog carts slinging pork keilbasa and beer to whomever want them, when those conditions are obtained, we’ll be done. If it happens under American guns or without any I don’t care.

    Through their export of Wahhabism, the Saudis have voided the westphalian integrity of their nation. The war should end where it started 1400 odd years ago.

  166. #166 |  qwints | 

    Tom, here’s the language of the AUMF:

    “(a) IN GENERAL- That the President is authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html

    I am arguing that it would be unconstitutional for the president to be able to kill anyone he says is covered by this as a violation of the 5th amendment’s due process clause. Would you agree that the Congress could not authorize the president to use any and all necessary force against anyone he determined was a threat to the United States?

  167. #167 |  Tom Perkins | 

    “Why not a simple “yes?” ”

    Because it wasn’t always called terrorism. That’s not gymnastics, AFAIK, it’s the literal truth.

    Something Nick T must be unacquainted with.

    “There are parallel judicial systems in the US now. This is completely inconsistent with the “rule of law,” if that’s your bag.”

    There have been such parallel judicial systems since the country was founded, and strangely, the inconsistency was never noted until some people began to intrude the civil law into the military sphere. That because there is no inconsistency until the civil judiciary leaves its proper bounds.

  168. #168 |  Tom Perkins | 

    The 5th amendment applies to the actions of civil law enforcement and the civil judiciary, or else in fact every soldier shooting a gun would have had to have the civil judiciary weigh in ahead of time before they pulled the trigger. There is no trace of any evidence for the notion the 4th, 5th or any other amendment applies to the enemy in time of war.

  169. #169 |  Tom Perkins | 

    “Would you agree that the Congress could not authorize the president to use any and all necessary force against anyone he determined was a threat to the United States?”

    The Congress can authorize just that with respect to an enemy in time of war, which is what the authorization to use military force–aka a declaration of war–is. It is up to us to hold the Congress to account for it’s oversight of a war effort. The civil judiciary and its a priori restrictions on government civil law enforcement actions do not figure into the issue.

  170. #170 |  JS | 

    Tom “I think the war will not come to a successful close until all persons in Islam who are inclined to promulgate the traditional jihad–which is not a spiritual crusade, it’s cutting off heads–or those who tolerate the same, are made dead or are made to effectually repudiate their opinion.”

    Then you’d have to be for an all out genocide of Muslims (1.5 billion people, about 23% of the world’s population) because there’s no way the entire religion of Islam is going to repudiate anything.

  171. #171 |  Tom Perkins | 

    @ JS, they are not all Wahhabists, and far from it. Those who are not have yet little courage or reason for courage, to discourage those who are.

  172. #172 |  Cynical in CA | 

    #160 | Tom Perkins — “Because it wasn’t always called terrorism.”

    Oh, my misunderstanding. I thought we were discussing the “federal crime” appellation — although, terrorism is as terrorism does, and terrorism by any other name is still terrorism. But fair enough.

    “There have been such parallel judicial systems since the country was founded, and strangely, the inconsistency was never noted until some people began to intrude the civil law into the military sphere. That because there is no inconsistency until the civil judiciary leaves its proper bounds.”

    Or vice-versa, one might argue; that is, it is the military that has left its proper bounds– or are there no proper bounds for the military? Am I getting close now?

    Military justice is to justice as military music is to music. Nice place to live where the boundaries between the two are so blurry as to be non-existent.

  173. #173 |  Cynical in CA | 

    #162 | Tom Perkins — “The civil judiciary and its a priori restrictions on government civil law enforcement actions do not figure into the issue.”

    One might argue that there are no meaningful a priori restrictions on government civil law enforcement actions anymore, especially when this blog is daily reading, but that’s beside the point.

    “Those that quote the Constitution to defend their freedom are like a dog bringing its leash to its master.” — Butler Shaffer

  174. #174 |  Tom Perkins | 

    “that is, it is the military that has left its proper bounds”

    How so? When has the enemy in time of war had recourse to the civil courts? When guilt is not abjectly obvious a drumhead court martial–one which frequently dispensed execution as punishment–was the usual venue for the trial of a captured non-traditional combatant, and that was usually preceded by fusillade unadjudicated by the civil courts.

    To go by the domestic crime and domestic territory analogy, when the object of the fusillade was a confederate fort, the means of the fusillade cannon, and the potential victim of the violence a, say, citizen of Wisconsin who’d taken up with the enemy–then no one on the right side of either the constitution, history, or customary military conduct would have had any objections and certainly not have required civil judicial review beforehand.

    I submit yours is an assertion without evidence.

  175. #175 |  Tom Perkins | 

    “One might argue that there are no meaningful a priori restrictions on government civil law enforcement actions anymore, especially when this blog is daily reading, but that’s beside the point.”

    There certainly are such in the constitution, but these are not what they would need to be to be a bar to the killing of Al-Awlaki by the US government at this time.

    ““Those that quote the Constitution to defend their freedom are like a dog bringing its leash to its master.” — Butler Shaffer”

    Far more the fool he.

  176. #176 |  JD the elder | 

    Just to address a few of the comments people have made – somehow we managed to bring back for trial one of the Somali pirates who attacked the Maersk Alabama, so the idea that a US citizen overseas doesn’t deserve at least as much consideration seems odd. And speaking of pirates, the idea that Awlaki can’t be tried through the normal process because he’s “beyond the reach of law enforcement” hasn’t stopped people in the past. Many historical pirates, despite being beyond the reach of regular law enforcement and arguably at war with their home states, were still tried after their capture (Calico Jack Rackham, William Kidd, Stede Bonnet).

  177. #177 |  Cynical in CA | 

    Interesting case of a terrorism suspect being tried in federal court:

    http://freedominourtime.blogspot.com/2010/09/liars-for-hire-alchemy-of-provocation.html

    Federal court? Military tribunal? Who’s to decide? The executive? I guess we’ll just have to trust him.

  178. #178 |  Cynical in CA | 

    #167 | Tom Perkins — “When has the enemy in time of war had recourse to the civil courts?”

    It’s beside the point I was making, but read the above story as one example of many in this insane “war.”

    Humpty Dumpty said that a word means exactly what he says it means, no more, no less. I guess if the executive says we’re at war, we need to just sftu and trust him. Soldier A goes to federal court, soldier B goes to Gitmo. Roll the bones, trust the Leader.

  179. #179 |  Boyd Durkin | 

    …respect to the prosecution of a war, the general civil courts have no such authority.

    The “prosecution of a war” has nothing to do with the topic. Is someone making the case that it does? The issue is “state secret” is used as a pass for conduct (in this case assasination of US citizens) across peace, war, love triangles, and road rage.

  180. #180 |  Cynical in CA | 

    #168 | Tom Perkins — “There certainly are [a priori restrictions on government power] in the constitution, but these are not what they would need to be to be a bar to the killing of Al-Awlaki by the US government at this time.”

    Not Al-Awlaki by the US government, silly! You by your local gendarmerie! There essentially are no restrictions on the latter! You don’t come here much, do you Tom? Keep reading, perhaps your comprehension will improve.

  181. #181 |  Boyd Durkin | 

    @ #168,
    For every Hassoun the FBI can make, they generate $$billions in funding for defense, etc.

    I suppose it’s all in an honest day’s work.

  182. #182 |  Tom Perkins | 

    “The “prosecution of a war” has nothing to do with the topic.”

    So you’ve just now claimed, again without evidence.

    “Is someone making the case that it does? The issue is “state secret” is used as a pass for conduct (in this case assasination of US citizens) across peace, war, love triangles, and road rage.”

    The issue is whether in time of declared war, against the foe in that war, whether the US government can kill an enemy–self chosen to be such–in that war by means that are militarily appropriate and expeditious without before hand clearing that individual action beforehand with the civil courts, and of course it can do so, and it is quite likely the specifics of it are a state secret. The place for oversight for it is in the national legislature, not the civil courts. Peace, love triangles, and road rage have nothing to do with it, and your hyperbole shows you know you are losing the debate, and must resort to emotional outbursts to feel you are having any effect.

  183. #183 |  Boyd Durkin | 

    Peace, love triangles, and road rage have nothing to do with it, and your hyperbole shows you know you are losing the debate, and must resort to emotional outbursts to feel you are having any effect.

    Huh? Evidence please.

  184. #184 |  Tom Perkins | 

    At Cynical in CA, RE Sami Samir Hassoun

    His lawyer says, “My client didn’t bring anything of his own making to the incident,”. And he’s so wrong he must be speaking lawyerese, by which I mean lying. His client brought his own will to kill to the incident.

    It is convenient and commodius for the civil courts to deal with it, why should they not? Now if he had absconded with himself to preach and practice jihad in the empty quarter, I should have no quibble with his catching a missile.

    I’ll agree this borders on entrapment, but the man chose to plant the “bomb”. No one had a gun to his head…
    …If that fact turns out not to be, then I hope the FBI and others involved do time.

  185. #185 |  Tom Perkins | 

    “Huh? Evidence please.”

    You said it here.

    http://www.theagitator.com/2010/09/27/tyranny/comment-page-4/#comment-419762

    “I suppose it’s all in an honest day’s work.”

    If you think the FBI wants to pump up the Pentagon’s budget, I think you’re nuts.

  186. #186 |  Nick T | 

    Tom, there is no declaration of war. Stop making crap up. The AUMF also doesn’t cover Awlaki. You rely on this construction that we are at war and then therefore that killing Awlaki is the same as firing on German tanks in WWII.

    Yet even by those terms, it is unlawful to summarily execute a solider who has dropped his weapon and surrended, it is unlawful to intentionally target civilians even if those civilians support, through words or by working at a bomb factory, the enemy. It would be unlawful to target people outside of the definable conflict (I mean surely you would gree it woul dbe unlawful to target a Russian Jew who wants to kill American civilians to settle some cold war score under the AUMF right? Tell us you are grounded in some form of reality!)

    So even granting the inaccurate situation you’ve constructed, you must assume so many facts that are not clear and are governed by LAWS. This new conflict is in so many ways unique and unprecedented. many have pointed this argue to argue for expanded executive authority or that the laws of war don’t apply, but they reject the flipside of this coin that suggests that these executive powers must be checked lest we hand the presidency the same powers the would define a tyrant. In other words, if the war is global, and involves non-uniformed fighters, and necessitates a greater level of preemptive action etc. then do we completely unleash the executive, or do we recognize these new modalities or paradigms or whatever require new checks to avoid abuse?

    You can’t have it both ways, no matter how hard you try.

  187. #187 |  JS | 

    Nice “Through the looking glass” reference Cynical! Impenetrability, that’s what I say!

    And Tom I imagine not all who are Wahabists in belief are actually willing to kill for it, much less die. Like all religions there’s a very small number who are actually willing to do more than just talk the talk.

  188. #188 |  Tom Perkins | 

    “Not Al-Awlaki by the US government, silly! You by your local gendarmerie! There essentially are no restrictions on the latter! You don’t come here much, do you Tom? Keep reading, perhaps your comprehension will improve.”

    My reading comprehension is fine, there was little to show you’d changed the subject. In any case, I wrote, “There certainly are such in the constitution, but these are not what they would need to be to be a bar to the killing of Al-Awlaki by the US government at this time.”

    And there are many and sufficient–if they were obeyed–restrictions on the local gendarmerie killing me or you. And actually I come here relatively frequently, it’s just occasionally that the idiocy of people I would otherwise support prods me into commenting against them.

    “I guess if the executive says we’re at war, we need to just sftu and trust him.”

    No, but if Congress says we’re at war and we don’t like it, then we need either to elect a new Congress that will bring it to a close or to elect one which will fight it in a manner to our liking.

    “Federal court? Military tribunal? Who’s to decide? The executive? I guess we’ll just have to trust him.”

    See the above.

  189. #189 |  Tom Perkins | 

    “And Tom I imagine not all who are Wahabists in belief are actually willing to kill for it, much less die.”

    All the more reason to be effective in whittling down the number of targets to that minimum.

  190. #190 |  Nick T | 

    Also your description of the 5th Amendment as applying only to civil Law enforcement is embarrassingly incorrect. It was written to apply (and essentially continues to apply) exclusively to the federal government. It was written less than twenty years removed from the arbitrary actions and punishments of King George, so to say it is silent on the issue of whether the President could order the assassination or execution of an American citizen simply by saying this person was a threat to national security is absurd on its face.

    It was written at a time shortly following armed conflict, when it was understaood that countries went to war and shot and killed eachother’s soldiers. So it clearly wasn’t meant to restrict soldiers from killing on the battlefield, but that doesn’t mean it is silent on Presidential executions. The Constituion isn’t a logic puzzle for people like you to apply “lawyereze” to. There’s a context which every thinking person agrees must be applied to any attempt to interpret the document accurately. To oversimplify that context: they were scared of centralized power (like a King) but they certainly weren’t intending to eliminate legal, military and social customs and conventions of that time.

  191. #191 |  JS | 

    By killing them all or forcing them to repudiate the concept of jihad? It’s not realistic Tom.

  192. #192 |  Boyd Durkin | 

    Go set ‘em straight, Tom!
    http://www.reddit.com/r/politics/comments/dklsl/this_week_the_obama_administration_declared_that/

    You can admit it or not but your reading comprehension is poor. Show me how the use of hyperbole indicates I know I’m losing an argument. I’ve used hyperbole in 99% of every comment I’ve ever posted…even the ones on LOLCats where no argument takes place. THERE! I just did it again.

    The FBI wants to pump their own budget. If the budget shotgun also bumps up the Pentagon, CIA, and Wendy’s so be it.

    Now you’re just pulling stuff outcha Goatse.

  193. #193 |  Cynical in CA | 

    Well played, Boyd.

  194. #194 |  Cynical in CA | 

    #180 | Tom Perkins — “My reading comprehension is fine, there was little to show you’d changed the subject.”

    No worries, Tom. We all have bad moments, I’ll try to type a little slower for you.

  195. #195 |  Cynical in CA | 

    #181 | Tom Perkins — “All the more reason to be effective in whittling down the number of targets to that minimum.”

    And if a few million civilians get in the way, no biggie. That whole region could use a little population control, eh Tom?

  196. #196 |  Tom Perkins | 

    Nick, there is a declaration of war, the acronym for its title is AUMF.

    “The AUMF also doesn’t cover Awlaki.”

    A) at least you admit it exists, that’s progress. B) I had already without controversy stated it would be fatuous to assert the AUMF does not cover people who become Jihadist/Islamist/AlQaeda aligned and violent on 9/12–hence it covers Awlaki very well.

    “…then therefore that killing Awlaki is the same as firing on German tanks in WWII.”

    It is the same as strafing Rommel, perfectly good conduct in time of war.

    “it is unlawful to summarily execute a solider who has dropped his weapon and surrended”

    Awlaki turned himself in? Who knew? Stop the presses!!!

    “it is unlawful to intentionally target civilians even if those civilians support through words or by working at a bomb factory, the enemy”

    Of course we can target the enemy, and we can target his means of production. None of which supports the contention–without it your statements are an utter tautology without any relevance–that Awlaki is a noncombatent civilian.

    “It would be unlawful to target people outside of the definable conflict”

    Except Awlaki has placed himself well inside the definable bounds of the conflict, he is part and parcel with Bin Laden’s efforts.

    This doesn’t deserve comment –> “(I mean surely…form of reality!)”

    “You can’t have it both ways, no matter how hard you try.”

    I’m not trying to have it both ways, I’m trying to have the same I believe we’d have done it in 1775* or 1861, if we’d have had the means.

    *Snipers were thought to be on the edge morally in 1775, yet both sides kept rifle armed light troops who were to draw beads on specific enemy targets. Conveniently, badges of allegiance were less of an issue as well.

    And RE “the inaccurate situation you’ve constructed”, you might try spelling out how the AUMF is not a declaration of war.

  197. #197 |  qwints | 

    Tom, I think I understand the argument you’re making: the civil judiciary has no business in deciding how the US fights a war. Instead, the legislature decides when we go to war and the executive fights it subject to legislative oversight. My and others problem is that the expansion of what war means is problematic. Declaring war against loosely defined organizations provides a vast expansion of the war power. Correct me if I’m wrong, but it seems to me to be entirely novel. As such, one cannot blind cite precedent based on defined conflicts between nation-states to our current situation.

    If the laws are silent during times of war and the government can unilaterally define when we’re at war, that’s tyranny. It may be a tyranny of the majority if it enjoys popular support, but it’s tyranny nonetheless. Removing judicial review ends the rule of law because the courts are the only truly individually initiated redress to governmental abuse.

  198. #198 |  qwints | 

    Tom, to repeat, the AUMF does not cover jihadists in general. It specifically covers only organizations linked to the 9/11 attack. It does not cover everyone who agrees with their aims.

  199. #199 |  Tom Perkins | 

    “It was written less than twenty years removed from the arbitrary actions and punishments of King George.”

    And yet, we fought wars with soldiers unencumbered by the courts reviewing government military actions, and without the least notion the 5th was written to prevent or force a review of such actions by the civil judiciary. That should be telling you that you are abjectly wrong.

    “he Constituion isn’t a logic puzzle for people like you to apply “lawyereze” to. ”

    I don’t apply lawyerese to it, that’s what you are doing in asserting it forbids something it plainly has never forbidden before, the prosecution of a war without the interference of the civil courts. It’s what the would be Chicago bomber’s lawyer was doing in saying, “My client didn’t bring anything of his own making to the incident,”.

  200. #200 |  Tom Perkins | 

    “By killing them all or forcing them to repudiate the concept of jihad? It’s not realistic Tom.”

    Then we’ll have to agree to disagree on that, it is the only thing which has thrown the Islamists back off the throats of whoever they were after since Mohammed first picked up that damn rock. If done in Mecca, I think it would have the same sort of effect the Hiroshima and Nagasaki bombs had on the War Cabinet, forcing them to admit to themselves they had to stop resistance or be annihilated. It might even bring about the all but otherwise absent Islamic Reformation.

  201. #201 |  Tom Perkins | 

    “Show me how the use of hyperbole indicates I know I’m losing an argument.”

    Oh it’s a bald assertion, but one I’m quite comfortable with.

  202. #202 |  Tom Perkins | 

    “Well played, Boyd.”
    &
    “I’ll try to type a little slower for you.”

    Hmm. Legends in your own minds.

  203. #203 |  Tom Perkins | 

    “It specifically covers only organizations linked to the 9/11 attack. It does not cover everyone who agrees with their aims.”

    With the phrase about preventing future attacks not being limited to attacks by the same people who undertook 9/11, I believe it is no stretch to say it covers all persons who are violently in sympathy with AlQaeda.

    “Tom, I think…but it’s tyranny nonetheless. Removing judicial review ends the rule of law because the courts are the only truly individually initiated redress to governmental abuse.”

    Not more tyranny than war has ever been. I’d have a quite different opinion if Predator drones are used to settle zoning disputes.

  204. #204 |  Nick T | 

    Tom,

    You completely misunderstood or avoided all of my points.

    Your argument relies on so many facts that are not clear, and therefore if we leave those to the Executive to determine unilaterally then we are giving them enormous unprecedented powers. Again, you are trying to have it both ways by relying on precedents between uniformed combatants and declared wars, but not realizing that this authorizes unprecedented powers, or assuming facts at the center of what makes those theories or rules applicable. You rely on these old precedents, but don’t recognize that past US declarations of war used explicit language up until relatively recently.

    The point of highlighting all the rules of war is that under some of them, Awlaki can not be killed. If he is not covered by AUMF (which he clearly isn’t and only your baseless interpretation of it provides he is) then this is unlawful, if he is not engaged in active fighting (anaologous to a solider who lays down his arms) then he can not be killed, if he is not engaged in conflict but is only espressing support for violent action (like an opinionated civilian) then same. Only by resolving these questions of fact can you even apply your reasoning.

    As qwints pointed out above, if you leave this to be determined solely by the Executive then you are creating tyrannical powers. I mean, honestly tell me what is the point of the AUMF if the President can determine without question who it applies to, and where and udner what circumstances they can be killed with no judicial review at least at any point? You seem happy to concede there are rules for war but completey averse to the idea that a court would later review the application and adherence to said laws. I mean, if Congress oversees the President’s prosecution of a war, they can only do this by passing laws, and what then when the President defies them?

  205. #205 |  Tyranny At Its Best…Or Worst… « The Dame Truth | 

    [...] Tyranny [...]

  206. #206 |  qwints | 

    Nick, Congress can impeach the president.

    Tom, the part about preventing future attacks is quite similar to the first phrase of the second amendment. It’s merely stating the reason for the law, not creating law in itself. Furthermore, the reference to “such organizations” makes it quite clear it’s limited to people and organizations involved in 9/11. A little research, however, does show that the US has alleged that Al-Awlaki did aid the 9/11 hijackers. (Chapter 7 of the 9/11 commission report.

    Moving on, you say that this is no more tyrannical than war has ever been. But this is a war broader in potential scope than any before. It’s well established that people have been mistakenly snatched off city streets due to mistaken identity. People thousands of miles away from combat zones are imprisoned, tortured and killed. When a war lacks geographic and temporal limits, we have to construct limits or we risk tyranny.

  207. #207 |  Tom Perkins | 

    “therefore if we leave those to the Executive to determine unilaterally then we are giving them enormous unprecedented powers.”

    I have never said the Executive determines those facts in and of itself, but does so under the oversight of the Congress. Declarations of war do provide great powers to the Executive, nothing discussed here in relation to Alwaki is unprecedented, except the notion advanced by Balko and the like that the civil courts have say in killing the enemy beforehand in each individual case, or to say that it is a priori not a matter of state secrets as to the specifics of such a killing.

    “but don’t recognize that past US declarations of war used explicit language up until relatively recently.”

    I specifically recognized it above, sorry you missed that and my concomitant true statement that the constitution does not require such explicit language, so it is not required for a declaration of war to be effective.

    “If he is not covered by AUMF (which he clearly isn’t and only your baseless interpretation of it provides he is)”

    Of course he is, he is a person violently in sympathy to AlQaeda and actively engaged in carrying their water. The AUMF has the phrase in it about preventing such future attacks. If in fact he restricts himself to “religious” activities, then he is still a valid target per the rules of war as much as an enemy chaplain is who urging his troops to victory. You simply know not whereof you speak.

    “if he is not engaged in active fighting (anaologous to a solider who lays down his arms) then he can not be killed”

    Like I said, he surrendered, stop the presses! My analogy to Guderian holds for his temporarily laying down arms, and my analogy about an eney chaplain holds if in fact he is merely preaching our defeat and or gathering recruits.

    “if he is not engaged in conflict but is only espressing support for violent action (like an opinionated civilian) then same.”

    If he were in the US, it would be the crime of sedition, and he could be charged, tried, and on the admitted facts of it convicted–or simply held without trial until the war ended or he died first. Per my analogy to an enemy chaplain, he can be killed without trial, and it would be legal per the rules of war.

    “if you leave this to be determined solely by the Executive then you are creating tyrannical powers.”

    Except I’ve never said it should be left to the Executive, it is a job for the Executive and the Legislature.

    “You seem happy to concede there are rules for war but completey averse to the idea that a court would later review the application and adherence to said laws.”

    That’s because was is not a matter for the civil courts, period. Never has been. The Supreme Court would only enter into it on the matter of the few constitutional restrictions that might arise, say for example by treaty.

  208. #208 |  Tom Perkins | 

    “this is a war broader in potential scope than any before.”

    Which creates no new powers. The Executive here is not attempting any new powers–it is availing itself of new means, but no new powers.

  209. #209 |  Tom Perkins | 

    The broader geographic scope does not mean any new powers, it just means more square feet.

  210. #210 |  JS | 

    I don’t really have anything to say this time I just want to make sure we get this thread up to 200 posts!

  211. #211 |  JS | 

    I swear it said 200 when I posted that and now its says 210 ???

  212. #212 |  qwints | 

    Tom, you’re absolutely wrong on the crime of sedition. The US does not recognize common law crimes and the sedition act was repealed in 1921. The crime of seditious conspiracy exists (18 USC 2384) as does the crime of “advocating overthrow of government (18 USC 2385). Both require that the accused specifically advocate assassinating a politician or the violent overthrew or destruction of the government. Declaring that people should kill cops or soldiers is simply not sedition though it may be another crime. Furthermore, even if someone was convicted of sedition, the maximum sentence is 20 years, not the duration of the conflict.

    You also claim that chaplains are ‘valid targets.’ The claim is false. The Geneva conventions specifically declare that chaplains are noncombatants (Protocol I, 8 June 1977, Art 43.2) protected by Article 3 of the Fourth Geneva conventions. In fact, countries are prohibited from “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

  213. #213 |  Tom Perkins | 

    qwints you may be correct that the original sedition act was repealed in 1921, but I strongly doubt if advocating that a specific enemy in time of declared war succeed in defeating us is not also advocating the destruction of the government, additionally jihad does require that the infidel be killed if they do not submit, on top of all of which, if the person is treated as a illegal combatant, then they are entirely outside the civil justice system and yes can be held until they are dead or the wars ends, whichever comes first. Go fish.

    No, you are quite wrong in looking at the Geneva Conventions to save your argument re chaplains–the specific bit you cite presupposes the chaplain is a civilian.

    By your standard, bin Laden is a civilian chaplain and we can’t a harm hair of his head.

  214. #214 |  Tom Perkins | 

    “In fact, countries are prohibited from “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.””

    Again, if that meant what you need it to mean to apply to Alwaki, then soldiers aren’t allowed to shoot each other without a guilty verdict first. Good luck with that.

  215. #215 |  qwints | 

    Tom, you brought up the subject of chaplains. Specifically you said, “If in fact he restricts himself to “religious” activities, then he is still a valid target per the rules of war as much as an enemy chaplain is who urging his troops to victory.” I replied that an enemy chaplain is a noncombatant and not a valid target. I did not state that Al-Awlaki was a chaplain. Chaplains (unarmed persons exclusively engaged in religious activity attached to a military unit, Art. 8 (d)) are not valid targets as you asserted under the Geneva Conventions. You were similarly wrong when you claimed that expressing support for violent action was sedition punishable by internment for the duration of a conflict.

    The question of whether illegal (usually called unlawful) combatants can be held outside the civil justice system is a complex question of US and international law. The Supreme Court has held that Common Article 3 of the Geneva conventions applies to all prisoners held pursuant to the AUMF. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Furthermore, it also held that US citizens are entitled to challenge their detention before an impartial judge. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The executive branch does not have the ability to hold a US citizen without due process regardless of legislative action.

  216. #216 |  qwints | 

    Re: 214.

    There is a clear and obvious difference between combat and a firing squad.

  217. #217 |  Ugly Americans | The American Book of the Dead | 

    [...] There’s seriously damaging shit being done right now by the Obama administration (the ability to kill people at will). Put this power in the hands of a teabagger president, and you’re free to crawl in a fetal [...]

  218. #218 |  Tom Perkins | 

    “Tom, you brought up the subject of chaplains.”

    Yes I did, and disposed of your spurious point.

    “specifically you said, “If in fact he restricts himself to “religious” activities, then he is still a valid target per the rules of war as much as an enemy chaplain is who urging his troops to victory.” ”

    I did say that and it is true, for this enemy, and they will not deny it, it is a religious duty to kill the enemy and to recruit new followers to do the same. Cool how yo fell right into that.

    “There is a clear and obvious difference between combat and a firing squad.”

    And the difference is the the target of the firing squad is entirely at the disposal of his enemy, he is in their hands and incapable of further action whether he is killed or not. In combat the enemy is at large and doing the work of the war, just as Alwaki is.

  219. #219 |  Tom Perkins | 

    See you later dudes.

  220. #220 |  Cynical in CA | 

    #202 | Tom Perkins —

    “I’ll try to type a little slower for you.” — CinCA

    Oh Tom, you misunderstood me. What I meant was that I would type slower so that my own thoughts were properly expressed and conveyed the exact meaning of my words. Seem’s the timing has been a bit off.

    Well, thanks for educating me just the same. You make very convincing apologies for the State.

  221. #221 |  Seamus | 

    Constitution only applies on US soil. Plus he’s renounced his citizenship. He’s actively waging war against the US. I really don’t feel like wasting the lives of our Special Forces troops in order to bring him in. Predator drone is good enough for me.

  222. #222 |  Cynical in CA | 

    For anyone who’s interested:

    http://tomdperkins.blogspot.com/

    Come and take them.

    Mountaineers are always free.

    For our faith in the Founder’s faith.

    Man, the internet is an amazing tool.

  223. #223 |  George | 

    Sounds good to me!

  224. #224 |  Lawfare › Closing Out My Exchange with Adam Serwer | 

    [...] completely irreversible. For that reason, folks on the civil libertarian left–and the genuinely small government right–think that granting a secret, unreviewable power of life and death [...]

  225. #225 |  nmeagent | 

    Tom — an civilian American citizen not only has an absolute right to due process before being murdered by the state, but also is presumed innocent until the state proves their case in the proper venue. Any assassination without this requirement is first degree murder or conspiracy to commit. The only legal way to kill this man is in self defense; basically he must be killed in the act of shooting at some of our troops!

  226. #226 |  Toastrider | 

    Part of me really doesn’t give a flying crap. Much like Adam Gadahn, if this ass eats a Hellfire, my only complaint will be ‘what took them so long’.

    But frankly, this sort of thing sets off my ‘twitch meter’ like nobody’s business. Various tea party, militia, and conservative elements (love ‘em or hate ‘em) are persistently identified as ‘destructive’, ‘dangerous’, and ‘terroristic’ — regardless of if they advocate ‘throw the bums out’ or ‘hang ‘em high!’. And conversely, there are leftists (particularly the various animal rights/eco-nut fringe groups) who could easily be flagged the same way, REGARDLESS of their citizenship (I may loathe them, but they should get their day in court like everyone else).

    The precedent set is simply too dangerous to be left in ANYONE’s hands — regardless of political affiliation.

  227. #227 |  Targeted Killing of U.S. Citizen a State Secret? « Political News Online | 

    [...] the claim the Obama administration made in court. As Glenn Greenwald puts [...]

  228. #228 |  The President’s Power to Order the Extra-Judicial Execution of an American Citizen « Later On | 

    [...] number of commentators have questioned the president’s claim of authority to assassinate, some calling it [...]

  229. #229 |  this is silly | 

    “I have to admit that I was really surprised when Obama pulled this one out of his hat. Perhaps shouldn’t have been, but however much I dislike him I just didn’t think he’d hit the slippery slope with a goddamned bobsled…”

    I’d like to say I told you so – because I did, as did many others – but it’s not like we could really expect anyone to believe us, so perhaps that isn’t fair.

    It is fair to say that plenty of people had misgivings long before November of ’08, and that those people were ridiculed as hicks, rubes, racists, conspiracy nuts, etc.

    Even I initially thought the guy was at least likeable even if I did not agree with his politics. That quickly gave way to skepticism and then dislike as I learned more about him. The problem, though, is not you simply could not depend on the media to report on the subject.

    I’m not going to say there isn’t a time and a place for the US Gov’t to drop a JDAM on a citizen. But there is NO time or place for them to do it without any sort of accountability whatsoever.

  230. #230 |  The President’s Power to Order the Extra-Judicial Execution of an American Citizen | Same Old Change | 

    [...] number of commentators have questioned the president’s claim of authority to assassinate, some calling it [...]

  231. #231 |  Donna | 

    I don’t have a problem with people expressing their views on issues involving this country but the real problem is addressing people in the position they hold. Now if some of you did not have a problem addressing bush as President Bush, Why is it that President Obama is not addressed in the same manner. This man is the President and should be addressed in every article, through the media, etc, as such. This country is the only country I know of that has no respect for those in authority positions. Other countries see us as a divided nation because we have lack of respect for each other and those that are in authority positions. President Obama’s job is very imortant to this country and some of you address him as though he is not the leader of this country. I would not want his job because it carries the wieght of this world issues, problems and making sure we are protected from terrorism. So address him as our leader (President Obama) because he was not the one who sent this country to war, he just inherited the mess made by the last president in office.

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