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 |  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.

  2. #2 |  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.

  3. #3 |  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.

  4. #4 |  qwints | 

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

  5. #5 |  Cynical in CA | 

    Thanks qwints, I loves the intertubes!

  6. #6 |  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.

  7. #7 |  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!”]

  8. #8 |  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?

  9. #9 |  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.

  10. #10 |  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.

  11. #11 |  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.

  12. #12 |  Nick T | 

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

  13. #13 |  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!!

  14. #14 |  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.

  15. #15 |  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.

  16. #16 |  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?

  17. #17 |  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.

  18. #18 |  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.

  19. #19 |  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.

  20. #20 |  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.

  21. #21 |  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.

  22. #22 |  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.

  23. #23 |  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

  24. #24 |  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.

  25. #25 |  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.

  26. #26 |  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).

  27. #27 |  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.

  28. #28 |  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.

  29. #29 |  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.

  30. #30 |  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.

  31. #31 |  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.

  32. #32 |  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.

  33. #33 |  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.

  34. #34 |  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.

  35. #35 |  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.

  36. #36 |  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.

  37. #37 |  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.

  38. #38 |  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.

  39. #39 |  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.

  40. #40 |  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.

  41. #41 |  JS | 

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

  42. #42 |  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.

  43. #43 |  Cynical in CA | 

    Well played, Boyd.

  44. #44 |  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.

  45. #45 |  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?

  46. #46 |  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.

  47. #47 |  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.

  48. #48 |  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.

  49. #49 |  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,”.

  50. #50 |  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.