DOJ lawyers claim dronekilling American citizens is "legitimate act," not assassination.

Malor wrote:
All you have to do is not go all Orwellian like Greenwald is here by redefining words so simple as "war zone" and "battlefield" to mean only American hostilities.

They have to be defined that way. Another country's battlefield is not ours. If a battlefield is anywhere we want it to be,

You went from "it's not our battlefield" to "a battlefield is anywhere we want it to be" and I disagree with the reasons you have below for making that jump.

and if something is defined as a battlefield by the President and not by a an act of Congress,

Well, Congress does not define battlefields, either. It shouldn't. What is and is not a battlefield shouldn't be 'defined' by anyone: it should be something you have to prove by bringing in facts about the world to support an argument that something is a battlefield. Maybe we extend greater deference to what is and is not a battlefield based on the nature of their declarations of war/to use force, but at some point the decision as to whether something is or is not a battlefield has to be about facts, not government policy.

then the whole idea of battlefield being a meaningful restriction on the ability to arbitrarily kill people disappears.

That is what he is objecting to. Battlefields are not battlefields because the President claims they are.

Then like I said: challenge that in court. Whether something is a battlefield or not does not depend on something you can only find in a secret government memo. It's not a matter of foreign policy. It's a matter of facts that can be established by, like, Anderson Cooper with a film crew standing somewhere in front of sh*t blowing up.

I was thinking about this last night, when I read the memo. What astonishes me, is that there are not massive, massive, MASSIVE movements on the streets protesting this bullsh*t. The Left, who are my people for the most part, is just sitting back and accepting it, because Obama is doing it.

If this were a Bush/Cheney administration; the Left would be apoplectic. I put it to you, that it doesn't matter who's administration it is; these activities should be prohibited. The Executive Branch is not allowed, by law or by tradition, to be judge, jury, and executioner of American citizens. Nor should it be.

The Drone War is problematic. The Drone War being used to extrajudicially execute Americans should be punishable under existing law. Assassination is against the law.

As well, the memo doesn't say they won't use drones in the US to target Americans. It doesn't say they will...but it doesn't say they won't, either. This memo, the policy, and by transference, this Administration, has become significantly problematic. I mean, I know we got hoodwinked the first time; thinking Obama was a Leftist...this time I knew he was a Corporatist, and still voted for him because he was less scary than Paul Ryan being anywhere near a candy-like red button; but I find these policies abhorrent, problematic, and probably illegal. And I know that I can't do a damn thing to stop them.

LobsterMobster wrote:

Obama's already done it, so we can be sure that whatever legal justifications they come up with will make it a point to say what he did was kosher. We can argue about future implications, but he's already shown that he's willing to go ahead and have people killed even without established legal justification. Kind of renders any debate over the specifics moot.

Oh, we already that point under Clinton.

duckideva wrote:

If this were a Bush/Cheney administration; the Left would be apoplectic. I put it to you, that it doesn't matter who's administration it is; these activities should be prohibited. The Executive Branch is not allowed, by law or by tradition, to be judge, jury, and executioner of American citizens. Nor should it be.

The Drone War is problematic. The Drone War being used to extrajudicially execute Americans should be punishable under existing law. Assassination is against the law.

Well, you're stuffing your conclusion in your premise: this is the whole argument (every time this comes up) of whether it's an execution by the President as the person in charge of--no pun intended--executing the criminal law of the United States, or it's a killing by the President as Commander-in-Chief of the armed forces prosecuting--again, NPI--a war. You're getting tripped up in the semantics.

I don't think I am. The United States has banned assassination as a matter of national policy through a series of executive orders, the last of which remains extant. In the wake of potential assassination plots against foreign leaders, U.S. Presidents Gerald Ford, Jimmy Carter, and Ronald Reagan issued executive orders (E.O. 11905 (1976), E.O. 12036 (1978), and E.O. 12333 (1981), respectively) banning assassination. E.O. 12333, for example, provides:

No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

duckideva wrote:

I don't think I am. The United States has banned assassination as a matter of national policy through a series of executive orders, the last of which remains extant. In the wake of potential assassination plots against foreign leaders, U.S. Presidents Gerald Ford, Jimmy Carter, and Ronald Reagan issued executive orders (E.O. 11905 (1976), E.O. 12036 (1978), and E.O. 12333 (1981), respectively) banning assassination. E.O. 12333, for example, provides:

No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

In a section of the order labeled "Restrictions on Intelligence Activities," Ford outlawed political assassination: Section 5(g), entitled "Prohibition on Assassination," states: "No employee of the United States Government shall engage in, or conspire to engage in, political assassination."
http://articles.cnn.com/2002-11-04/j...

Political assassination, not the killing of military targets.

The ban, however, did not prevent the Reagan administration from dropping bombs on Libyan leader Moammar Gadhafi's home in 1986 in retaliation for the bombing of a Berlin discotheque frequented by U.S. troops.

Additionally, the Clinton administration fired cruise missiles at suspected guerrilla camps in Afghanistan in 1998 after the bombings of two U.S. embassies in Africa.

Lowering the Bar (comedic legal blog) has a lengthy breakdown of the memo and why it's horrible.

The Drone Memo: More Comedy About the Death of Freedom

I like this bit:

Finally (and sorry for the long post, though its ending is imminent), the memo considers whether killing a U.S. citizen might violate certain laws against killing U.S. citizens. No bonus points will be given for correctly guessing its conclusion, but you might not guess the rationale. Because there isn't one, really. Those laws only apply to unlawful killings, it says. We just got done saying these killings are not "unlawful," and therefore they are not against the law. Questions?
Quintin_Stone wrote:

Lowering the Bar (comedic legal blog) has a lengthy breakdown of the memo and why it's horrible.

The Drone Memo: More Comedy About the Death of Freedom

I like this bit:

Finally (and sorry for the long post, though its ending is imminent), the memo considers whether killing a U.S. citizen might violate certain laws against killing U.S. citizens. No bonus points will be given for correctly guessing its conclusion, but you might not guess the rationale. Because there isn't one, really. Those laws only apply to unlawful killings, it says. We just got done saying these killings are not "unlawful," and therefore they are not against the law. Questions?

Man, that is just a brilliant post. If they're all that good, I'm adding it to my google reader.

They are and you should.

Mixolyde wrote:
Quintin_Stone wrote:

Lowering the Bar (comedic legal blog) has a lengthy breakdown of the memo and why it's horrible.

The Drone Memo: More Comedy About the Death of Freedom

I like this bit:

Finally (and sorry for the long post, though its ending is imminent), the memo considers whether killing a U.S. citizen might violate certain laws against killing U.S. citizens. No bonus points will be given for correctly guessing its conclusion, but you might not guess the rationale. Because there isn't one, really. Those laws only apply to unlawful killings, it says. We just got done saying these killings are not "unlawful," and therefore they are not against the law. Questions?

Man, that is just a brilliant post. If they're all that good, I'm adding it to my google reader.

The rationale is that it's authorized by the laws of war. I followed their link and looked at that part of the memo, and I don't know if they missed it or they just ignored it to make a funny, but there is a rationale there.

By the way, I read the rest of that memo, and the theory in the memo is not exactly that of a 'battlefield, but it's certainly not that of a 'global battlefield' either. It's a theory of a "base of operations" where a third country either consents or has lost control of part of its own territory to al-Qaida or "an associated force."

CheezePavilion wrote:

The rationale is that it's authorized by the laws of war. I followed their link and looked at that part of the memo, and I don't know if they missed it or they just ignored it to make a funny, but there is a rationale there.

Did they mention whose laws of war and where they are written down? Sorry, I haven't read the full thing, yet.

Mixolyde wrote:
CheezePavilion wrote:

The rationale is that it's authorized by the laws of war. I followed their link and looked at that part of the memo, and I don't know if they missed it or they just ignored it to make a funny, but there is a rationale there.

Did they mention whose laws of war and where they are written down? Sorry, I haven't read the full thing, yet.

There's a bunch in there, and an admission that this is an area without a lot of direct precedent; the most relevant and most 'neutral' (I'm guessing your concern is the one we all have, whether these laws of war are respected sources or just sh*t we made up yesterday) I'd say is the reference to the Hague Convention not precluding targeted killing and differentiating it from assassination by means of treachery or perfidy.

As it turns out, from what I can tell that Declaration started as an attempt to define the laws of balloon warfare, which I think is an unironic coincidence considering this involves drone strikes.

+++++

Doing a little digging by searching for one of the memo's quoted phrases from that Declaration, I can see an issue here regarding where a person's 'military' status stops, and his 'political' status begins, one that I've always wondered about.

I sure wish we could get some analysis from someone who knows enough about the laws of war to give us a good analysis, but all we get is blogger blather that doesn't even address this part of the memo/this element of the argument.

Cheeze, it kind of seems like your definition of battlefield is "where we are blowing sh*t up". Under your definition of battlefield, where exactly are we not allowed to murder US citizens?

Yonder wrote:

Cheeze, it kind of seems like your definition of battlefield is "where we are blowing sh*t up". Under your definition of battlefield, where exactly are we not allowed to kill US citizens?

I said "If law enforcement operations were possible, it wouldn't BE a war zone. That's what war is: when civil order gives way to military conflict." So you're not allowed to kill US citizens in places where arresting the person is a possibility. Turns out that's not so different from an Interpretative Guidance paper by the International Committee of the Red Cross:

During the expert meetings, section iX.2. of the interpretive Guidance remained highly controversial. While one group of experts held that the use of lethal force against persons not entitled to protection against direct attack is permissible only where capture is not possible, another group of experts insisted that, under ihl, there is no legal obligation to capture rather than kill. Throughout the discussions, however, it was neither claimed that there was an obligation to assume increased risks in order to protect the life of an adversary not entitled to protection against direct attack, nor that such a person could lawfully be killed in a situation where there manifestly is no military necessity to do so. For an overview of the relevant discussions see report Dph2004, pp. 17 ff.; report Dph2005, pp. 31 f., 44. ff., 50, 56 f., 67; report Dph2006, pp. 74-79; report Dph2008, pp. 7-32

...

In classic large-scale confrontations between well-equipped and organized armed forces or groups, the principles of military necessity and of humanity are unlikely to restrict the use of force against legitimate military targets beyond what is already required by specific provisions of ihl. The practical importance of their restraining function will increase with the ability of a party to the conflict to control the circumstances and area in which its military operations are conducted, and may become decisive where armed forces operate against selected individuals in situations comparable to peacetime policing. in practice, such considerations are likely to become particularly relevant where a party to the conflict exercises effective territorial control, most notably in occupied territories and non-international armed conflicts.

DSGamer wrote:

Still not a police state.

What's your point? One should only try to change government policy once a police state is in place?
To be honest, I think I'd feel better if we left drone strikes to military and not-killing-people to civilian agencies, cause that's what they're both for.

Heh.

Roland, meet DSGamer. DSGamer, Roland.

Quintin_Stone wrote:
CheezePavilion wrote:

I sure wish we could get some analysis from someone who knows enough about the laws of war to give us a good analysis, but all we get is blogger blather that doesn't even address this part of the memo/this element of the argument.

I know, right? George U? 17 years of practice? What a noob.

No fool like an old fool.

Actually, went and looked at the "About" page: He "worked" (also his term) in the Business Litigation section while in Kansas City but now spends the bulk of his time on the defense of products-liability and consumer-protection cases.

Sounds like something out of the Bush era: put a products liability guy in charge of figuring out the laws of war.

CheezePavilion wrote:
Yonder wrote:

Cheeze, it kind of seems like your definition of battlefield is "where we are blowing sh*t up". Under your definition of battlefield, where exactly are we not allowed to kill US citizens?

I said "If law enforcement operations were possible, it wouldn't BE a war zone. That's what war is: when civil order gives way to military conflict." So you're not allowed to kill US citizens in places where arresting the person is a possibility. Turns out that's not so different from an Interpretative Guidance paper by the International Committee of the Red Cross:

So in any situation where a region is too unstable to have a government which can apprehend and extradite you you are presumed guilty and a valid target of assassination?

Yonder wrote:
CheezePavilion wrote:
Yonder wrote:

Cheeze, it kind of seems like your definition of battlefield is "where we are blowing sh*t up". Under your definition of battlefield, where exactly are we not allowed to kill US citizens?

I said "If law enforcement operations were possible, it wouldn't BE a war zone. That's what war is: when civil order gives way to military conflict." So you're not allowed to kill US citizens in places where arresting the person is a possibility. Turns out that's not so different from an Interpretative Guidance paper by the International Committee of the Red Cross:

So in any situation where a region is too unstable to have a government which can apprehend and extradite you you are presumed guilty and a valid target of assassination?

No, you'd have to meet all those other requirements that were mentioned. If you don't, killing you would be a war crime.

RolandofGilead wrote:
DSGamer wrote:

Still not a police state.

What's your point? One should only try to change government policy once a police state is in place?
To be honest, I think I'd feel better if we left drone strikes to military and not-killing-people to civilian agencies, cause that's what they're both for.

clover wrote:

Heh.

Roland, meet DSGamer. DSGamer, Roland.

Yeah, that might be one of my favorite posts ever. Search the site for "police state" and DSGamer. Hint, I think the US is a police state.

CheezePavilion wrote:

I sure wish we could get some analysis from someone who knows enough about the laws of war to give us a good analysis, but all we get is blogger blather that doesn't even address this part of the memo/this element of the argument.

I know, right? Georgetown U? 17 years of practice? What a noob.

I'm going to repost a slightly-edited version of a comment I made on Metafilter:

It is, perhaps, worth reminding everyone that the only time you need your civil liberties is when the government hates you and wants you imprisoned or dead.

If you only have rights when you're popular, you don't have rights, you have privileges in exchange for conformity.

It's when everyone thinks you're an absolute scumbag and should immediately be killed, and you still have rights, and due process, everything is adhered to scrupulously and by the letter, and there's a very real chance you'll walk out the other end of the process a free man or woman.... THEN you have rights, the real honest-to-god genuine article. The way you know you have rights is that Public Enemy Number One has them. If he doesn't, you don't either, so you should in there screaming about Al-Alwaki and the thousands of drone deaths.

If Public Enemy Number One can just be killed in an extrajudicial assassination, then so can you. You just have play rights. As long as you stay in the dotted lines and obey the authorities, you can pretend whatever you like. But they will put you f*cking six feet under if you step too far out of line.... or if they think you stepped out of line.

Something I was pondering. The idea is that these suspected, and likely, terrorist members (who are US citizens) should be arrested, brought to the US, and put on trial. How in the living hell do you do that? Our military forces do not have the authority to do that. The CIA does not have such authority. The FBI has no jurisdiction overseas. That is an illegal arrest no matter how you cut it. For all the jokes, America cannot literally police the world.

I do not see how, unless these terrorists are caught in our nation or within the borders of an extradition treaty nation, that there is no way to exercise police power. And this gets down to a fundamental issue, a fundamental disconnect that over the past 30-40 years the US, and Israel, and the UK, have gotten very nebulous on the classification of terrorists as criminals, as enemy combatants, as soldiers. Or is a terrorist something new entirely, that needs a new classification and new debate, and new treaties.

I think those are good points, KG.

I think the fundamental issue boils down to whether terrorism is considered a crime or an act of war. It would seem to me that DS, Malor, and others define terrorism as a criminal act and that myself, Cheese, and others would define it as an act of war. In one, drone strikes are perhaps seen as a troubling, sickening violation of civil liberties and human decency and in the other, a logical solution to a non-traditional but highly-effective tactic. (If I have mis-characterized the point-of-view of anyone I mentioned, I apologize and will edit the post if requested.)

I find the Drone War troubling because Terminator is the only logical outcome. (But not Terminator 3. That movie was awful.)

It can't be an act of war, because it's a tactic. It's not something you can declare war on. It is a crime, an action taken by a person or a group of people. Anyone can become a terrorist just by terrorizing some people.

The whole idea that it's a war is framing that's so broken that it is literally breaking the country apart. It is a LIE, and it is a lie of such magnitude that our institutions are crumbling from its ramifications. We've lost habeas corpus, and now we've lost the right to due process, and to checks and balances in the government.

This is because calling it a war is a lie.

The elements are from both, however. By and large, terrorism is met with military force, not police force. And this is true for the past 40 years or so. Whether we are talking Muslim extremists, Central America, or Soviet nations, it is the CIA, the Army, Navy, Airforce.

What elements that are criminal, are confined to within the confines of one's own nation. Terrorism is a criminal act. As is murder. We do not arrest, and prosecute murderers from Pakistan in the US, typically. To further complicate matters, nations like Yemin and Pakistan seem content to create safe havens for murderers within their borders, and do not seem keen to kick them out. And that concentration of murderers poses a serious threat to Spain, Italy, the US, the UK, Israel, and so on.

What judicial means are there? I can find none. And if the stance is, judicial means, or nothing at all, then that is no solution, and the cycle continues. The judicial means in the US or the UK or Canada would be to wait for such individuals to come to an extradition nation, or sovereign soil, to make an arrest. The ring leaders do not venture out of safe haven nations. I find the idea of stating that because terrorist cells, which are in truth armies, cannot perpetuate acts of war is hogwash. They are armies, with safe havens in nations, at the very least, who are committing acts of war upon other nations.

The private military force committing acts of war independent of or as an arm of a foreign state is certainly not a new thing in the World. And it has always been treated as an act of war. Going back to the 1800's, the US used the navy and marines to wage war on pirates and corsairs in the Atlantic, Gulf, and Caribbean. I see the present situation as a modern extension of that.

KingGorilla wrote:

I find the idea of stating that because terrorist cells, which are in truth armies, cannot perpetuate acts of war is hogwash. They are armies, with safe havens in nations, at the very least, who are committing acts of war upon other nations.

That's how I feel. (edit) We should pursue it as a crime by way of law enforcement wherever possible. However, once the criminals protect themselves by behaving like an armed force to the point where they are beyond law enforcement, attacking that armed force as if it were a military is a lot different than treating the whole thing like a war.

Heck, keep in mind that we invaded Afghanistan for something al-Qaida did from their bases in that country: the Taliban air force didn't like, bomb Pearl Harbor or something. In fact:

Malor wrote:

It can't be an act of war, because it's a tactic. It's not something you can declare war on.

This makes no sense. It would mean that Peal Harbor wasn't an act of war, because bombing is a tactic. You can't declare a war on planes with bombs in them.

We all understand the concept that you can't declare war on a tactic. The problem is you are taking that to the level that you say you can't declare war on the people who use a tactic for using that tactic.

You know what else you can't do to terrorism? Arrest it, because terrorism is a tactic. You can no more arrest a tactic than you can declare war on it. By your logic, we can't arrest terrorists, either.

CheezePavilion wrote:

This makes no sense. It would mean that Peal Harbor wasn't an act of war, because bombing is a tactic. You can't declare a war on planes with bombs in them.

Actually, this basically what the US has done. We've declared war on the tactic, "Terrorism". Anyone even thinking of talking to a guy who maybe might support terrorism can be killed at this point. If the US behaved during the bombing of Pearl Harbor as they did today they would fight anyone who uses bombs. It would be silly. The US didn't do that. They deliberated and followed Constitutional protocol to declare war on Japan.

CheezePavilion wrote:

We all understand the concept that you can't declare war on a tactic. The problem is you are taking that to the level that you say you can't declare war on the people who use a tactic for using that tactic.

You know what else you can't do to terrorism? Arrest it, because terrorism is a tactic. You can no more arrest a tactic than you can declare war on it. By your logic, we can't arrest terrorists, either.

I think he's saying that the Constitution matters when it comes to war powers and extra-Constitutional BS like spying on citizens and taking away their right to due process. Regardless of the tactic.

DSGamer wrote:
CheezePavilion wrote:

This makes no sense. It would mean that Peal Harbor wasn't an act of war, because bombing is a tactic. You can't declare a war on planes with bombs in them.

Actually, this basically what the US has done. We've declared war on the tactic, "Terrorism". Anyone even thinking of talking to a guy who maybe might support terrorism can be killed at this point. If the US behaved during the bombing of Pearl Harbor as they did today they would fight anyone who uses bombs. It would be silly. The US didn't do that. They deliberated and followed Constitutional protocol to declare war on Japan.

CheezePavilion wrote:

We all understand the concept that you can't declare war on a tactic. The problem is you are taking that to the level that you say you can't declare war on the people who use a tactic for using that tactic.

You know what else you can't do to terrorism? Arrest it, because terrorism is a tactic. You can no more arrest a tactic than you can declare war on it. By your logic, we can't arrest terrorists, either.

I think he's saying that the Constitution matters when it comes to war powers and extra-Constitutional BS like spying on citizens and taking away their right to due process. Regardless of the tactic.

Why, did anyone say the Constitution doesn't matter? I think we're all saying that.

This is why I use terms like Orwellian. Because remember how when Bush was popular, if you criticized anything the President did, people would ask you "why do you hate America?" Well, this is just the flipside of that. Because someone doesn't agree that the President is doing something wrong, you think the Constitution doesn't matter to them? Or at least, the Constitution matters more to the people you agree with than to the people you disagree with?

There are probably many cases where people who disagree on this issue--people to whom the Constitution is equally important--would agree that the WarOnTerror was unconstitutional and even criminal from a human rights standpoint. So when you talk about how we declared war on a tactic, that's only half true. We also declared war on an enemy, like we did with Japan. If you think something we're doing is an unconstitutional product of declaring war on a tactic as opposed to a product of us having declared war on al-Qaida, then you're welcome to make that argument.

But you actually have to make that argument. You can't just bring up those other cases to poison the well of this case. It's not an all-or-nothing thing, any more than interning Japanese-Americans means every other thing we did in WWII is equally suspect from a Constitutional standpoint.