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View Diary: Droning Americans on US Soil: Why Holder's "No" is Not Reassuring (156 comments)

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  •  To the people clearly trying to misdirect the (15+ / 0-)

    debate, it's not really about drones, but about targeted killings without proper if any due process, which drones make much easier than any other existing technology (and safer for the forces deploying them).

    I.e. about the president, or a designated subordinate, saying "Yeah, bad guy, kill him", without a proper legal review and approval process that involves the judicial branch, and perhaps congress too (i.e. the "Gang of 8"), outside of an actual battlefield. Whether with a drone, a cruise missle, or special ops.

    And no, no one's saying that every time an opportunity emerges to kill a known terrorist who is planning, responsible for or carrying out an attack, whose window is only minutes long, we should convene a court or meet with congressional leaders. Obviously some actions are judgement calls and have to be done near-instantly. But there needs to be a formal process in place that is followed that involves more than the executive branch to make sure that all such actions are legitimate, to the best on anyone's ability to determine, such that "kill lists" are approved beforehand, and emergent actions are thoroughly reviewed after the fact by entities outside the executive branch.

    The basic point is that the criteria for such killings, as to whom, when, where and how, and even the means by which they would be carried out (with precautions obviously taken to assure operational secrecy) must be known to congress and the courts, and that these two branches must be involved in the approval and review of such killings, and it not be left solely to the executive branch, under Cheney's "Unitary Executive" doctrine--i.e. tyranny.

    “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of TYRANNY.”

    James Madison, Federalist Paper 47

    It's not about the technology used, or being soft on terrorists. It's about respecting the constitution and the principles espoused in it.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Fri Mar 08, 2013 at 08:02:17 AM PST

    •  I agree with this, broadly, (1+ / 0-)
      Recommended by:
      Spit

      but I'd qualify that, for one thing, Obama's legal rationales draw much more heavily on the role of Congress and the AUMF;

      for another, in the absence of greater statutory guidance (which should include some Court oversight, even if ex parte), how should the President have acted differently in the recent term, with respect to targets he determined fit the criteria? (Subjectively having a reasonable belief any such targets would be approved, rightly or wrongly, or else the question is mooted before it's asked.)  

      It's entirely conceivable that the Constitution is less protective than would be best policy, and there are myriad other examples in law where statutes create rights or procedures where the Constitution merely proscribes a bare minimum, including circumstances in which internal deliberation satisfies due process (not judicial process).

      Difficult, difficult, lemon difficult.

      by Loge on Fri Mar 08, 2013 at 08:52:38 AM PST

      [ Parent ]

      •  Well (2+ / 0-)
        Recommended by:
        Spit, aliasalias

        First, I'd argue that the AUMF itself is at least partly unconstitutional and in need of review, not just from the executive in the form of (unfortunately secret) OLC legal findings and memos, but by congress and the courts. So even if it does authorize such actions, that doesn't make it constitutional.

        Second, to the extent that the executive is simply following the presumptively constitutional AUMF, there's no way to know that if these findings and memos are kept secret, even from congress and the courts. Otherwise, we're being told to believe that legal justifications that we're not allowed to see pass constitutional muster, based on a law that itself is likely not fully constitutional.

        Third, the reasons given to justify keeping these documents secret, not just from us but also congress and the courts, along with plaintiffs in civil suits by those claiming to have been harmed by actions taken pursuant to them, are themselves quite dubious, constitutionally speaking.

        And finally, if the executive is claiming that the AUMF not only justifies these actions, but requires them, that doesn't even pass the laugh test given the many instances in which it has egregiously and obviously failed to take actions in other areas that existing law if not the constitution requires that it do, such as prosecute financial and war criminals. You can't claim discretion where you want discretion but exclude it where it's convenient to exclude it. That would be laughed out of a first year law or poly sci class.

        Ultimately, I think they're abusing power, because they can, be it because they genuinely believe it's for a good cause and something they have no other way of doing, or because they just like the power and are too lazy to find legitimate ways of obtaining it, or afraid of the political consequences of doing so.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Fri Mar 08, 2013 at 09:03:34 AM PST

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        •  I don't agree with the secrecy jusitifications (0+ / 0-)

          at least relative to the House and Senate Select Intelligence Committees, but i'm not quite sure of the status of their access, as opposed to classifications generally.  

          Obviously, if you take the position that more is unconstitutional, less is authorized.  But, there are different ways an action can be unconstitutional (not authorized by statute and not within inherent powers), and a statute can be unconstitutional (not authorized by article I or authorized by article I but violating a protected liberty interest, and even then, there are distinctions between whether the statute is unconstitutional on its face or as applied).  How any of this is unconstitutional requires greater articulation, because only that can tell you whether and how it's fixable.  If everyone agrees at least some aspects need fixing, the important question is whether those fixes are still unconstitutional.  Whether they make it constitutional for the first time or whether it was never unconstitutional to begin with is ancillary.

          I'm not sure about point 4, either the premise or the conclusion. I could be mistaken, but I don't think the administration has claimed any particular action was "mandated."  What's more different statutes create different levels of discretion, and remedial statutes are inherently highly fact-specific in their application and thus even more discretionary.  

          Difficult, difficult, lemon difficult.

          by Loge on Fri Mar 08, 2013 at 09:30:26 AM PST

          [ Parent ]

    •  Well... (1+ / 0-)
      Recommended by:
      edrie

      I guess the simple answer to this is to repeal AUMF and get Congress to do it's job.  But of course, that would take away from your ability to call the current president a tyrant.

      The greatest trick the Devil ever pulled was convincing online commenters that they have anything to say.-- B.F.

      by lcj98 on Fri Mar 08, 2013 at 09:04:59 AM PST

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      •  Come on, that's too easy (5+ / 0-)

        If Obama believed the AUMF to be, at least in part, unconstitutional, he'd just have to ignore and refuse to carry out those parts and tell congress to send him a cleaned-up version. You can't apply such justification on DOMA and then claim that your hands are tied. How stupid does he think we are?

        You're really insulting peoples' intelligence and motivations by making this into a political version of having daddy issues. Obama is doing the same exact thing Bush was doing, however more "smartly", so why is it ok when he does it when it wasn't ok when Bush did it? "I trust him" is a child's answer.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Fri Mar 08, 2013 at 09:10:23 AM PST

        [ Parent ]

        •  To add (3+ / 0-)
          Recommended by:
          kovie, aliasalias, edrie

          Even if I do trust him, he's not going to always be the president.

          Process matters a lot, and this administration hasn't really tackled it when it comes to "national security." There are probably ways to make this all run better within the bounds of the constitution, without sacrificing the needed secrecy around particular situations. Some of that would require congressional cooperation that ain't coming soon, but some of it probably would not.

          I suspect that the reality is that nobody wants to open the political can of worms. And I'm realistic about that, I don't think it's stupid to want to avoid that particular political clusterfuck while also trying to get other things through. You know, like a budget.

          I do think it's dangerous, in the long run, regardless.

        •  ... (0+ / 0-)

          You're going to completely ignore the fact that Congress gave the office of the president this power?  The Congress has the power to tell the president "hey buddy, sit on this and rotate" and repeal it today IF they chose to, but none of them want to.  So it's kind of loopsided to blame the president for using the power the Congress and Senate gave him, and the Supreme Court let's him use.

          I'm not insulting your intelligence, you just refuse to use.  Big difference.

          The greatest trick the Devil ever pulled was convincing online commenters that they have anything to say.-- B.F.

          by lcj98 on Fri Mar 08, 2013 at 09:55:06 AM PST

          [ Parent ]

          •  So he has no choice but to use it? (3+ / 0-)
            Recommended by:
            PhilJD, Brown Thrasher, aliasalias

            See, this is where you lose the argument. Sure, congress may have given the president this power, even obligation, but it's entirely within his power to NOT use it, as unnecessary, dangerous, even unconstitutional. There is no gun to his head forcing him to do this. He can just pull a Nancy Reagan--as he's done with DOMA. So yes, you're insulting my intelligence.

            "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

            by kovie on Fri Mar 08, 2013 at 09:57:37 AM PST

            [ Parent ]

            •  Right... (0+ / 0-)

              Give the president all of this power AND expect him not to use it, especially when it come to national security.  Yeah, that's rational thing.

              The greatest trick the Devil ever pulled was convincing online commenters that they have anything to say.-- B.F.

              by lcj98 on Fri Mar 08, 2013 at 10:09:19 AM PST

              [ Parent ]

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