Patterico's Pontifications

10/10/2011

Double Secret Justification for Killing American Civilians! (Update: al Qaeda Objects, too!)

Filed under: General — Aaron Worthing @ 6:55 am



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Update: Good news, Ron Paul and Kirsten Powers, a major organization agrees with you: al Qaeda!  From the WaPo:

Al-Qaeda has also criticized the Obama administration for killing U.S. citizens, saying doing so “contradicts” American law.

“Where are what they keep talking about regarding freedom, justice, human rights and respect of freedoms?!” the statement says, according to a translation by SITE Intelligence Group, which monitors jihadist Web sites.

Right, we should respect their freedom to kill us for exercising our freedom.  It makes perfect sense!

—————————————————

So we learn over the weekend that the Obama administration had prepared a secret memo explaining why it was legal to just outright kill nominal American citizens, like Anwar al-Awlaki, and there is so much wrong here that I barely know where to begin.  But don’t worry, I am not going to go the full Ron Paul on you.  You should never go the full Ron Paul.  But there is so much stupidity on both sides of the issue it isn’t even funny.

First, to the Obama administration…  um…  why is this a secret memo?  Are you under the impression that the law is now a national secret, that only people with security clearance are allowed to read the U.S. Code, and Supreme Court cases?  Perhaps in the particular case of Awlaki your memo reveals facts that are best kept secret.  I can accept that.  But why not release a generic version that makes no reference to a specific case?

Of course the reason why isn’t really national security, but embarrassment.  For instance, over at Powerline, Steven Hayward writes:

Gosh, who knew that John Yoo had gone back to work for the Obama Justice Department’s Office of Legal Counsel[?]

Admittedly the embarrassment theory is just that—a theory—but seriously is there a better explanation than the hypothesis that this administration doesn’t want to sound too much like George. W. Bush, lest someone get the impression that eight years of criticism of the man was, shall we say, less than sincere?  Then the average American might get the impression that the Democrats were harming national security just for cheap political gain, so naturally that makes this memo a dangerous national secret that can’t be revealed to the public.

And of course the dismaying part of it is that they still manage to sound like they are treating terrorism like a criminal matter, rather than an issue of war:

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

(Emphasis added.)  Now, I personally believe strongly in capturing terrorists alive not because I care a jot about their lives as valuable in and of themselves, but because I prefer that we then squeeze them for intel.  But there is no legal requirement in war that you only kill if you can’t capture—it may be pragmatically wise, but it is not legally required.  Instead in war, you are allowed to kill the enemy wherever he or she is found, without mercy, unless the person actually surrenders.

But in law enforcement, you are supposed to capture, i.e. arrest, a “suspect” if it is possible—and only if it is not feasible to capture the person do you consider killing him or her outright.

So that is the stupidity on the “pro” side in the debate over killing Awlaki.  Meanwhile for stupidity on the “con” side, we have my twitter dustup with Kirsten Powers.  It all started when I saw her post the following when we learned the good news:

[The] Constitution says “No person shall be… deprived of life, liberty, or property, without due process of law.” PERIOD.

[I will be editing these tweets to clean up typos and the like (including likely my own), but if you follow the link you will see my changes did not change the meaning of this.]

Anyway, so I pointed out that by her logic that meant the entire Civil War was unconstitutional—not based on the theory that the South had a right to secede, but based on the theory that the Federal Government can’t actually kill the Confederates without a full trial under her reading of the Fifth Amendment.  More than a few people apparently started criticizing her stance, because she puts up a lot of posts about how she is standing up for the rule of law and the First Amendment, truth, justice and the American way…  And then she adds this:

@StevenErtelt can [you] really not see the distinction [between] killing someone who is shooting [at] you and the US [government] targeting an [A]merican to kill?

So now she thinks that we are not allowed to shoot people in war unless they shoot first?  Um, no.

Now I don’t know if this is in response to me or someone else making the same argument, but then she writes:

I’m told there is an 1861 legal opinion from the Dept to Law to Pres[ident] Lincoln saying U.S. military c[ou]ld kill ci… (cont) http://deck.ly/~o3FxO

The rest of the comment was shunted off to Tweetdeck and as of now, I can’t see it, but I saw it at the time, and the essence of what she said was that this mysterious memo claimed that Lincoln could kill civilians in the South because in the act of secession they renounced their citizenship.  And folks, there is so much bad logic in that it gives me a headache.

First, you’re “told” there is such a memo?  That is the best you can do, Kirsten?  I was told that Jefferson said that “dissent is the highest form of patriotism” but in fact he didn’t say that, so you will have to do a little better than a rumor.  I mean, look, I was a history major and remain a history geek, but I won’t pretend I have such mastery of the material that such a memo couldn’t exist.  But I have never heard of it and I think it is more than likely that I would have.

Second, Lincoln did not accept the premise that every single civilian in the Confederacy was disloyal.  For instance, his second Vice President, Andrew Johnson, was a dissenting Tennessean and in a message to Congress on July 4, 1861, Lincoln wrote:

It may well be questioned whether there is to-day a majority of the legally qualified voters of any State except perhaps South Carolina in favor of disunion. There is much reason to believe that the Union men are the majority in many, if not in every other one, of the so-called seceded States.

Third, that language—“so-called seceded States”—presents another problem for her argument.  She claims that their secession gave him permission to kill, but Lincoln absolutely refused to recognize that any secession occurred at all.  His attitude was that secession was illegal, therefore it didn’t occur.  So how exactly can Lincoln justify an action legally based on facts he refuses to accept?  It’s like asserting a shooting was justified as self-defense, when the shooter asserts he never felt like he was in danger—it’s illogical, and invalid.

And there is one final, but massive problem with this argument.  Let’s read the Fifth Amendment’s language again:

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

Does anyone else see the problem here when talking about the killing of citizens?  The answer is people like Ms. Powers are making a distinction that the Constitution itself doesn’t make: between citizens and non-citizens.  The Fifth Amendment applies to “persons” and citizenship is irrelevant to its application.  As I snarked to her that day:

@kirstenpowers10 Seriously[,] are you under the impression that the [government] can just kill non-citizens?  Even green card holders?

So by her logic, not only would the Civil War be unconstitutional under the Fifth Amendment, but so would pretty much every war we have engaged in since the Constitution was ratified.  Which suggests that maybe, just maybe, she is getting it wrong.

Now you can debate how the founders wished this concern to be addressed.  You could argue, for instance, that they simply believed that the Fifth Amendment didn’t apply to war at all.  Or you could argue that Awlaki did receive due process: by appropriate process war was declared against al Qaeda, and as a member thereof he was eligible to be killed wherever he might be found, and that is all the due process he is entitled to.  Personally I lean toward the first theory, but please spare me the following specious arguments:

He was just exercising his right of free speech! Most of what a general in an army does is speak.  Generals rarely personally pull the trigger on anyone.  And yet they are recognized as legitimate targets of war.  The same goes for presidents/dictators who also serve as commanders-in-chief of their military.

He was an American Citizen! That is irrelevant to the Constitution.

He might be innocent! The sad reality of friendly fire demonstrates that indeed the killing in war can be truly arbitrary.

We should be appropriately wary of a too-powerful government, but the fact is that our rights can be breached by more than just government.  Yes, we have a First Amendment to prevent the government from restricting the right of freedom of speech and religion, but what good are those rights when people are afraid to publish a cartoon depicting Mohammed, lest they get killed?  And while I advocated a private action solution to that problem, I always made it clear that the most ideal solution would be for the government to handle this problem, writing:

In every stage of this, the government has failed to protect us.  As a generally libertarian guy, this is one of the places where I say that government positively has a role to play—to ensure our freedoms not just by avoiding a violation of our rights, but actively standing between us and anyone who would use violence and threats to take that freedom from us.

Everyone remembers how the founders wrote that

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

But read the very next words:

That to secure these rights, governments are instituted among men[.]

(Emphasis added.)  Even at the moment of Revolution, the founders recognized that it was not enough for the government to avoid violating our rights, but it had a positive duty to protect them, that it was indeed the entire reason why governments existed at all—to secure those inalienable rights.  And their charges against the king were filled with examples of a failure to protect: “He has refused his assent to laws…”, “He has obstructed the administration of justice…”, and so on…  In other words, the founders found just as much cause in rebellion in what the king didn’t do as in what he did.  Our government can just as easily lose its legitimacy by failing to protect our citizens as it can by violating their rights.

So what Obama did, in killing terrorists like Awlaki, or Osama bin Laden, was precisely what the government is supposed to do.  (Some people have theorized that this is why he doesn’t get much of a bump in the polls when he does things like this—because it is considered too basic to his job to earn him additional devotion.)  These terrorists have violated our citizens’ sacred right to life and that right was vindicated by sending them to the fires of Hell.  In doing so, Obama affirmed that the present government is still legitimate under the principles of the Declaration of Independence.  I will continue to be a harsh critic of this administration, but on this he did exactly the right thing—even if his lawyers’ reasoning is dubious.

[Posted and authored by Aaron Worthing.]

235 Responses to “Double Secret Justification for Killing American Civilians! (Update: al Qaeda Objects, too!)”

  1. Must… resist… urge… to crack a joke about how Powers might have avoided all of this if she finished law school…

    Aaron Worthing (e7d72e)

  2. Imagine if Bush had done this.

    JD (318f81)

  3. Some people have theorized that this is why he doesn’t get much of a bump in the polls when he does things like this—because it is considered too basic to his job to earn him additional devotion.

    Indeed. He did what any rational person in that position would do: eliminate the threat to national security.

    Great post, Aaron.

    ColonelHaiku (a4b693)

  4. But there is no legal requirement in war that you only kill if you can’t capture—it may be pragmatically wise, but it is not legally required. Yet.

    There, fixed.

    Kevin M (563f77)

  5. Kevin

    lol

    Col.

    Thanks for the praise, although you are probably biased. :-)

    Aaron Worthing (e7d72e)

  6. Say we have three terrs, on a high value target list. We have their names. Suddenly, we have their locations in the high desert of Upper Revolta. Time to kill them.
    One of them is a US citizen. He gets a break due to his citizenship because…?

    Richard Aubrey (a75643)

  7. because a drone strike would end his life, liberty and the pursuit of terroriness?

    ColonelHaiku (a4b693)

  8. You should never go the full Ron Paul.

    heh

    Agree with Colonel this was a great post.

    Dustin (b2fb78)

  9. I must question the judgment of someone who dated Anthony Weiner.

    Dick S (fe5cd9)

  10. Colonel – No worries. The State Department can always apologize to his family for the collateral damage later.

    daleyrocks (bf33e9)

  11. AW, I am truly disappointed that you would dis such a Hot-Chick as Kirsten; truly disappointed.
    Even if she is Boxer-Brick Dumb!

    Another Drew - Restore the Republic / Obama Sucks! (d40a96)

  12. The justidfication is he ain’t Bush.

    DohBiden (d54602)

  13. Would you explain please, if this targeting of citizens is legal, would it have been legal to kill John Kerry when he was supporting the North Vietnamese, or Bill Clinton when he was in Moscow? Jane Fonda?

    This is a serious question. What sets this apart from these examples?

    What if the administration decides that a Republican politician is too big a threat to the country because of his popularity or because his House committee is subpenaing a witness that has the goods on the administration?

    I’m not saying this attack was wrong but I am asking what limits are there to protect us from a ruthless and corrupt administration misusing this power? The idea of the President being able to call for a hit on a citizen and claim secret justification is very uncomfortable to me. I would point out that LEOs are NOT allowed to assassinate someone they can’t capture. Deadly force is only allowed to protect life.

    Machinist (b6f7da)

  14. Would you explain please, if this targeting of citizens is legal, would it have been legal to kill John Kerry when he was supporting the North Vietnamese, or Bill Clinton when he was in Moscow? Jane Fonda?

    Yes, yes and HELL YES! That would be like that Ray Bradbury story “Sound of Thunder” about stepping on the butterfly…

    ColonelHaiku (a4b693)

  15. It has been a while but I don’t think that ended well.

    Machinist (b6f7da)

  16. would it have been legal to kill John Kerry when he was supporting the North Vietnamese, or Bill Clinton when he was in Moscow? Jane Fonda?

    This is a serious question. What sets this apart from these examples?

    I seem to recall Jane Fonda actually lionizing the use of anti aircraft weapons against US Pilots.

    Otherwise, were these democrats actively conspiring to kill Americans?

    I’m speaking as a matter of discretion, rather than law (since I realize the law forbids aiding the enemy at all, which at least Kerry also did).

    Alwaki was actively summoning people to murder Americans. Successfully. He was part of the massacre at Ft Hood. So he’s on a level surpassing other lesser traitors.

    Dustin (b2fb78)

  17. Machinest

    are you saying that if a bomb happened to hit Jane Fonda while visiting the enemy, that would be illegal?

    anyway, one major limitation is there actually has to be a declared war. and you have to be doing something more than just saying something nice about the enemy, but actually providing aid and comfort. Tokyo Rose is not protected by the first amendment.

    Aaron Worthing (e7d72e)

  18. Are we in a state of declared war as defined in the Constitution?

    Machinist (b6f7da)

  19. When did Congress declare war?

    Machinist (b6f7da)

  20. -Comment by Dustin — 10/10/2011 @ 9:27 am-

    Is this a distinction you are comfortable with a President being able to make in secret to target assassinations of Americans? With no accountability?

    Machinist (b6f7da)

  21. Yes, and if I were President For A Day®, Nancy Pelosi and Harry Reid would cease to be blights on the landscape.

    ColonelHaiku (a4b693)

  22. How was Tokyo Rose any different from John Kerry? Both engaged in propaganda in support of our enemies but neither one was active against our troops’ lives. The only difference I see is the fact that Congress declared war against Japan. Did we have a declaration of war against North Vietnam?

    Machinist (b6f7da)

  23. “When did Congress declare war?”

    Machinist – Two AUMF’s are equivalent to declarations of war. The first included Al Qaeda and its members, etc., any time, any place, if I recall correctly.

    daleyrocks (bf33e9)

  24. -Comment by ColonelHaiku — 10/10/2011 @ 9:36 am-

    Which is why I am uncomfortable with this.

    Machinist (b6f7da)

  25. I don’t think that Machinist was talking about a scenario where someone like Fonda just happened to have been bombed. Intentionally targeting a US citizen with the forced of the US military is the applicable metric. Would the approval be different if the citizen was located in Alabama instead of the Middle East? Being so dismissive of Machinist’s legit question does not strengthen your argument.

    JD (17012e)

  26. -Comment by daleyrocks — 10/10/2011 @ 9:37 am-
    “Two AUMF’s are equivalent to declarations of war.”

    I’m not denying this but are they really? Under law and the Constitution?

    Does this mean that anyone the President decides is Al Qaeda can be killed, with no proof or accountability? What stops him from deciding Issa is supporting Al Qaeda? Power does not corrupt, immunity corrupts.

    Machinist (b6f7da)

  27. It’s a slippery slope, we don’t want to go down the Roman road of proscriptions, like Sulla did,

    ian cormac (0fc95f)

  28. I believe we had authorizations for military force to go into Afghanistan and Iraq, but did we declare war on them? Are we still legally at war?

    Machinist (b6f7da)

  29. “With a spot I damn him.”

    Machinist (b6f7da)

  30. Greetings:

    Back in my infantry days, I used to tell my new soldiers this parable.

    Two young riflemen were having the age-old philosophical discussion about where to shoot those who would oppose them. One was a “head-shooter”; the other preferred the “center-mass” (torso). The head-shooter asserted that if you hit him, he’s done. The center-mass guy liked the larger target area. As they were going back and forth, their Platoon Sergeant came by. “Hey, Sarge,” called out the head-shooter, “where do you like to shoot the bad guys?”

    “In the back,” he replied.

    As many as you can, as often as you can, anywhere and any way you can.

    11B40 (026cba)

  31. Comment by Machinist — 10/10/2011 @ 9:44 am

    The Constitution does not prescribe a form that must be followe for a “Declaration of War”, just that only the Congress has the power to do so.
    The AUMF-’01 meets the generally accepted, international standards for such a declaration.
    Awlaki took up arms (at least metaphorically, if not literally) against his “own” country, putting loyalty to his theology above that of his country of birth (which I’m sure in his mind was just an accident of geography).
    As an enemy combattant who fell under the provisions of the AUMF-’01, he was a bona-fide target.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  32. Is this a distinction you are comfortable with a President being able to make in secret to target assassinations of Americans? With no accountability?

    Comment by Machinist — 10/10/2011 @ 9:33 am

    That’s a good question.

    A great question.

    The answer is, in all honesty, no, I’m not at all comfortable with a no accountability assassination power. Though the ‘American’ aspect is not particularly relevant in my thinking.

    I just happen to like this result, so the concerns I should feel are a bit overwhelmed.

    Alwaki was waging war. In my opinion, we don’t need a declaration of war, in those words, for war. War is a certain set of actions, and congress has authorized those kinds of actions, and so we’re at war.

    Since this wasn’t just Alwaki being present to die when routine warmaking occurred, but was specifically selected for assassination, I think you’re raising a good issue.

    Should congress just specific in law what kinds of people can be targeted for assassination? Should we simply not have assassinations, always going for captures? Shouldn’t that sort of thing fall under the discretion of ‘commander in chief’? Shouldn’t he have some discretion?

    I don’t know of a solution to this that handles any extreme case I can come up with. We elected a coward who is afraid of any bad press, so won’t capture high profile targets, and is just killing them. I think that is a relative setback.

    Dustin (b2fb78)

  33. machinest

    yes, we went to war. it doesn’t have to be called a “declaration of war” to be such, just as long as it authorized the president to use the powers of war, that is enough. i will add that the president is allowed to use the powers of war whenever it exists, declaration or not. FDR didn’t have to wait for congress to declare war, and the way they worded it was that it said that war already existed. FDR could have responded immediately without a declaration.

    we were at war the moment they took to the skies on 9-11. maybe arguably before that. we knew we were at war when the second tower was struck.

    And comfortable or not, that is the law. This is why i believe that character is very important in picking a president.

    (And seriously, you do know that fully half of col’s posts are jokes, right?)

    Aaron Worthing (e7d72e)

  34. Dustin, this current situation, killing v. capture, was predicted during the campaign when the subject of the closure of GITMO, and the application of criminal proceedure to the battlefield was proposed.
    Everyone at that time knew that if you were going to “Mirandize” all POW’s, that the Grunt in the field would just put a bullet through their heads to speedily deal with the issue.
    This, the use of drones/missiles, is just the same scenario writ large.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  35. Soldiers fighting other soldiers on the battlefield are one thing. A President calling for a hit on an American and saying his reasons or justifications are secret are another matter. Our founders certainly never intended that the Executive have this power without accountability. Some seem to be saying this is OK with the Constitution and I am asking how it is restrained. Is this the politics of assassination like pre WW2 Japan where you are justified if you gain enough power to avoid having to answer for it? How does this work within our Constitutional framework?

    Machinist (b6f7da)

  36. (And seriously, you do know that fully half of col’s posts are jokes, right?)

    Yes, it is the rhyming that is the serious stuff.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  37. machinest

    What seems to have your panties in a bunch is the fact that awlaki wasn’t in a live firefight. are you under the impression that is the only time we kill the enemy?

    i mean like in the very first day of the iraq war, Bush tried to drop a bomb right into saddam’s lap, maybe. Do you remember that? For a few days there was speculation we killed him on the first day. Saddam was not shooting at anyone at the moment, but we did our best to drop a bomb on him and the only issue is whether our intel and aim was good enough to get him, not whether it was legal or not.

    Do you have a problem with that sort of thing?

    Aaron Worthing (e7d72e)

  38. This is why i believe that character is very important in picking a president.

    That’s what it boils down to, Aaron. A wartime president has tremendous power. He could potentially end the world. Or save it.

    And we should never give that power to someone without character. Ideology matters a lot, but character matters more. I would vote for an honest patriotic democrat over a sleazy selfish Republican just telling me what I want to hear (the dems never nominate any patriots anymore, though).

    This, the use of drones/missiles, is just the same scenario writ large.

    Yup. And sometimes that is probably the right call. I don’t want to send the troops in to get shot up needlessly trying to mirandize the enemy.

    The administration has such a tension between Eric Holder and Obama’s wartime policy. The solution is those drone strikes, or the OBL raid, which personally I wish resulted in a capture and was covert until the sentence was carried out (the administration announces OBL was convicted and executed yesterday).

    We needed to know what OBL knows. That was one of those rare things worth risking American lives for.

    Dustin (b2fb78)

  39. The Constitution does not specify either the form or the title a Declaration of War has to take, Authorizations to Use Military Force (AUMF) fit the constitutional requirements and in fact have a long history.

    Enemy commanders are a legitimate target of war, that’s been US military doctrine since the Revolutionary War, the British were right pissed at us for our snipers targeting their officers.

    Anwar al-Awlaki was an enemy commander, he didn’t just talk, he authorized attacks. That made him a legitimate target of war. His being an American citizen gave him no pass.

    If you think his not serving any state precludes dealing with him as an enemy belligerent, then he becomes a mere bandit, an outlaw like a pirate, a universal enemy of mankind, kill-able without due process on that basis.

    LarryD (feb78b)

  40. Actually, machinist, the call was to kill a high value terrorist.
    The question is whether his being an American gives him some kind of a break another high value terrorist who isn’t an American doesn’t get.
    The slippery slope is whether the president can insist on killing terrorists.
    Then it becomes can a president insist on killing terrorists whose name we know.
    Then it becomes can a president insist on killing terrorists whose name we know and who is American.
    The first question is obviously answered yes. The second one gets some folks squeamish–usually wnen it would hobble US actions.
    The third one is the question we have before us. If he’s the same as other terrs we’ve whacked, what does being an American add or subtract?
    Remember the time we tried to arrest Mohammed Aidid? There was a movie about it. “Blackhawk Down”.

    Richard Aubrey (a75643)

  41. -Comment by Aaron Worthing — 10/10/2011 @ 9:56 am-
    “we were at war the moment they took to the skies on 9-11″

    With whom were we at war? The Saudis? Arabs? Muslims? Who makes this call and how are they restrained or held accountable?

    As a lawyer would Bush have been legally justified in killing all Muslims in America? In launching nukes against all Muslim countries? Who decides who “they” is that we are at war with?

    Machinist (b6f7da)

  42. I think they may have kept the memo secret for the following reasons:

    1) They didn’t want to let Awlaki and Al Qaeda know some of the things on which his vulnerability possibly depended on. For instance, to avoid violating Yemeni sovereignty it needed permission from the Yemeni government. Maybe there might be some effort to get that revoked.

    Another thing it depended on was that Awalaki could not be easily captured (the memo had this higher standard for an American citizen, because the constitution, as opposed to the laws of war, only applied outside the United States to U.S. residents. Perhaps Awlaki could tease the U.S. with offers of surrender he didn’t mean or that would be too risky to accept which he knew the U.S. wouldn’t accept (because of Al Qaeda’s penchant for suicide and other bombers) and he hold it off that way.

    It also said avoiding the use of disproportionate force that would increase the possibility of civilian deaths would constrain any operation against Mr. Awlaki. Maybe he might take care never to travel without a child in the car or something. (as it is, Awlaki was not aware of how closely he was being observed. They waited until he got away into the open road surrounded by nobody else except other members pf Al Qaeda and may have also oped to get others with the same attack.)

    Another issue was that maybe CIA officers (who controlled the drones) might not be considered soldiers under international law, because the Geneva Conventions says soldiers have to wear uniforms (something pretty irrelevant for someone physically present in the United States controlling drone)

    The memo concluded it was not a problem under U.S. law – it still was an act of war, and not a war crime either – but they could be prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder. Why tell that to our enemies? (This issue applied to all drone attacks)

    Without telling them that we might consider such a prosecution legally valid, it would forever be extremely unlikely. (If they were wearing a uniform I would surmise the memo writers assumed then they could only be prosecuted if it came without permission from the country involved, which in this case they had from President of Yemen)

    Of course that issue could be obviated by commissioning the drone operators into the military, and putting them into uniforms, or a semblance of a uniform, but that creates legal complications for those people, and…they would probably feel like idiots if they recommended that, and you create an unnecessary obstacle.

    2) They didn’t want to let it be a legal precedent – either way. They raised every possible objection that they had an answer to, but perhaps in a different circumstance, they didn’t want to be bound by those objections. And they also didn’t want to make it too easy to legally kill an American citizen abroad. So – keep the memo under wraps and make it as specific as possible to this case.

    3) This memo also covered international laws, and they didn’t want it used by other countries, who, by the way, could claim the facts in some other case supported them, even if it wasn’t close to true at all, and neither did they want it used as a club against the United States. This can be classified as diplomatic reasons.

    Here is the New York Times story about the memo:

    http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html?sq=secret%20legal%20memo&st=cse&scp=1&pagewanted=print

    here is how they covered all the issues.

    The executive order that bans assassinations? No, he is a lawful target in an armed conflict.

    The statute that prohibits Americans from murdering other Americans abroad? No, it’s not “murder” to kill a wartime enemy in compliance with the laws of war.

    What if the drone operator was not wearing a uniform? That would not make the killing a war crime, although there might be more vulnerability to a local prosecution.

    What about the fact that Awlaki was in Yemen, not Afghanistan or Pakistan? He was still part of the same battle.

    what about the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law? (This is the issue which applied peculiarly to U.S. citizens or permanent residents because out there in Yemen, the U.S. Constitution does not otherwise apply – it doesn’t follow the flag that way) hey said that yes, the seizure had to be reasonable and there had to be due process, but different rules applied to American citizens who had joined an enemy’s forces than did to a just plain ordinary criminal.

    EX PARTE QUIRIN, 317 U.S. 1 (1942)

    HAMDI V. RUMSFELD (03-6696) 542 U.S. 507 (2004)

    Tennessee v. Garner, 471 U.S. 1 (1985)

    (This actually held that “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.”

    SCOTT v. HARRIS (No. 05-1631) 433 F. 3d 807

    This held that ending a car chase by forcing a car off the road was reasonable.

    These two cases which justify some strong use of force sometimes. It says there has to be balance.

    The memo said that an enemy leader who is in the business of attacking the United States whenever possible, that was an imminent threat and it was permissible to kill him to put a stop to that.

    Sammy Finkelman (9ab1e5)

  43. It appears, at least by subsequent actions, that we learned a great deal from the intell that was scooped up in the OBL raid.
    His capture, interrogation, and subsequent trial/conviction/execution, could only have been valuable if it had remained absolutely unknown until after the fact(s).
    Such a possibility, knowing the actors now over at DoJ, would be impossible.
    Personally, I believe a “drum-head” trial aboard whatever carrier he was transported to, and hanging him from a “yard’arm”, then dumping his body at sea – all of this on video – would have gone a long way to settling a score, and letting many know that “Jacksonian” Americans are serious.
    Of course, there are no “Jacksonians” in this Administration.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  44. With whom were we at war? The Saudis? Arabs? Muslims? Who makes this call and how are they restrained or held accountable?

    Al Qaida and its affiliate organizations created war between us and them. It’s not something a committee gets to decide about.

    As a lawyer would Bush have been legally justified in killing all Muslims in America?

    We aren’t at war with all Muslims. We’re at war with those who, like Awlaki, are killing Americans by planning, facilitating, or executing terrorism.

    Dustin (b2fb78)

  45. Such a possibility, knowing the actors now over at DoJ, would be impossible.

    Good point.

    Dustin (b2fb78)

  46. Machinist, you really need to read this in its entirety:

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

    It should answer all of your questions, or at least most of them.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  47. The core of Obama’s campaign was that the Bush administration’s actions were illegal and had to be reversed as a matter of moral urgency.

    We see now that Obama was simply lying – no, I don’t believe he suddenly learned something once in the White House that he didn’t or couldn’t know while in the Senate.

    He’s a liar pure and simple. And he is plainly the most dishonest, and has the least character, of any President in my lifetime. Probably since FDR.

    SPQR (d454d9)

  48. machinest

    > With whom were we at war?

    why don’t you read the authorization for military force? it comes up with a very good description of who we were at war with.

    Btw, I have to say it is amazing that someone has figured out how to make a person actually sleep for more than 10 years as apparently you have.

    Aaron Worthing (e7d72e)

  49. Machinist, why is it that you don’t understand that the AUMF post 9/11 put us at war?

    SPQR (d454d9)

  50. #46,Dustin.
    The strawmen from others are flying too fast for me to respond to, but my point was that Aaron said we were at war at that moment. I am asking who decides who “they” is. Can the President just blame whoever he wants? Rush Limbaugh?

    I am not unhappy about this jerk being killed. I am unhappy with the idea that the President has the legal right to declare any person a member of Al Qaeda and have him killed with no accountability. When a police officer kills a bad guy in defense of life I have no problem but that does not mean I want to give cart blanche to any officer to kill anyone he thinks is a menace to society. Are you saying and would you be comfortable if Obama decided that the leader of Israel was a threat and needed to be killed? Who is he accountable to? Are we a Nation of laws or men?

    Machinist (b6f7da)

  51. Comment by Machinist — 10/10/2011 @ 9:19 am

    Would you explain please, if this targeting of citizens is legal, would it have been legal to kill John Kerry when he was supporting the North Vietnamese

    No, he never took part in hostilities against the United States and never entered hostile territory either. (While the first might sometimes be not clear cut, the second is much harder to argue over)

    All that John Kerry did is tell lies about his and others’ war experiences, in the interests of his future political career in Massachusetts, where a lot of North Vietnamese propaganda had been accepted as truth.

    And we didn’t have anything like the World War I laws either and I don’t think anyone wants them.

    or Bill Clinton when he was in Moscow?

    How? Were we at war with the Soviet Union? Did he join their armed forces, or even the KGB? I don’t know, maybe he was paying off and corrupting the KGB, facilitating bank deposits abroad or something.

    Jane Fonda?

    Only if she was hit in the course of ordinary combat. She was still a unarmed civilian, even if she was temporarily embedded with a North Vietnamese anti-aircraft unit.

    Sammy Finkelman (9ab1e5)

  52. SPQR, none are so blind as those who refuse to see!

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  53. -Comment by SPQR — 10/10/2011 @ 10:21 am-

    I understand this. Does this mean that President Obama can have anyone he wants killed? If not, then what limits are there on this power. That is and has been my question from the start.

    Machinist (b6f7da)

  54. the AUMF post 9/11 put us at war

    In my view, we were in a war even if we refused to fight back. As soon as they waged war on us, we were in a war whether we wanted to be or not.

    He’s a liar pure and simple.

    He shamelessly played politics with national security with absolutely no sincerity. He lacks the character to be presidential.

    I like Machinist, and sometimes it’s good to challenge these views and rehash these arguments. We should always keep fresh in our mind why we have to do what we’re doing. And I’m glad Aaron is blogging about this, when most people are blogging about the economy and the presidential election.

    This should always be near the front of political discussion.

    Dustin (b2fb78)

  55. SF, it is still unsettled as to whether or not John Kerry, while in Paris, did or did not provide “aid and comfort” to the enemy.
    There are many unanswered question as to his conduct during that period.
    Also, there is the matter of his sealed records that he refuses to open for inspection;
    specifically why there is a date discrepancy on a document signed by President Carter v. his known time of service.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  56. Obama Mussolini is a democrap so he has an obligation to do what bush would have been verbally disemboweled.

    DohBiden (d54602)

  57. Machinist, the AUMF does not allow intentional killing of non-combatants, just like any wartime rules of engagement.

    SPQR (d454d9)

  58. Does this mean that President Obama can have anyone he wants killed?

    If they fall within the provisions of the AUMF-2001, I would think Yes!

    BTW, did you read the AUMF-2001, at the link that I provided you?

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  59. IIRC, al Awlaki was at the top of the CIA’s most wanted list, and also at the top of the FBI’s most wanted terrorist list. Often it has not ended well for people (including citizens) who were on these lists.

    elissa (af4a71)

  60. SPQR,
    If he decides Sarah Palin is an Al Qaeda member and should be killed, what stops him? Who holds him to account if he can claim his reasons are secret?

    The devil is in who defines these terms.

    Machinist (b6f7da)

  61. Elissa,
    As I have said, I have no problem with this guy being dead. I am asking the lawyers and others here if the President has the power to have anyone killed without having to answer for why.

    I dearly hope that the Constitution does not give any man that power but the answers I seem to be hearing are that he does have it. Timothy McVeigh was a mass murderer who killed children, but he could not be punished or even restrained without due process. I am asking these scholars if the President declaring a citizen a member of Al Qaeda and an armed combatant without evidence or justification makes it legal to have that person killed.

    Machinist (b6f7da)

  62. Machinist, the same thing that has detered nearly four dozen previous Presidents from doing so to date.

    SPQR (d23ae5)

  63. “I would vote for an honest patriotic democrat…”

    Me too…if there was such a thing.

    Dave Surls (28f866)

  64. This is not an obscure hypothetical. At Ruby Ridge an FBI official decided to change the rules of engagement to allow the killing of Randy Weaver without there being any threat to life of others. When a court finally heard this it found against the government. Could Obama do this and simply say he had his reasons but will not disclose them? Are you comfortable with that idea.

    Machinist (b6f7da)

  65. -Comment by SPQR — 10/10/2011 @ 10:50 am-
    “the same thing that has detered nearly four dozen previous Presidents from doing so to date.”

    And what is that Sir? Is it law or just PR? This has been my question all along. Obama has done a number of things previous Presidents did not do. Is there any legal restraint or is it just politics?

    Does he have the legal power to declare a citizen an enemy combatant and have them killed without being legally held to account? No one will answer this. They just keep saying how much this guy deserved to die or raising strawmen.

    Machinist (b6f7da)

  66. I think Weaver’s court outcome hinged more on prosecutorial/administrative abuse/malfeasance, than it did on the specific actions of any one or two government actors present on that hillside in Boundary Co.
    Now, perhaps the settlement he received from the Clinton Administration DoJ (while those actions were perpetrated by the Bush-41 DoJ) revolved upon not wishing to create a public forum for questioning of individual members of the FBI/Marshall’s Service, that is another matter.

    But, as to your “question” re Sarah Palin:
    Any attempt to deal with a political opponent in such a fashion would unleash a fire-storm unprecedented in American History,
    and could conceivable result in the shortest impeachment/conviction/removal from office, in the history of the U.S.Govt.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  67. #68,
    So you are saying it is just political PR that restrains him, not the law?

    Machinist (b6f7da)

  68. Ultimately, Machinist, the President really is largely held back only by his own restraint, politics, etc.

    Your fear of a president abusing his powers are well founded, and the checks and balanced are not well equipped to handle it. And I’m not sure we want them to be, because a bureaucracy overseeing warmaking is going to be a disaster.

    All we have is to choose presidents who are more than just smart, experienced, and ideologically favorable. We’ve got to draw a hard line on character.

    Dustin (b2fb78)

  69. Does he have the legal power to declare a citizen an enemy combatant and have them killed without being legally held to account?

    The Devil is in the Details.
    If that person falls under the parameters outlined in the AUMF-2001, then he/she could be declared an enemy combattant, and be fair-game for “sanction”.
    An Act by Congress establishes the basic ground rules here. If the President’s actions comply with those rules, then your argument is with the Congress that drafted, and approved, them.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  70. (And seriously, you do know that fully half of col’s posts are jokes, right?)

    Yes, it is the rhyming that is the serious stuff.

    rain falling on pool
    colonel bleeds from thousand cuts
    et tu, friends o’mine?

    ColonelHaiku (a4b693)

  71. But we don’t.

    If the President has the legal right to have us killed without due process then we are not equal under the law. Every man has the power to kill but we are all held accountable for using that power. Except Obama? That is just not what the founders intended. It goes against even the Magna Carta.

    Machinist (b6f7da)

  72. To answer Machinist at 66, I would say that the enemy combatant must know of his status and therefore have the opportunity to contact a lawyer and turn himself in.

    As Awlaki’s status was published in major newspapers and his father attempted to challenge it, it can be assumed that this is known. It doesn’t require a process server to file a paper in Yemen.

    Since he failed to turn himself in or make contact as a US Citizen would be required to do AND he has specifically put himself in a location where he cannot be arrested and captured by US Forces OR the local government; it is perfectly acceptable to kill him.

    Adam Gadahn, the ‘American Al-Qaeda’ would be another example. He is under indictment for treason, hasn’t made moves to turn himself over to justice, and resides in an unknown, un-extraditable location. If he should be killed by a drone strike, no problemo. He’s well aware that he’s under indictment for treason. It’s on his Wikipedia page!

    luagha (5cbe06)

  73. al Awlaki was also listed as a major threat by the head of British Intel. (In addition to the CIA and FBI.) He was an enemy combatant killed on the field of battle in the company of other enemy combatants. He was in a location and situation where capture was impossible. Would everybody who’s glad he’s dead but unhappy about “how it was done” be happier if it had been the Brits who took out al Awlaki? Maybe if the drone had had a big union jack painted on it there would be no problem? (That last statement is meant as a joke, incidentally.)

    elissa (af4a71)

  74. Machinist, we are dealing here with war, not civil discourse or disturbance.

    Did you read the AUMF-2001?

    It prescribes those that fall under its consequences.
    If the President, in his capacity as CinC, acts outside the law as written by Congress, his sanction is his impeachment and removal from office by that Congress.
    I do believe that acting contrary to the express will of, and law drawn by, Congress, would be considered (at least) a misdemeanor under the provisions of the Constitution.

    So, there is accountability.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  75. I can’t imagine impeachment being much of a deterrent if the House managers or political rivals can be declared enemies of the State and killed without evidence. Like Saddam shooting the member of Parliament.

    Sorry to rock the boat. I guess the Republic can’t survive a Chief Executive that has legal or Constitutional restraints. I’m sure we can count on Obama’s integrity and patriotism.

    Machinist (b6f7da)

  76. kerry deserved predator drone strike just for this photo!

    http://www.tonyrogers.com/humor/images/kerry_football_doofus2.jpg

    ColonelHaiku (a4b693)

  77. Comment by elissa — 10/10/2011 @ 11:15 am

    I am reminded that armorers, and aircraft crew, used to chalk messages on bombs being loaded (and I think it was not unknown for artillerymen to do so with shells, too) for delivery to the enemy.
    Who is to say that the same was not done with that “Hellfire” missile by someone in the ground-crew?

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  78. The core of Obama’s campaign was that the Bush administration’s actions were illegal and had to be reversed as a matter of moral urgency.

    We see now that Obama was simply lying – no, I don’t believe he suddenly learned something once in the White House that he didn’t or couldn’t know while in the Senate.

    He’s a liar pure and simple. And he is plainly the most dishonest, and has the least character, of any President in my lifetime. Probably since FDR.

    Comment by SPQR — 10/10/2011 @ 10:20 am

    Comment of the Day

    JD (318f81)

  79. I guess the Republic can’t survive a Chief Executive that has legal or Constitutional restraints.

    A Chief Executive who is not restrained by the Constitution presides over what cannot be called a Republic, unless it is called something like the “People’s Republic of North Korea”.

    If you truly believe that Obama has exceeded his authority, then I suggest you march yourself down to the nearest United States District Court, and file suit against the President for his actions in exceeding that authority under …(please be able to cite a specific clause in the Constitution)…!

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  80. the House managers or political rivals can be declared enemies of the State and killed without evidence.

    On a scale of one to ten, how realistic do you find that scenario?

    We’re talking about a target who actually facilitated terrorism.

    Dustin (b2fb78)

  81. Does he have the legal power to declare a citizen an enemy combatant and have them killed without being legally held to account?

    If it is actually wrong, he could be held to account.

    No one will answer this.

    Abraham Lincoln said there were certain questions (like whether a state’s secession actually took effect) that were better left unanswered.

    Either way you answer them you get trouble.

    He said that in 1865, with reference to Louisiana I think.

    I think this is it:

    http://www.historyplace.com/lincoln/reconst.htm


    “I have been shown a letter on this subject, supposed to be an able one, in which the writer expresses regret that my mind has not seemed to be definitely fixed on the question whether the seceded States, so called, are in the Union or out of it. It would perhaps, add astonishment to his regret, were he to learn that since I have found professed Union men endeavoring to make that question, I have purposely forborne any public expression upon it. As appears to me that question has not been, nor yet is, a practically material one, and that any discussion of it, while it thus remains practically immaterial, could have no effect other than the mischievous one of dividing our friends. As yet, whatever it may hereafter become, that question is bad, as the basis of a controversy, and good for nothing at all — a merely pernicious abstraction.

    We all agree that the seceded States, so called, are out of their proper practical relation with the Union; and that the sole object of the government, civil and military, in regard to those States is to again get them into that proper practical relation. I believe it is not only possible, but in fact, easier, to do this, without deciding, or even considering, whether these states have even been out of the Union, than with it. Finding themselves safely at home, it would be utterly immaterial whether they had ever been abroad. Let us all join in doing the acts necessary to restoring the proper practical relations between these states and the Union; and each forever after, innocently indulge his own opinion whether, in doing the acts, he brought the States from without, into the Union, or only gave them proper assistance, they never having been out of it.

    I think there might possibly be other contexts in which he might have expressed a similar idea, to wit: Don’t answer some legal questions.

    Sammy Finkelman (9ab1e5)

  82. JD:
    MLK Jr, was right; it’s not about the color of your skin, but the content of your character.
    And this “empty suit” is content-free!

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  83. Machinist is not arguing with some of you in bad faith. He doesn’t even know what bad faith is. How would this play out differently if the terrorist had been in North Dakota instead of Yemen?

    JD (318f81)

  84. Machinist–I believe you always try to argue fairly. Here is my question. No one disputes the facts of who al AWlaki was, and his influence/participation in aggression against the United States of America and other western countries. No one disputes that he was aware of his status, that he was not going to turn himself in, and that he was essentially hiding. No one disputes that he planned to have killed many more innocent “infidels”. How would you have solved this problem? You wouldn’t have just thrown up your hands in despair and said, “well, he is a citizen, (nominal at that) there is really nothing we can do other than stock up on more body bags for his victims”–would you?

    elissa (af4a71)

  85. machinest

    what you want is to have some magic legal document that prevents all abuses of power.

    it doesn’t exist. the president cannot be effective in war without this kind of power. is it potentially dangerous.[?] you bet.

    which is exactly why we have things like a second amendment. so that if it gets out of hand and the president tries to abuse these powers in order to render us a dictatorship, we the people can put a stop to it.

    [edited after the fact. –aaron]

    Aaron Worthing (e7d72e)

  86. Comment by JD — 10/10/2011 @ 11:32 am

    Well, I suppose they’d dust off the plans for “Medicine Bow”, and send in the FBI to arrest, or pacify, him.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  87. Comment by Aaron Worthing — 10/10/2011 @ 11:32 am

    Hey, let’s not have any of that 2nd-A rebellion talk – that’s my job!

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  88. My last word….
    Obama does not have the guts to do what Machinist fears;
    his friend Billy Ayers, on the other hand…

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  89. Comment by SPQR — 10/10/2011 @ 10:20 am

    The core of Obama’s campaign was that the Bush administration’s actions were illegal and had to be reversed as a matter of moral urgency.

    That was a small part of his campaign, and more moral than legal. It was really other people saying that. He just didn’t disagree. He did make a few promises, but without agreeing with some of the premises.

    We see now that Obama was simply lying – no, I don’t believe he suddenly learned something once in the White House that he didn’t or couldn’t know while in the Senate.

    Keeping his true views to himself is maybe a bit more like it. He does have a legalistic mind and some of this stuff he did agree with.

    He probably actually did expect to close Guantanamo – but knew enough to know that this really made no sense.

    Although the original reasons for establishing it there (to be outside U.S. law) had been ruled invalid by the Supreme Court, it still was a state of the art prison especially designed to accommodate Muslems. None of the coercive interrogations had taken place there. There had been some crude confinement but that was gone. Many prisoners there shouldn’t have been there, and others released wrongly – when you act stupidly you make both kinds of mistakes – but that didn’t have anything to do with where they were held

    He’s a liar pure and simple.

    This is definitely correct on some matters.

    And he is plainly the most dishonest, and has the least character, of any President in my lifetime. Probably since FDR.

    Really? Worse than Nixon, Carter and Clinton? I think you can even throw in LBJ. (JFK wasn’t so honest, but mostly about himself)

    You know how you can tell? You see what his political enemies attack him for. There’s not much that way about Obama – except maybe right now. Criticism of Obama does not center about him lying. (of course maybe people prefer socialist to liar as something to attack someone over)

    Sammy Finkelman (9ab1e5)

  90. Talk about dishonest – then you ought to be very disturbed by Mitt Romney. On the dishonesty scale, he’s probably higher than Obama. It’s getting clearer with time.

    Sammy Finkelman (9ab1e5)

  91. Machinist is not arguing with some of you in bad faith. He doesn’t even know what bad faith is.

    Comment by JD — 10/10/2011 @ 11:32 am

    Agreed. Machinist deserves respect, even if I don’t agree with him on this one. He’s earned it over a long period.

    Dustin (b2fb78)

  92. Sammy

    my fear with Obama isn’t that he might be dishonest, but rather that he might mean what he says.

    Aaron Worthing (e7d72e)

  93. Sammy, it’s hard to compare Obama to the LBJs and Nixons.

    Obama clearly was dishonest in his national security complaints in the 2008 election. That’s condemnable. But how dishonest is this guy?

    I don’t really even know how in control of this administration he is. I know he shamelessly tried to be all things to all people, including posing as a fiscal conservative, much as even Romney is (I find the notion questionable).

    But is Obama really in control of this administration? I think he simply didn’t have enough (any) executive experience to learn how to build a cadre of lieutenants. So he imported all these Chicago cretins while campaigning with zero sincerity. The results really are much like we have the most dishonest president in history.

    Dustin (b2fb78)

  94. He’s a liar pure and simple. And he is plainly the most dishonest, and has the least character, of any President in my lifetime. Probably since FDR.

    Say… weren’t you one of the “Keep Cool and Keep Coolidge” Kids, SPQR?

    ColonelHaiku (a4b693)

  95. Jeez, Obambi, and people like him, only do the right thing about once a century.

    Don’t complain when he actually gets something right, and sends some scumbag Muslim traitor/terrorist to hell, where all good terrorists need to go.

    Count your blessings and quit your bitchin’.

    “The death of Awlaki is a major blow to Al-Qaeda’s most active operational affiliate. He took the lead in planning and directing efforts to murder innocent Americans … and he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda. [The strike] is further proof that Al-Qaeda and its affiliates will find no safe haven anywhere in the world…”–Obambi

    I reckon that pretty well sums it up all right, and I don’t much care if killing guys like al-Awlaki is strictly legal or not. Not after thousands of Americans have been killed by Muslim terrorists over the last 40 years or so.

    If I have to rush someone to the hospital, I’m not going to drive the speed limit, because getting a sick person to the hospital is more important than following the law to the letter.

    Same thing with whacking out Al Qaida dirtbags.

    Dave Surls (28f866)

  96. What is war good for?

    That question only applies when a Repub is in office.

    DohBiden (d54602)

  97. Dave

    lol, okay maybe i should have an attitude more like John Yoo in my next post.

    Aaron Worthing (e7d72e)

  98. Would you explain please, if this targeting of citizens is legal, would it have been legal to kill John Kerry when he was supporting the North Vietnamese, or Bill Clinton when he was in Moscow? Jane Fonda?

    No, no, and yes.

    Kerry was not making war on the USA; on the contrary, while he was in Vietnam he fought for his country and against the enemy. Once he came home he exercised his first amendment right to agitate against the government’s policy of conducting the war.

    Clinton went to the USSR, a country with which the USA was never at war. Whatever he did there could not possibly be considered an act of war. Killing him, there or anywhere else, would certainly have been unconstitutional.

    Fonda went to the enemy, made common cause with them, and took part in their war effort. Had she been shot while she was posing on that tank, it would have been a legitimate act of war. Once she returned home she could and should have been tried for treason, but she could no longer be regarded as an active enemy and shot or taken as a prisoner of war.

    Milhouse (f1e4d7)

  99. she could no longer be regarded as an active enemy and shot

    [without due process of law].

    We should have tried her, convicted her, and sentenced her to death. It is no laughing matter what was happening around her, or how her actions helped those torturing and killing our pilots.

    Dustin (b2fb78)

  100. btw, note the update. i am sure Mr. Paul and Ms. Powers will appreciate having these new intellectual allies.

    Aaron Worthing (e7d72e)

  101. one major limitation is there actually has to be a declared war

    Not really. It just has to be a legal state of war, whether declared or not. The Quasi-war with France in the 1790s was not declared by either side, but it was nonetheless a legal war. And in the Prize Cases the Supreme Court ruled that the Civil War began with the first shot, not with Congress’s later declaration.

    you have to be doing something more than just saying something nice about the enemy, but actually providing aid and comfort

    “Aid and comfort” is relevant to being charged with treason, not to being subject to military action. And for a charge of treason it’s not enough to give the enemy aid and comfort, one must also adhere to the enemy, i.e. one’s motive must be because one supports the enemy and wants them to win. If one objectively aids the enemy, but for some other reason, it isn’t treason. But none of that is relevant here, because we aren’t discussing treason, we’re discussing military action against an enemy, and the standard for that is different.

    In war it doesn’t matter why the enemy is fighting, all that matters is that he’s fighting. Even if he was forcibly conscripted into the enemy army, and secretly hopes we win and his side loses, he’s still a legitimate military target. He may be killed, or he may be captured and kept as a prisoner of war, and has no right to habeas corpus. But the moment he’s charged in a civilian court with treason, his motive becomes relevant, and he can’t be convicted unless he was motivated by sincere loyalty to the enemy’s cause.

    Milhouse (f1e4d7)

  102. Are we in a state of declared war as defined in the Constitution?

    Yes. First of all, no declaration is necessary for a state of war to exist. Second, Congress did in fact declare war, so the first point is moot. After 11-Sep-2001 Congress authorised the President to take military action against the entire terrorist network, one part of which was responsible for the attacks of that day. Not just against those who actually took part in those attacks, but the entire network; and not just in Afghanistan but wherever they happen to be. That is by definition a declaration of war.

    Milhouse (f1e4d7)

  103. Did we have a declaration of war against North Vietnam?

    Yes. The Tonkin Bay resolution.

    Milhouse (f1e4d7)

  104. “Two AUMF’s are equivalent to declarations of war.”

    I’m not denying this but are they really? Under law and the Constitution?

    Of course they are. What do you think a declaration of war looks like, and how do you think it differs from these resolutions? Do you imagine that it must contain the magic words “we declare war”?!

    Milhouse (f1e4d7)

  105. We’re just talking about labels.

    War is a real thing. No turn of phrase can change it. Organized violent conflict just is war, no matter what they call it in the newspaper.

    And the USA is in war in six countries right now.

    Dustin (b2fb78)

  106. Does this mean that anyone the President decides is Al Qaeda can be killed, with no proof or accountability?

    Pretty much, just as FDR (or rather the military of which he was commander in chief) could decide who is a German or Japanese soldier, and thus a legitimate target. To whom should they have accounted for such a decision? Who else can make it but them?

    What stops him from deciding Issa is supporting Al Qaeda?

    The same thing that stopped FDR from deciding that Wendell Wilkie was a German or Japanese soldier.

    Milhouse (f1e4d7)

  107. It is about time, don’t you think Dustin?
    After all, the Islamic Republic of Iran declared war on us when they invaded sovereign U.S. territory in 1979, and Osama, speaking for AQ, delcared war on us in 1996(?); so, I would think it is about time for us to respond.

    “You can always count on Americans to do the right thing—after they’ve tried everything else.”
    Sir Winston Spencer Churchill

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  108. Comment #13, my first on this subject, I said “I’m not saying this attack was wrong”. I simply asked if the President had the legal authority to to this without justifying it. Since then I have been accused of having my panties in a bunch about him, wanting to hamstring our military, and been told how bad he was. Now who is arguing in bad faith?

    If he was that bad then there should be plenty of just cause for killing him. If there is not then how do you know he was that bad? Because Obama said so?

    I am told here that the survival of the Republic, the effectiveness of our military, and the safety of our troops all depend on Obama being given unaccountable license to have Americans killed. I call BS. There are many Sci-Fi fans here, how many stories deal with the idea of destroying freedom and individual rights to save the republic and freedom?

    We defeated the Nazis without killing Hitler, we defeated Japan without killing Togo, we defeated the North Vietnamese without killing Ho Chi Minh or Diem, we defeated the Soviet Union without killing Stalin or Gorbachev. But we can’t fight Al Qaeda without throwing out the Constitution? You will have to show me more evidence of how deadly any of these guys are before I will buy that.

    Aaron, I just asked you as a lawyer if the President has that power as you seemed to be saying. You think your ego is pricked and start dancing like you have ants in your pants and don’t answer. Damn!

    Machinist (b6f7da)

  109. “You can always count on Americans to do the right thing—after they’ve tried everything else.”

    hahahaha

    That one strikes a chord. I love my country, but yup.

    I would think it is about time for us to respond.

    Some act like we should be ashamed of winning a mortal conflict. It’s actually a pervasive theme in our culture, and it’s so weird.

    Dustin (b2fb78)

  110. Wendell Wilkie was a German or Japanese soldier

    No argument there, but I’m still not convinced about that Landon fellow.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  111. The state of Texas provides for the execution of people convicted of some crimes after due process. That does not mean the Governor can declare someone a convicted murderer and have them executed without due process or any evidence. Attempting to do so would be a crime.

    If Obama has the right under the law and the Constitution to declare an American citizen an armed combatant and have them assassinated then he has license to kill and we have no protection under the law and Constitution. How can a lawyer not see this?

    Machinist (b6f7da)

  112. Ah yes those big bad right wing hitlers…………never mind hitler demonized religion in private.

    DohBiden (d54602)

  113. If Obama has the right under the law and the Constitution to declare an American citizen an armed combatant and have them assassinated then he has license to kill and we have no protection under the law and Constitution.

    It’s not that people don’t see this. It’s that this is what it means for the President to be commander of the military.

    The protection under the constitution is that the Congress can regulate the military and also authorize force.

    Congress hasn’t authorized Obama to kill anyone he wants. It’s authorized him to use military against terrorists like Alwaki.

    Dustin (b2fb78)

  114. I think we should indeed have declared war against those countries supporting terrorism, and treated them accordingly. We lost very few troops in occupied Germany or Japan. We should have modeled our actions in the Middle East on that.

    Machinist (b6f7da)

  115. Dustin, who decides who are “…terrorists like Alwaki.”? That is the problem. Can he just designate anyone he wants as being “terrorists like Alwaki”?

    Machinist (b6f7da)

  116. “Two AUMF’s are equivalent to declarations of war.”

    I’m not denying this but are they really? Under law and the Constitution?

    The Constitution does not provide for magic words for a declaration of war. It merely states that the power resides with Congress. Congress can pick any words it wishes.

    SPQR (26be8b)

  117. I certainly agree that murderers like McVeigh should be executed, but should any policeman on the street or even the President himself be able to decide someone is guilty like McVeigh and kill them?

    Machinist (b6f7da)

  118. “I am told here that the survival of the Republic, the effectiveness of our military, and the safety of our troops all depend on Obama being given unaccountable license to have Americans killed.

    You are making this up, because no one has said that. We said that what constrains Obama is the exact same things that constrain the four dozen or so Presidents that preceded him. What do you think that was?

    SPQR (26be8b)

  119. Awlaki was a self-described member of AQ, a terrorist organization.
    No one had to designate him, he did that himself.

    And, Machinist, if you think this is the only area of governance that a President might go off half-cocked, you have a lot more to worry about.

    What kept Truman, Ike, JFK, LBJ, Nixon, Ford, Carter, Reagan, Bush-41, from just “pushing the button” and obliterating the Soviet Union?
    They had the power, every day of their terms, yet they didn’t do it.
    Why?

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  120. So the President has wartime powers as long as there is an authorization to use force in effect?

    Machinist (b6f7da)

  121. So the President has wartime powers as long as there is an authorization to use force in effect?

    Comment by Machinist — 10/10/2011 @ 2:04 pm

    I think some disagree, but that is my view. I think congress has to authorize it in some way. In emergencies, there’s that backup WPA.

    And I think barring such an authorization, or a dishonest application of it, would be illegal. If Obama decided to blow me up even though I’m not a terrorist, and claimed he was authorized by the AUMF, that would be illegal.

    Dustin (b2fb78)

  122. -Comment by SPQR — 10/10/2011 @ 2:02 pm-“what constrains Obama is the exact same things that constrain the four dozen or so Presidents that preceded him. What do you think that was?”

    I believe it was the law and the Constitution. That is why this concerns me.

    So do you believe the President has the legal authority to order someone killed without citing the law or the evidence?

    Machinist (b6f7da)

  123. I will mention that both Truman, and JFK, harrassed the Steel Industry over prices – Truman actually losing a case at SCOTUS over this.
    IIRC, RFK as AG had the FBI serve subpeanas on senior execs of the steel majors in the dead of night, just because he could – and wished to get their attention (Nice little steel company you got there, be a shame…).

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  124. Can he just designate anyone he wants as being “terrorists like Alwaki”?

    Comment by Machinist — 10/10/2011 @ 1:59 pm

    Wouldn’t that be a high crime? A murder if he carried out an airstrike on someone who wasn’t a terrorist?

    Anyway, at the end of the day, sure, Obama could go beyond what is legal, and those mistakes can carry a bodycount. I believe this is what Fast and Furious amounts to. We are aiding and abetting terrorism in Mexican drug cartels by arming them, after all.

    That’s why we need moral Presidents.

    But it’s not like Obama is just blanket covered to kill anybody senselessly.

    Dustin (b2fb78)

  125. that would be illegal.Comment by Dustin — 10/10/2011 @ 2:06 pm

    But everyone you’ve pissed off would stand and cheer (Heh!).

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  126. “If Obama decided to blow me up even though I’m not a terrorist, and claimed he was authorized by the AUMF, that would be illegal.”

    Then you have no due process rights or even basic human rights to life, liberty, and pursuit of happiness. I refuse to believe the founders put that in the Constitution. Everything they wrote that I’ve seen goes against it. This is the power of the worst despots or God himself. No American government official was ever intended to have this power.

    Machinist (b6f7da)

  127. Fast & Furious, to this observer, constitutes a High Crime!

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  128. Machinist, what do you mean you “believe it was the law and the Constitution” ? That is the source of the powers being exercised. Nothing has changed since Washington led the Continental Army against the British, ordered out the Army against the Whiskey Rebellion, Jackson fought Indians, Lincoln commanded the Union Army in the Civil War, etc.

    The constraint on the President has always been that if they exceeded their authority and ordered people killed illegally and intentionally, they could be impeached and tried criminally.

    SPQR (26be8b)

  129. “But it’s not like Obama is just blanket covered to kill anybody senselessly.”

    Didn’t you just say it would be legal for him to kill you? If you are not worthy of the right to life then who is?

    Machinist (b6f7da)

  130. But everyone you’ve pissed off would stand and cheer (Heh!).

    Comment by Another Drew – Restore the Republic/Obama Sucks!

    That’s getting to be a bona fide demographic.

    Dustin (b2fb78)

  131. Didn’t you just say it would be legal for him to kill you? If you are not worthy of the right to life then who is?

    Comment by Machinist — 10/10/2011 @ 2:14 pm

    NO. The authorization to use military force does not apply to me, because I’m not facilitating terrorism in any way.

    Dustin (b2fb78)

  132. -Comment by SPQR — 10/10/2011 @ 2:12 pm-
    “The constraint on the President has always been that if they exceeded their authority and ordered people killed illegally and intentionally, they could be impeached and tried criminally.”

    I agree, but the argument being made is that he has the legal power to do this and does not even have to cite what law gives him that power. I have the power to kill. It is the President’s legal power to do that without due process or accountability that is the problem or question.

    Machinist (b6f7da)

  133. You see, this is a great dichotomy present in the Constitution.
    We make the President Chief Executive, and charge him to ensure that the laws are faithfully executed, and then make him Commander-in-Chief, with the power of life and death over the Nation’s enemies.
    And, in an emergency situation, he has this power absent any Declaration of War (in any form); which is why the War Powers Resolution was passed, so as to provide Congress with some restraining power – which this President ignored in his activities in Libya.
    The President is a combination of King and Prime Minister, which is why the content of his character is so important.
    There is no possible way to pass law that will constrain every bad impulse that a President may have. We have law against murder, and provide for the death-penalty for that act, but that does not deter everyone from committing such crimes.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  134. “NO. The authorization to use military force does not apply to me, because I’m not facilitating terrorism in any way.”

    What if Obama says he has secret evidence that you are?

    Machinist (b6f7da)

  135. Comment by Another Drew – Restore the Republic/Obama Sucks! — 10/10/2011 @ 2:17 pm-

    Power is not what corrupts. It is immunity that corrupts. Of course the President has the power to kill. We are discussing his accountability for that. If he has the legal power to declare people enemies of the state and have them killed without citing the source of that authority or the evidence, then he is immune.

    Machinist (b6f7da)

  136. The President is not King or Prime Minister. Obama needs to be reminded of that. We should not.

    Machinist (b6f7da)

  137. Machinist, there has never been “due process” for combat operations. There were no trials for the residents of Hamburg before the 8th Air Force dropped bombs on them. There were no trials of Japanese before the bomb was dropped on Hiroshima and Nagasaki. There were no trials before firing upon American citizens serving in the Confederate Army, the German Army in WWI and WWII, etc. Why do you think otherwise?

    SPQR (26be8b)

  138. It is the President’s legal power to do that without due process or accountability that is the problem or question.
    Comment by Machinist — 10/10/2011 @ 2:17 pm

    BUT, he is accountable under the Constitution.
    What part of the Impeachment Powers of the Congress do you not understand.

    Now, do you mean there is nothing to stop him beforehand, you may very well be correct; just as there is nothing to stop the NYT from publishing the Pentagon Papers, even though there were many in DoJ that were convinced that there was sufficient evidence that they could take to trial and win after the fact (and the pols declined to pursue that prosecution).
    I would remind you that as per SCOTUS precedent, there is no duty of govt to protect you from an individual threat (See: Reginald Oliver Denny); only from the threat of enemies of the Consitution, both foreign and domestic.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  139. Who said I did. These were military operations against an enemy nation in a declared war.

    Even there we recognize rules, hence war crimes trials, but this was not a combat operation against an enemy state. Why do you think otherwise?

    Machinist (b6f7da)

  140. What if Obama says he has secret evidence that you are?

    Comment by Machinist

    I already used the word illegal in the comment you understood in the opposite of what I intended.

    If Obama lies to say he has secret evidence I’m a terrorist, then kills me, that’s murder of course.

    Is the President situated in a position of trust, and more able to get away with things like that? Yeah.

    But I already answered this would be illegal 3-4 times now.

    It’s no different than a police officer murdering a person for no reason and then planting a weapon on the victim’s body.

    Dustin (b2fb78)

  141. Machinist, there is no requirement that the combat operations be against an “enemy nation”. The US recognized the power of the armed forces to fight pirates on the high seas, and even to execute them in summary judgment – no “due process” when found.

    These are very old ideas that you seem to believe someone new or recent.

    SPQR (26be8b)

  142. This whole debate is about rather the Constitution gives him that power and people seem to be saying it does. I don’t believe that.

    Machinist (b6f7da)

  143. I didn’t say that he is either King, or PM; I just said that in the way the Founders organized the govt under the U.S.Constitution, he – the President – is an amalgam of both.
    And, I have no idea if Obama thinks of himself as either, and there are enough pundits in DC to remind him that he isn’t.
    I think George Will does so weekly.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  144. And could the President simply claim that an American citizen was a pirate and have him assassinated? When was this ever done?

    Machinist (b6f7da)

  145. Machinist, whatever you believe, you are the one that is inventing some new “right” to “due process” for combatants in the field. A right never before recognized in our country’s history. Even once in custody, the US Supreme Court in WWII found no constitutional rights to due process for an enemy combatant who was a US citizen – In Re Quirin.

    SPQR (26be8b)

  146. If an American Citizen was carrying out piracy on the high seas, under the ROE in the 19th-Century, he would be hunted down and most likely, if he survived the initial contact – hung from the highest, widest, yard’arm on whatever vessel captured him.
    Pirates and Brigands were subject to Summary Execution virtualy wherever they were found, at that time.
    Today, we have piracy in both the Straits of Sumatra, and off the Coast of East Africa, and it seems to thrive because, with a few notable exceptions, we have used legal mechanisms instead of “kinetic military action”.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  147. “The President is a combination of King and Prime Minister”

    Did I misread that?

    A king is a totalitarian ruler who does not answer to the people. Even some of them were constrained in killing their citizens by law.

    A prime minister is head of a political party holding power in Parliament, not an executive elected by the people. You can’t have a Prime Minister who faces a majority opposition in the legislature and the party can change the Prime Minister after an election, I think.

    Our executive was unique in the time. Our Republic and Constitution were and still are so.

    Machinist (b6f7da)

  148. An American caught fighting for the enemy on the battlefield would also be subject to such, but what combat operations were taking place in the country where he was killed?

    So does Obama have the legal authority to bomb Hamburg today?

    Machinist (b6f7da)

  149. “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. ” Quirin, 317 US 1, 37 (1942).

    SPQR (26be8b)

  150. Machinist, under the AUMF, the President was authorized to pursue terrorists globally.

    SPQR (26be8b)

  151. SPQR, and Obama can legally declare anyone he wants to be an enemy belligerent? Like Sarah Palin?

    Machinist (b6f7da)

  152. Machinist, you keep repeating that and I keep telling you that you are misrepresenting what I’ve written.

    What does it take to get through your head that your wrong to keep writing that? No one is claiming that.

    SPQR (26be8b)

  153. and Obama can legally declare anyone he wants to be an enemy belligerent?

    No.

    He can legally pursue actual terrorists. The AUMD authorizes THAT. If he isn’t pursuing actual terrorists, then it’s not authorized. It has nothing to do with what Obama is declaring. It has to do with whether they are actual terrorists.

    That’s why it’s OK to blow Awlaki up, and not myself. One is an authorized military action, the other is murder. If Obama claimed the AUMF covered blowing up an innocent person, that wouldn’t mean it did. What matters is solely whether or not the target actually is one of the bad guys as described in the AUMF, which is why the Awlaki strike is lawful.

    Dustin (b2fb78)

  154. “Machinist, under the AUMF, the President was authorized to pursue terrorists globally.”

    If I am mis-stating your position then who decides who is a terrorist in your statement?

    Machinist (b6f7da)

  155. Dear Mr. Machinist:

    Why didn’t Awlaki arrange a negotiated surrender to go to trial when he learned that he was on the list to be targeted and his father was taking the US to court over it?

    PS. This is why the President can’t put someone in North Dakota on a terrorist list and have them assassinated. Well, unless it’s a Democrat president with a majority in the Senate.

    luagha (5cbe06)

  156. Comment by Machinist — 10/10/2011 @ 2:34 pm

    I do not say that he is, but his functions are an amalgam of the two types of officer.
    The President is Chief of State/Commander-in-Chief as would be a King (and not all Kings are tyrants – would you so describe Elizabeth-II as such?);
    The President is also Chief Executive Officer of the Government (as is a PM), but – and a very big but – he is separate from the Legislature as he is independently elected (there’s that inconvenient Separation of Powers thingie that Justice Scalie is all hung up about), and is ultimately accountable to the voters, and can ignore the Legislature, unless they fail to fund his govt, or he gets tangled up with those “Treason, High Crimes, and Misdemeanors” technicalities.
    It is why we saw that he had to ask the Speaker of the House for permission to address the Members, and could not just command their attention.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  157. Dustin, who decides who is a terrorist with no due process? If it is not the President then who is making this call?

    Machinist (b6f7da)

  158. Oops….Scalia

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  159. Machinist–what would you have done differently as president? Would you have tried to stop al Aklawi in some other manner or ignored him?

    I will add this (my opinion only): If, as you appear to posit, America is unable to remove a self-described enemy of the United states who coincidently happened to be a “citizen” only because he was born in the US (to non-citizen parents), then perhaps we need to examine and re-evaluate who and how, people become citizens with all the rights and obligations therewith.

    elissa (af4a71)

  160. Who decides?
    The President decides in the name of the Government and the American People.
    If he decides wrongly, he is accountable in a court of law, or the House of Representatives and then the Senate.
    But, the only prior restraint on his actions are what is in his heart; and no amount of legislation can change that.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  161. “I do not say that he is…”
    “The President is a combination of King and Prime Minister”

    Hard to reconcile these two.

    I never used the word “tyrant”. Do you consider her a chief executive? I think she is a figurehead so she hardly applies. In the founders day there were real Kings with real power, even where constrained by law.

    Machinist (b6f7da)

  162. Dustin, who decides who is a terrorist with no due process? If it is not the President then who is making this call?

    Comment by Machinist — 10/10/2011 @ 2:48 pm

    Due process?

    What are you talking about? We blew a self described enemy up. This didn’t happen anywhere the US Constitution has jurisdiction. What process are you thinking was due? There’s none. He was killing our people via his intermediaries. We killed him back.

    Obviously, commanders of the military generally decide who is a threat worth killing with the military’s weapons. The 52%ers decided they wanted to give Obama command discretion over the military in a time of war, but as far as I’m concerned, this is something that a lot of people have discretion over because we have a military based on personal initiative.

    Ultimately, the president is responsible for commands, and the congress for regulating the military. There very much is plenty of check and balance in that process. If you think the AUMF should cover self avowed and proven deadly terrorists, you can ask your congressman to amend the AUMF, for example.

    Dustin (b2fb78)

  163. rather, if you think the AUMF should NOT cover those folks, you can ask to have it changed.

    Dustin (b2fb78)

  164. Comment by Machinist — 10/10/2011 @ 2:54 pm

    You continually misconstrue what I have said, or you are just so pig-headed that you refuse to acknowlege it.
    The President is not a King, and he is not a Prime Minister;
    but his job (as given him by the Founders) entails features of both, unique to the world of politics and governance.
    Do you not understand the uniqueness of the American System and its Separation of Powers; which are the checks built into the system to ensure that no branch of government can become so powerful as to usurp the Freedoms, Liberties, and Sovereignty of the American People?

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  165. Machinist, who decides who is an enemy combatant at any time? The soldier on the ground through his chain of command follows his rules of engagement. Just like always.

    SPQR (26be8b)

  166. #160,Comment by elissa — 10/10/2011 @ 2:48 pm-

    Ma’am, if you look back to #13, my first comment, I said “I’m not saying this attack was wrong”. The people who keep pointing out how bad this guy is are throwing up strawmen. I asked Aaron, as a lawyer, if he believed that Obama really has the legal authority to order an assassination of an American citizen without due process or even citing evidence or the law giving him this power. I never said this hit was wrong or illegal. I asked a straightforward question. If Aaron believes that the Constitution gives Obama this right than I disagree but he won’t answer the question, preferring to dance around.

    The argument keeps coming back to the Presidents power to attack terrorists but who decides who is a terrorist? Obama? Holder? Big Sis?

    Machinist (b6f7da)

  167. Machinist, I suggest you read the AUMF that Drew linked.

    Once you’ve read it, tell us if it’s legal for Obama to blow up Alwaki.

    Obviously as the commander of the military, it is up to him to enforce the AUMF, which I think is what you’re referring to as ‘declaring someone a terrorist’, though I think that needless complicated this matter, since Alwaki was provably a terrorist by his own word.

    Read the AUMF and tell us, is there a legal difference between blowing up Alwaki and just declaring an innocent person a terrorist in order to blow them up. I think the answer is clearly yes.

    That doesn’t mean your concerns are crazy. We do need to keep in mind just how serious it is to elect a man president.

    Dustin (b2fb78)

  168. Comment by Machinist — 10/10/2011 @ 2:54 pm

    “…A king is a totalitarian ruler who does not answer to the people…”

    This is as close to a “tyrant” as I want to be.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  169. -Comment by Another Drew – Restore the Republic/Obama Sucks! — 10/10/2011 @ 3:00 pm-

    “You continually misconstrue what I have said,”

    I quoted you.

    Machinist (b6f7da)

  170. Machinist, can a police officer kill a suspect in the middle of an armed robbery “without due process” ? Can you or I kill someone who is threatening us with deadly force or grave bodily harm “without due process” ? Or must we obtain a court’s permission in advance, which has weighted the evidence of whether or not the armed robber has actually committed a crime?

    SPQR (26be8b)

  171. I think she is a figurehead

    No matter what the title, in many (most) EU nations, this constitues the Head of State, which on the protocol scale is equal to our President.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  172. Machinist is displaying the Mark of the Troll, with his circular reasoning/questioning, and continueal goal-post relocations.

    I’m done with him.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  173. That is why I did not use the term “Head of State” as it can be ceremonial. I said Chief Executive, which a figurehead is not.

    Machinist (b6f7da)

  174. I quoted you.

    Comment by Machinist

    You also paraphrased my comment precisely opposite of what I said, claiming I said something was legal when I used the word “illegal” plain as day.

    I see you’ve got a difference of opinion about how serious this is, but I don’t understand why you don’t understand the other argument.

    Dustin (b2fb78)

  175. We have seen House Republicans and TeaPartiers described as enemies, terrorists, kidnappers, etc …

    JD (352bcf)

  176. “the Mark of the Troll”

    Like pointing out that your own quotes contradict each other. Guess so. Odd that somehow the point I am making now is the same one I was talking about in #13, while others have ranged far and wide to the whiskey rebellion, the civil war, the nuking of Japan, and the Queen of England.

    Mac the Troll

    Machinist (b6f7da)

  177. We have seen House Republicans and TeaPartiers described as enemies, terrorists, kidnappers, etc …

    Comment by JD — 10/10/2011 @ 3:09 pm

    Ya know, you have a point.

    Napolotiano had that thing about vets being potential domestic terrorists and we all see what Bloomberg had to say about the time square bombing attempt.

    That’s why I say I understand Machinist’s concerns. But it’s not legal to do what she’s worried Obama could do. That’s my point. There is an obvious distinction.

    Dustin (b2fb78)

  178. -Comment by Dustin — 10/10/2011 @ 3:08 pm-

    Please explain. If I misstated your opinion It was a mistake and I will apologize.

    In Drew’s case I put his two contradictory quotes side by side. I can’t be expected to properly state his position if he doesn’t know it himself.

    Machinist (b6f7da)

  179. Machinist, I thought you had just gotten yourself confused, but I’m leaning toward the idea that you are trolling.

    SPQR (26be8b)

  180. I am not, but I can’t convince you it seems. Why do you accuse me of this?

    Machinist (b6f7da)

  181. Why do I try????

    We defeated the Nazis without killing Hitler, we defeated Japan without killing Togo, we defeated the North Vietnamese without killing Ho Chi Minh or Diem, we defeated the Soviet Union without killing Stalin or Gorbachev. But we can’t fight Al Qaeda without throwing out the Constitution? You will have to show me more evidence of how deadly any of these guys are before I will buy that.

    Hitler offed himself;
    We hung Tojo for war-crimes;
    We did not defeat the North Vietnamese (politically), or else there would be a nation of South VietNam today;
    Diem was on our side, and we, in effect, had him assassinated in a coup directed from the office of the U.S.Ambassador, Henry Cabot Lodge;
    We didn’t have to kill Stalin or any other Soviet leader as they were perfectly capable of “eating their own” – anyway, it was an economic/ideological war, not a shooting war; which is why they called it The Cold War;
    No one has thrown out the Constitution. You’re starting to sound like the BDS troops saying how Bush was going to suspend elections, declare himself President-for-Life, etc. We haven’t even suspended Habeaus Corpus as was done (allegedly) by Lincoln in the War of Northern Aggression(sic).
    More evidence? Didn’t you watch the Twin Towers collapse?
    Didn’t you see the scar in the outer ring of the Pentagon (and the next ring in too IIRC)?
    Didn’t you see the debris field in PA?
    Haven’t you read the casualty reports from Iraq and Afghanistan?
    Did you see the list of Killed & Wounded from Fort Hood?
    Have you been living under a rock the last 10 years? Not to speak of the KIA on the USS Cole, or the lives lost at the two East Africa Embassies.

    My God! man, open your eyes and see what is trying to kill you and yours.
    It is fools such as you that drive good men to drink.
    But, if it will make you feel any better, we’ll post an armed guard outside your bedroom door to ensure that the monsters stay away.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  182. Machinist is as much of a troll as epwj is honest.

    JD (352bcf)

  183. In Drew’s case I put his two contradictory quotes side by side. I can’t be expected to properly state his position if he doesn’t know it himself.

    What two contradictory quotes?
    Please post again.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  184. #162
    “I do not say that he is…”
    “The President is a combination of King and Prime Minister”

    Hard to reconcile these two.

    I never used the word “tyrant”. Do you consider her a chief executive? I think she is a figurehead so she hardly applies. In the founders day there were real Kings with real power, even where constrained by law.

    Comment by Machinist — 10/10/2011 @ 2:54 pm

    Machinist (b6f7da)

  185. I did not post at Comment #162.
    And, if you’re going to quote me, the least you could do is include entire sentences for context.

    Try Again.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  186. ==who decides who is a terrorist? Obama, Holder, Big Sis?==

    Sir, it’s one thing to talk in theory and generalities about who decides who’s a terrorist, especially if they’re a citizen and might plausibly deny it. That’s a decent discussion to have. But this deal with al Awlaki is not theory. It’s specific. He himself said he was a terrorist and an enemy of the US. On TV. At that point it was no longer a case of “who decides” or “how do you decide”. It became a case of: he admits it and is proud of it–now how to handle it before more innocents die.

    That is why I, and I believe several others have asked how you would have handled this specific case. You said up @ 13, “I’m not saying this attack was wrong”. Yet, @165 you state “If Aaron believes that the Constitution gives Obama this right than I disagree.” I just can’t figure out how to reconcile those two apparently conflicting statements about presidential power.

    elissa (af4a71)

  187. Most of the opinions and positions being attributed to me seem to be others’ opinions of what I seem to be saying or seem to believe rather than things I have said. I guess if you do that enough I can be a troll or just about anything else one cares to call me.

    Machinist (b6f7da)

  188. Machinist, in a war somebody has to be able to identify who belongs to the enemy; and if not the president then who?

    Milhouse (ea66e3)

  189. “And, if you’re going to quote me, the least you could do is include entire sentences for context.

    Try Again.”

    Glad to.

    #162 is where I put your quotes side by side. Full sentences below.

    “The President is a combination of King and Prime Minister”

    “I do not say that he is, but his functions are an amalgam of the two types of officer.”

    “I didn’t say that he is either King, or PM; I just said that in the way the Founders organized the govt under the U.S.Constitution, he – the President – is an amalgam of both.”

    Better?

    Machinist (b6f7da)

  190. To answer Machinist at 66, I would say that the enemy combatant must know of his status and therefore have the opportunity to contact a lawyer and turn himself in.

    Really? Do you really think every Japanese soldier could “contact a lawyer and turn himself in” to the US forces, and that the legitimacy of targeting him depended on that ability?!

    Milhouse (ea66e3)

  191. #188,”Machinist, in a war somebody has to be able to identify who belongs to the enemy; and if not the president then who?

    Comment by Milhouse — 10/10/2011 @ 3:32 pm”

    First, I have been asking if the President has this power, not saying he should not.

    Second, the President should not be able to order an assassination of an American citizen without citing the law that gives him the authority and the justification for it.

    Are you saying the President can and should be able to have any American killed that he thinks is guilty or an enemy of the state? Based on his opinion only?

    Machinist (b6f7da)

  192. Machinist nobody is saying that the President can and should be able to have any American killed based on his opinion only.

    If someone is killed as a combatant, and it can be shown that the person killing them, or the person ordering it, knew that they were not, then they’d be guilty of a crime and could be punished for it.

    Why do you not acknowledge this?

    SPQR (26be8b)

  193. What constrains any president from ignoring the law? Only the fear of losing the next election, or of impeachment. And if he’s on his second term, and his loyalists control either the House or at least 1/3 of the Senate, then he needn’t fear either of these things. So what constrains him? Only his conscience, pretty much.

    Milhouse (ea66e3)

  194. And what is contradictory about those?

    “The President is a combination of King and Prime Minister”
    “I do not say that he is, but his functions are an amalgam of the two types of officer.”
    “I didn’t say that he is either King, or PM; I just said that in the way the Founders organized the govt under the U.S.Constitution, he – the President – is an amalgam of both.”

    Perhaps you would have like it better if I said “the Presidency”, rather than “the President”?
    The Presidency combines the functions of Chief Executive, and Head of State; as the former it mimics the PM in a Parlimentary System, and the latter it mimics the Crown in a Consttutional Monarchy. But, it is neither, and the powers of the Presidency are separate from those of the Legislature; as The Presidency cannot impinge on the powers of The Legislature, neither can The Legislature impinge on the powers of The Presidency.

    Satisfied?

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  195. #186 Comment by elissa — 10/10/2011 @ 3:30 pm-

    I have been trying to explain that there seems to be ample justification for declaring this man an enemy and targeting him. This operation seems like it would stand on it’s own, though I do feel that even here the President seems to be saying he does not have to cite the law that gives him the authority to kill without due process. Others keep pointing out possible rationalizations or authorizations but the President has not claimed them has he? “Trust me” is not sufficient with him. My concern is that Aaron seems to be arguing not that this man should have been killed, but that the President has the power to designate anyone as a terrorist and have them killed. This is what I have a problem with. This is what I have been talking about. I do not believe the Constitution gives him this power but I am uneducated and not a lawyer. I asked Aaron as a lawyer if this is what he was saying but I just keep hearing how bad this guy was. That is outside the point.

    McVeigh was a terrible man and deserved to die, but remember the poor security guard in Atlanta, Richard Jewel? Accused of being the bomber, accused of having “bomb making material” in his garage? Turned out that was duct tape and nails. The fact that one killing was justified is no reason to open the doors.

    Machinist (b6f7da)

  196. …and, on my screen, Comment #162 was posted by Dustin.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  197. #190, I hope you are not asking me because I said nothing of the kind. Who are you quoting?

    Machinist (b6f7da)

  198. OK, at this point, Machinist, your wilful refusal to recognize what’s going on has caused me to cease considering you serious.

    The difference between that and trolling I’ll leave to others to sort out.

    SPQR (26be8b)

  199. We defeated the Nazis without killing Hitler, we defeated Japan without killing Togo, we defeated the North Vietnamese without killing Ho Chi Minh or Diem, we defeated the Soviet Union without killing Stalin or Gorbachev. But we can’t fight Al Qaeda without throwing out the Constitution?

    1. Do you imagine that the constitution prevented us from killing all those people? Or that we would have passed up an opportunity to kill them had it presented itself? I’d say that had FDR passed up an opportunity to kill Hitler or Tojo he should have been impeached and perhaps even executed.

    2. What’s Diem doing in that list? a. he was an ally, not an enemy; and b. we did kill him, or rather we (that is JFK) had him overthrown, which led directly to his death.

    Milhouse (ea66e3)

  200. “Satisfied?”

    OK, that sounds much more like what I said than what you said. You accused me of misconstruing what you said and I posted your quotes that he was and was not the Prime Minister and the King. I don’t think your accusation was justified.

    Machinist (b6f7da)

  201. Both Congress’s 2001 Authorization to Use Military Force and 10 U.S.C. sections 331–335 give the POTUS the authority to take out a bad guy like al Awlaki,as he was an avowed member of a foreign enemy (al Qaeda) our nation is at war with under the auspices of Congress’s authorization of military force.

    ColonelHaiku (a4b693)

  202. #199,
    Diem was my mistake, I was thinking of the General in charge of NV forces. Sorry.

    I am sure we would have killed all of them and I fully support it. My point was that we don’t have to assassinate anyone thought to be Al Qaeda to fight terrorism. Where the evidence supports it then go for it but cite the authority and justification. Secrecy in this does not work.

    Machinist (b6f7da)

  203. SPQR, what have I not responded to fast enough. How many people am I answering? What point would you like addressed and I will respond to you next.

    Machinist (b6f7da)

  204. #201, I’ve lost tract of how many times I have agreed that Awlaki was a bad guy. My question was not about him. Would you care to explain why we were justified in going to war with Japan? I am not disputing that either.

    Machinist (b6f7da)

  205. -Comment by Another Drew – Restore the Republic/Obama Sucks! — 10/10/2011 @ 3:55 pm-
    “…and, on my screen, Comment #162 was posted by Dustin.”

    On mine it is still my comment.

    Machinist (b6f7da)

  206. So do you believe the President has the legal authority to order someone killed without citing the law or the evidence?

    To whom do you think he has an obligation to cite these things? He has no obligation ever to speak a word to the press or the public; they have no role in the constitution. If he is called to account before the House, in an impeachment trial, he would certainly have to produce the evidence. To whom else is he ever accountable, for anything?

    Milhouse (ea66e3)

  207. Then, I would suggest, you post the time-stamp, such as:

    Comment by Machinist — 10/10/2011 @ 4:12 pm

    It eliminates all ambiguity.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  208. Machinist – I don’t know whether you are having fun or not, but you certainly have people tied up in knots.

    I see two things going on regarding your concern over accountability. The first is that Obama did follow a process in reaching his decision to issue an assassination order on Alwaki. There were people involved in researching his activities and the law before the order was issued. That makes it a different situation that Obama just waking up one day and unilaterally ordering a hit on Sarah Palin. By all accounts the established a policy and followed it.

    Secondly, members of the military are not obligated to follow illegal orders. The scenarios you floated about killing Kerry and others might start with a presidential order, but would checks and balances prevent them from being carried out?

    The ultimate accountability as others have pointed out is impeachment. A president can try to do whatever her wants. Getting away with it is another matter.

    daleyrocks (bf33e9)

  209. “To whom else is he ever accountable, for anything?”

    The law. He is not above the law. They might have to impeach him first but he would then have to face the law. In any case when his term was up he would be accountable. This argument is about his legal authority. If as is being said he can legally order an assassination and not cite the law that gives him that authority than he would not face prosecution after his term or after impeachment because he would be exercising his lawful authority. My point is that I don’t believe the Constitution gives him such lawful authority.

    Machinist (b6f7da)

  210. And where are the leftists screaming “no person shall be deprived of LIFE” in front of an abortion clinic?

    Oh wait, THAT is OK with them. So no wonder their lord and savior Obowmao gets to choose who gets killed next. That’s all the pro-aborts stand for – the choice to kill next.

    BK (a3bbbd)

  211. My point is that I don’t believe the Constitution gives him such lawful authority.

    A belief unsupported by any citation to authority itself.

    SPQR (26be8b)

  212. -Comment by daleyrocks — 10/10/2011 @ 4:18 pm-

    No, this is not fun. I don’t like being called a liar, a troll, or the other things I have been called.

    What you describe is what should be, but others are claiming he does have the authority and so his orders would in fact be legal. THAT is what I am challenging. If Aaron does not think he has this authority then why didn’t he just say so. I won’t address the Alwaki hit again. It is not what I am concerned about as I have said many times.

    Machinist (b6f7da)

  213. Comment by Machinist — 10/10/2011 @ 4:20 pm

    Then, I repeat, march your butt down to the nearest U.S.District Court, and file suit.

    Otherwise, all you are is a rabble-rouser in search of a mob.

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  214. I don’t like being called a liar, a troll, or the other things I have been called.

    Then stop acting like it.
    If it walks like a duck, quacks like a duck, and looks like a duck; there’s a damn good chance it’s a duck!

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  215. -Comment by SPQR — 10/10/2011 @ 4:25 pm-

    I don’t think he has the authority to order hits on American citizens in less in fact it is stated as such. The Constitution limits government, not citizen’s rights to live. Right? Is anything OK if the Constitution does not say the government can’t do it? I think it is incumbent on those claiming the right of the President to kill people to cite the authority.

    Machinist (b6f7da)

  216. Fine.

    Machinist (b6f7da)

  217. The Presidency has wide authority of action as CinC, in the face of a threat to National Security.
    As I and others have said before, the only thing that keeps Presidents from jumping off the deep end is their own moral code, and their respect for our form of government.
    Now, if you wish to argue that the present occupant of that position has no moral code, or no respect for our form of government/governance, or both; there are more than a few who would agree with you.
    But, if you keep circling back to how can the President make these decisions, and who/what authorizes him to do so, I can only reply:
    Asked, and Answered!

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  218. Because only if a US code section is stenciled in white paint to the side of the drone is the targeting of Alwaliki legal.

    SPQR (26be8b)

  219. machinist:
    I’m going to be charitable and not presume you’re having the time of your life irritating us.
    Here’s the point. The pres ordered a terrorist killed.
    What about the terr’s being an American is an issue? In other words, what should have been done differently than in a case where the terr was not American?

    Richard Aubrey (a75643)

  220. That sounds fair to me, SPQR!

    Another Drew - Restore the Republic/Obama Sucks! (bdde46)

  221. “No, this is not fun. I don’t like being called a liar, a troll, or the other things I have been called.”

    Machinist – No, I don’t imagine you do, but you’ve really forced people to think, for which I congratulate you sir.

    daleyrocks (bf33e9)

  222. Machinist – In some ways I see it like committing large scale fraud at a big corporation. Typically it requires some degree of collusion along the way. If an ethical person discovers what is going on, the schemes blow up.

    daleyrocks (bf33e9)

  223. “NO. The authorization to use military force does not apply to me, because I’m not facilitating terrorism in any way.”

    What if Obama says he has secret evidence that you are?

    I don’t understand what you’re asking. If you’re asking whether he has the legal right to kill someone who is not an enemy of the USA, then the answer is no, he doesn’t. “What if he says” is irrelevant; it doesn’t matter what he says, the only thing that matters is the truth. The fact that he can lie about it doesn’t change what the law is. Even if he can get away with breaking the law, that doesn’t change what the law is.

    So if you’re asking “what if he says”, then you’re not asking about the law, but about what he can get away with. And in that case I ask you in return to whom is he doing this “saying”? Who do you imagine is calling him to account, and before whom he is making this claim? Other than the House in an impeachment trial, he doesn’t have to account to anybody.

    Milhouse (ea66e3)

  224. Power is not what corrupts. It is immunity that corrupts. Of course the President has the power to kill. We are discussing his accountability for that. If he has the legal power to declare people enemies of the state and have them killed without citing the source of that authority or the evidence, then he is immune.

    And if he doesn’t? How would that make him less immune? Who is going to call him to account for breaking the law, if he does so?

    Milhouse (ea66e3)

  225. Who said I did. These were military operations against an enemy nation in a declared war.

    Even there we recognize rules, hence war crimes trials, but this was not a combat operation against an enemy state.

    What difference does it make whether the enemy is a state or not? Since when can we only be at war with states?

    Milhouse (ea66e3)

  226. Millhouse.
    Problem with being at war with states, or with something else, is the presumption that lines on a map delineate sovereign countries. Sovereign countries are sovereign over all–emphasize “all”– of their territory. Hence the term, I suppose. Governments not in control of parts of their countries are not sovereign over those parts which they do not control. So the actual question of going to war with a state is tricky in some places. If, say, Yemen does not control part of its territory, has no prospect of doing so and seems to have adjusted to the idea, then are they actually sovereign over that territory? If not, terrs don’t get to hide behind it making faces and yelling neenerneener. If, on the other hand, someone insists they are sovereign over that area, then we can expect them to control it and take care of the terrs. Failure to do so is culpable. So maybe some folks should think twice about insisting on sovereignty of places like Yemen and large parts of the Sahel, for example, and Pakistan’s tribal areas.

    Richard Aubrey (a75643)

  227. Let’s leave the arguments against raining death from the skies down on known terrorists to the leftwing lawyers. God knows, we have enough of them.

    ColonelHaiku (a4b693)

  228. A President calling for a hit on an American and saying his reasons or justifications are secret are another matter.

    One close analogy is the ancient legal tradition of outlawry.

    Bill explains what outlawry is.

    A nithing was devoid of all human rights, and he was considered the enemy of civilized humanity: a perfect depiction of Islamic supremacists. The word therefore strips the enemy of all humanity, and degrades him to the status of a wolf or strangler (per Scandinavian tradition) or a virulent disease like the Black Plague. Black Plague is a deadly and contagious disease whose vector consists of plague-carrying rats, while the Green Plague of militant “Islam” is a deadly and contagious ideology that is spread by bipedal rats: nidings or nithings, non-humans that raise violent hands to all of civilized Humanity.

    The immediate consequence of being proven a nithing was outlawing. The outlawed did not have any rights, he was exlex (Latin for “outside of the legal system”), in Anglo-Saxon utlah, Middle Low German uutlagh, Old Norse utlagr. Just as feud yielded enmity among kinships, outlawry yielded enmity of all humanity.[63] …”Yet that is but one aspect of outlawry. The outlaw is not only expelled from the kinship, he is also regarded henceforth as an enemy to mankind.”

    Al-Awlawki was clearly an outlaw, a nithing, exlex.

    Michael Ejercito (64388b)

  229. So, machinist, the pres orders a particular terr killed. What about the terr being an American makes it different from ordering a non-American terr killed?

    Richard Aubrey (a75643)

  230. ahmiadinejad is considered far-right but he is not.

    DohBiden (d54602)

  231. “Are you saying the President can and should be able to have any American killed that he thinks is guilty or an enemy of the state? Based on his opinion only?”

    It’s not just his opinion, though. A lot of us agree with killing al-Awlaki. Righties agree with it because they love America and want to get the guys that have been attacking America and Americans for decades.

    Most lefties don’t give a poop about America, or dead Americans, but they’ll go along with anything Obambi does, because he’s the source of their welfare checks.

    So, we have consensus, and the the science is settled.

    Only a few guys like Greenwald (and his sock puppets) the ACLU, and Muslim whackjobs are agin it…and, what they want don’t count.

    Dave Surls (28f866)

  232. Is it strictly legal to blow up guys like al-Awlaki?

    Beats me. Don’t know, and don’t care. I just want to see everyone associated with Muslim terrorism blown straight to hell, don’t pass Go, and don’t collect 200 bucks…and, if we have to bend the rules a tad to do it…too bad, so sad.

    Dave Surls (28f866)

  233. Machinist (and others), you might want to watch this live-stream of a panel discussion with Ed Meese, John Ashcroft, and Michael Mukasey (ex-AG’s all) that is to be conducted at The Heritage Foundation, today – Tuesday – from Noon to 1PM (ET), it could have some answers to your concerns:
    The Constitution and the Common Defense: Who Ensures America’s National Security?”
    http://www.heritage.org/Events/2011/10/The-Constitution-and-the-Common-Defense?utm_source=Newsletter&utm_medium=Email&utm_campaign=Morning%2BBell

    Another Drew - Restore the Republic/Obama Sucks! (b0aaae)


Powered by WordPress.

Page loaded in: 0.8724 secs.