Scary sentences

It seems the Obama administration is looking for any possible argument to justify its policy of assassinating U.S. citizens without legal restraint.  But that's not always easy to manage:

“The more forcefully the administration urges a court to stay out because this is warfare, the more it puts itself in the uncomfortable position of arguing we’re at war even in Yemen,”

The administration doesn't want any possibility of judicial review:

…they are seeking to have the lawsuit dismissed without discussing its merits. For example, officials say, the brief is virtually certain to argue that Mr. Awlaki’s father has no legal standing to file a lawsuit on behalf of his son.

Is the administration trying to figure out the law, and then follow it, or to simply push through whatever it wants to do?

Comments

While I'm dead set against Obama's inclusion of American citizens on the JSOC Kill or Capture list, and I think that you can't square that circle in any way to make it anything other than an extrajudicial killing by the government, this isn't exactly nefarious. Standing is very commonly argued over in cases where a party is trying to bring suit when they're not the thing directly affected by a law or administrative decision. The administration lawyers wouldn't be doing their jobs if they didn't make the argument that Awlaki's pop doesn't have standing.

Sooo...does someone have standing if they haven't been assassinated yet or only after?

This surely has to be the fault of Republicans in Congress not playing ball, but I can't quite figure out how yet.

Dunno why this is such a big deal.

Sorry, but we have unrealistic expectations of transparency in National Security related matters.

Even though it's not the Cold War anymore, do we really think that governments don't still use "license to kill" as well as drone and cruise missles, etc.?

Do we really want to know?

Sometimes reality has to take precedence over transparency.

Just get it over with and off the dude...

Alex Kozinski's vote on the torture case was one of my biggest disappointments in his career as a judge.

Andrew, I asked questions. I didn't answer them, as your post implies.

So, why don't you take a stab at answering the questions so we can have a discussion.

@Andrew:

I don't terrorism changed everything. But technology did. These days it is just very easy for all actions to be transparent. It is incredibly hard even for a national spy agency to liquidate a person and not leave a trail behind. Look at the Mossad saga in Dubai. The world is simply a smaller and more connected place. Now contrast this with someone being extra-judicially killed during the civil war or even WW-II.

The problem is that the lay population does not factor the increased visibility into the equation so every such news item seems like a "new" thing. Not true. I believe most administrations were doing some hanky-panky but they never had to answer for it. It is only in the Bush and Obama era that technology has advanced to the point that this is a big deal. Blame it on blogs, satellite telephony, mass internet access in the third world, you-tube, what have you.

What needs to happen is that the public re-examine the laws in light of what are the operational demands. Its a dilemma that must be acknowledged. You can't maintain the operational procedures of yesterday with the accountability of today.

MD is right. This is the inherent difficulty on any conversation in the law of national security realm.

Our judicial law is about reasonableness and the balancing of all relevant and material factors - judges will simply not box themselves in with absolutist or dogmatic prohibitions that eliminate room for maneuver or take one value or ideal and prioritize it to the expense of all others.

The facts have to matter. But the facts are secret, and, unfortunately but properly, they have to be secret. The only way we can guess at them, their implication, and the depth of the threat from and wickedness of our enemies, is to see that people in power, who come into the know, and of whom one is almost certain would sternly and ideologically oppose this kind of violence if they believed there was any realistic alternative, nevertheless resign themselves to advocating for the lesser evil.

Isn't that what the Obama legal position is. In war - the calculus shifts, real facts change the balance, and other priorities rise to the surface. Nonjudicial Assassination of US citizens is evil, but it is the lesser evil, and thus the standard of proof must be lower, and the discretion is more appropriately placed in the executive.

It is ethically hypocritical that we are arguing about the validity of extra-judicial assassination of *US Citizens*. Other persons are OK to be extra-judicially killed? At that point let's just give up on the ethical and moral outrage and stick to more pragmatic arguments.

I have a hard time with this issue. I'm very liberal, etc., etc. but I don't see what the alternative is to dealing with guys like this and I'm not convinced that the distinction between citizen and non-citizen is that important. Also, presumably the order to kill this guy is a result of the fact that there is no way to capture him. If he would surrender to trial or could be captured, I believe that the government would prefer to do that.
The comparison I think of is a serial killer on the loose who refers to turn himself in. While the police may not technically have formal "license to kill" the murderer, if they are in the process of attempting to capture him and he resists then killing him if appropriate and no one would complain. And that's prior to due process, a trial, etc. I really think this is very similar. A US citizen is suspected of murder and/or attempted murder of US citizens. The government is trying to arrest him but would meet violent resistance if it tried - hence killing him may be the only other option. Now the inadequacy of our legal system to try terrorism suspects is a complicating factor for sure - you could argue that this guy cannot reasonably be expected to turn himself in for investigation and prosecution given that there is no expectation of a free, fair, and open trial. But putting that issue aside, what is the other alternative here for someone set on killing US citizens? Why does his own citizenship matter?

>the extra info available to the Prime Minister before the Iraq war had been invented at Number Ten.

This is an unrepentant, bald-faced lie.

As for Obama's assassinations, I cannot imagine what kind of mindset it requires to believe the following: It is perfectly OK for him to drop 500-pound bombs on foreign countries, obliterating everything and everyone for 50 yards in every direction, based on intel that Bad People are in the vicinity -- but God forbid someone in the kill zone has a Green Card! Then we need a lawyer!

If it makes you feel any better, I've heard that every Predator-launched Hellfire missile is imprinted with a copy of Obama's Nobel Peace Prize.

Here are some questions:

Why can we assassinate citizens, but have to invade a country in order to lynch its leader to affect regime change?

What is the rationale for state secrets?

Why would we want to assassinate terrorist leaders rather than extraordinarily rendidite them and ask interesting questions? You can't support both in this "war."

Here's a couple answers to whet your whistle:

Nothing done leading up to or during a Civil War should be precedent.

It's not a "war" BECAUSE American Citizens are being assassinated. Since it's not a war, there is no need to assassinate American Citizens.

There is zero rationale for state secrets in the 'national interest' in this "war." None. Want to be a spy? Strap on a pair.

All I have time for now.

Oh, oh, here's another.

What is this "standing" bullshit?

Another question that seems more fundamental to me:

The Bush administration claimed, in the Padilla case, the legal power to snatch US citizens off US soil (Chicago), and lock them up in a deep dark hole indefinitely with no charges and no judicial review.

The Obama administration claims, in this case, the legal power to have US citizens killed at any time (not on a battlefield, but having dinner with their kids, preaching in a mosque, sitting on the toilet reading a newspaper, etc.), again with no charges and no judicial review.

Assuming we grant those, what the fuck is the point of the endless political debates about limited government, about whether the GM bailout or the healthcare bill or cap-and-trade or campaign finance laws represent too-intrusive government? I mean, we've already accepted that the president (and those to whom he delegates the power; he's not pushing the "launch" button on the drone remote controls himself) can kill or disappear any citizen he likes, with no need to give anyone an explanation. Having granted the president that power, why pretend it doesn't translate to the power to do whatever the hell he wants?

We don't have to accuse Obama of hypocrisy to understand his continuation and even extension of Bush-era policies. We simply have to understand them both as charismatic but ineffective executives who quickly found their administrations co-opted by largely the same DC institutions.

@Brian: "How is the public supposed to distinguish "I know something you don't" from "I'm mad with power"? Also, how is "I can break the law because I know something you don't" an acceptable position in the first place?"

1. If you agree with the notion of legitimate state secrets, then the answer of "how is the public supposed to distinguish" cannot be answered "By looking themselves at the secret facts in real-time and making fully informed decisions of the propriety of government actions". That's what we would prefer - but it's impossible. Do you have a solution around this?

2. "Mad With Power". This could mean several things, so I'll let you be more specific, but if it's some kind of manic psychological state in an individual, I would hope it would be more or less obvious, visible in all realms of public policy, and evidenced by at least someone close to "the leadership" speaking out about the encroachment of real insanity. I still think that comparing strongly-evidenced strong philosophical convictions of a whole group in power against their actions is more evidence of "reasonableness" than of "rampant cynical mendacity" or some kind of addiction to infinite-expansion of authority.

3. "I can break the law". "The Law" would specify when this kind of thing was permissible and when it was not. It might eventually be "never" according to judicially-manufactured constitutional law, but it certainly seems to be in a state of play at the moment, doesn't it.

However, we could make it explicit, couldn't we? Congress could simple make it clear, which would seem to me to be their prime responsibility, and yet, it has failed to do so. So, it is at least arguable with their dereliction of duty - that there is no "law" to break, at least, not yet, not until some judge decides whether to make up any law, or leave it up entirely to the President's discretion. This morass is, sadly, typical of decrepit state of our jurisprudence, and makes a statement of "the law" as something concrete, fundamental, predictable, and objectively determinable - as something that can be "broken", into a horrible, tragic joke. Hey, don't shoot the messenger.

Indy:

How about the federal laws against murder and conspiracy to commit murder? Those laws are on the books now, and don't require any additional deep thought by Congress.

The administration clearly believes that those laws ought not to apply in some cases involving national security. Perhaps they should propose changes to the laws to permit the president to order assassinations on his say so alone, with no approval by anyone and no review afterward, all kept completely secret.

Otherwise, this looks just like the many other times during the war on terror, where this and the previous administration has claimed that they somehow didn't have to follow existing laws regarding warrantless wiretaps and the FISA court, torture of prisoners, etc.

I think we need to be clear on a few things.

First, it is NOT true that there are no legal restraints on the ability of the US Government to kill US citizens. Just as in any other time-period, killing US citizens without sufficient legal justification or excuse, with the requisite intent, is murder. Framing this issue as "should the US Government be able to kill whomever it pleases" is certainly how the ACLU would like it, but that's not actually the question before us.

Second, the issue is whether, in an area outside of US jurisdiction, in a contested and hostile country, the US should need to confirm a positive identification of an individual (who happens to be a US citizen) as an enemy combatant before killing or capturing that combatant.

The answer is clearly and obviously no. We have state organs which are responsible for investigating and prosecuting criminal acts perpetrated in the context of combat; we do NOT subject such acts to judicial review BEFORE they're undertaken. If this individual has not been properly identified as an enemy combatant, then there will be a case for criminal prosecution.

Is there any action that the administration could take, claiming the war on terror as justification, that would not be accepted by a big fraction of Americans?

I mean, suppose next Obama has a bunch of US citizens pre-emptively arrested, claiming he has evidence which can't be shared with anyone that shows that they were plotting an attack. Or suppose he has a congressman or two arrested with the same argument? ("My evidence for Representative Bachman's treason is far too sensitive to be allowed to appear in court, but trust me, I'm very sure she was plotting with Al Qaida.") Suppose he has a few journalists assassinated. ("I have in this envelope proof that the leadership of Fox News has been plotting with jihadis for years. We regret the loss of innocent life in the missile strike that killed Glenn Beck and Sean Hannity, but this was a necessary action to keep America safe from the terrorists.")

Are there any limits at all? I mean, we've established that a lot of fans of the war on terror (or at least this administration's version) are fine with president ignoring the written law in many cases, and spinning out pretty laughable justifications. (Like claiming that the AUMF act gave the president the authority to do absolutely anything he claims is necessary to fight the war on terror. Perhaps Obama should demand the courts dismiss the states' lawsuits about the mandate by claiming he's using the authority of the AUMF to impose them. Or maybe he should claim that vital state secrets are at stake, and so the court mustn't look at the issue at all.)

I'm serious about this question. Is there *anything* the president can't do, if he claims some kind of vaguely plausible justification for it w.r.t. the war on terror?

"The administration lawyers wouldn't be doing their jobs if they didn't make the argument that Awlaki's pop doesn't have standing."

Wrong. The DoJ is not like an attorney for a private client where there is a duty to zealously pursue all of the claims the client wants pursued. The DoJ's ultimate responsibility is to the country, not the president, and thus owes an independent duty to see that the law. Unless they genuinely believe that the law requires Awlaki's father not to have standing they are acting unethically by pursuing this claim, even if the President wants them too.

Andy:

First, it is NOT true that there are no legal restraints on the ability of the US Government to kill US citizens. Just as in any other time-period, killing US citizens without sufficient legal justification or excuse, with the requisite intent, is murder. Framing this issue as "should the US Government be able to kill whomever it pleases" is certainly how the ACLU would like it, but that's not actually the question before us.

So, what legal justification or excuse is sufficient, and what process is used to determine that? Isn't the Obama administration basically claiming it can determine that it has enough legal justification to murder Alwaki without anyone else providing oversight? Isn't that what it means for the administration to more-or-less sign the guy's death warrant?

Is there some written law somewhere defining the process by which the president acquires legal justification for ordering someone's assassination, miles from any battlefield? As far as I've understood, the process is that the president asserts he has the authority and will use it carefully. For some reason, I don't find this all that reassuring.

Second, the issue is whether, in an area outside of US jurisdiction, in a contested and hostile country, the US should need to confirm a positive identification of an individual (who happens to be a US citizen) as an enemy combatant before killing or capturing that combatant.

Can you point out where this distinction about the target of the assassination being "outside US jurisdiction, in a contested and hostile country" appears in written law somewhere? If Alwaki should surface in Turkey at some point, or Germany, and we couldn't extradite him, is there some written law that says the administration would not be allowed to assassinate him in that case? (Note that we abducted people for secret prisons in allied cities, leading to embarrassing court cases in Spain and Italy and Germany, so it's not far fetched to think we might also assassinate people in those countries. Similarly, you assure us this only involves stuff happening outside the US, but you might want to ask Jose Padilla whether amazing claims of executive power related to the war on terror stop at the border.)

The answer is clearly and obviously no. We have state organs which are responsible for investigating and prosecuting criminal acts perpetrated in the context of combat; we do NOT subject such acts to judicial review BEFORE they're undertaken. If this individual has not been properly identified as an enemy combatant, then there will be a case for criminal prosecution.

This isn't remotely about combat, it's about assassination. We see what looks like Alwaki from some drone somewhere, miles from any battlefield, and the drone shoots a missile and blows the guy up. Nobody disputes that soldiers in combat can shoot people without verifying their citizenship or any other information, other than making the required effort not to kill noncombatants.

The question is whether the president can order the assassination of a US citizen on his say so, with no judicial or other review. Those of you arguing that he has this power, it seems to me, should provide some kind of evidence in terms of written law. Also, those of you arguing it probably should stop pretending you care about limited government and rule of law.

A society in which the bossman can have anyone he wants killed or arrested indefinitely, and where nobody can say exactly what the limits of the bossman's powers are, is the opposite of the rule of law.

Both albatross and db are looking for some far-reaching legal rule as to what the government may and may not do in every instance in which a US citizen who also happens to be an enemy combatant comes into US cross-hairs.

Fortunately, that's not necessary. The issue isn't whether, should this individual surface in Britain, the executive branch still retains the power to kill him. The issue is whether the executive branch has the power to kill the individual without seeking permission from the judiciary in Yemen.

Albatross,

I think you're confusing a conception of combat and a conception of self-defense. The engagement of a target on the ground from the air constitutes combat regardless of whether the target on the ground ever has a chance to use force himself. In this case, the target is allegedly an enemy combatant who is an active participant in an ongoing conflict. The rules governing whether and when that target can be engaged are the same as in any other conflict.

The identification and neutralization of targets during a military conflict is an essential task of military forces and an inherent part of war; the Constitution grants the President the powers of commander-in-chief of military forces, which necessarily includes the power to direct the military in such essential tasks.

I think the understandable underlying concern here is that, given the global nature of the so-called "war on terrorism," we could read the executive branch ordinary wartime power of identification of targets to encroach upon the due process rights of US citizens, and of persons inside US jurisdiction generally. This strikes me as a somewhat fantastical anxiety, given existing jurisprudence as to when and what amount of due process is owed.

Indeed, that same jurisprudence has already considered, and rejected, the possible society in which Albatross considers in his last paragraph.

I don't like the idea that the federal government would have the legal ability to kill US citizens without a trial. On the other hand, the US government has killed hundreds of thousands of US citizens without a trial in the past. We called it the civil war.

You could argue that the members of the south should not be considered American citizens because they left the Union. On the other hand, the north fought the whole war on the theory that they could not leave.

If you argue that the men of the south ceased to become US citizens due to the fact they were part of armed hostile group that the US federal government refused recognize as a nation, then how is a US citizen who grabs an AK-47 and joins some hostile outfit on the far side of the globe any different?

I think the main difficulty here is that we do not have a good legal frame work for dealing with non state groups that chose to carry out politics by other means. It is not always possible to deal with such groups through normal judicial means.

For example, I think of the situation that Columbia faced when dealing with Pablo Escobar. Here was a man who was undermining the state and who succeeded in thwarting its efforts to neutralize him through normal judicial means. He was eventually killed through a series of very illegal operations. A lot of people find fault with the way he was taken out and I have some sympathy with that view point. However, it is not clear that there was any realistic chance of him being stopped through normal judicial means.

What is the magical dividing line between one man with a lot of money and gunman at his command and the dictatorial head of a "state". Why can we wage war against the one, but we must use judicial means against the other? It seems to me that judicial means implies the state is in control and that is not always the case.

You supported him. Hope and change

In the past I've really laid into Tyler for not supporting essential civil liberties as a requirement for wearing the moniker of "one who supports freedom". But this post is exactly is what is needed, and more of them too.

Yes, this policy, put in place by the people I voted for, is abominable.

Beware of any government seeking to rationalize the assassination of its own citizens.

1. The right to life not being abridged without 'due process of law' does not restrict itself to citizens in the US Constitution but to 'persons'. The gov't has no right to kill people without due process whether or not they are US citizens.

2. That being said, the test IMO is the person being targetted placing himself under the jurisdiction of a regime where due process can apply or is he trying to 'have his cake and eat it to' by participating in a war against the US (due process would not prevent him from being targetted on a battlefield) but also seeking legal protections by avoiding direct contact with the battlefield? Technology has made this problem worse but it's not exactly totally new. Imagine, for example, a British citizen hovering in a blimp over international waters radioing Germany updates on British air defenses. Wouldn't a judicary say that the citizen has basically extended the battlefield to his blimp thereby requiring no judical review before it is shot down?

In this case is the guy willing to bring himself under a regime that is willing and able to take responsibility for him or is he playing a cat and mouse where he participates in war with the US but tries to assert judical protections?

I think this test is relatively simple in most cases. If the administration declares someone sitting in Detroit writing a blog is participating in war against the US, they cannot target him for killing. Likewise if the person is sitting in France or even Iran (unless we are willing to be at war with Iran). But if the person is bouncing around in frontier zones with little or no serious gov't...well all bets are off so to speak.

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