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  •  good point (0+ / 0-)

    The President would need to declare him an "enemy combatant" first.  Certainly a stretch, but since he doesn't actually need to have any evidence....

    Keep in mind that Awlaki's participation was to advocate for Al-Qaeda and talk with people who later participated in bombing plots.  Not sure the first amendment is any protection here once the "enemy combatant" label is applied.

    Touch all that arises with a spirit of compassion

    by Mindful Nature on Thu Apr 25, 2013 at 07:51:58 AM PDT

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    •  He does need evidence, (1+ / 0-)
      Recommended by:
      Mindful Nature

      under the law, but there's not a lot of remedy otherwise.  The internal exec branch deliberations can't be purely arbitrary or nonexistent.  It depends on what one means by "need."  The domestic aspect is the more important distinction.    

      This is what people say about Alwaki, but I'm not sure we fully know the extent.  This might also get it backwards -- the enemy combatant label might be applied because of a determination that the first amendment doesn't adequately protect the conduct.  This would contradict what I said earlier about the importance of imminence, but there's also nothing wrong with seeing the statements as evidence along with other things.  Leach's speech can be necessary but not sufficient for something bad to happen to him, government-wise.

      I suppose Dzhokhar Tsarnaev (stuff in the news) could have been declared an enemy combatant if there were clear ties to Al-Qaeda or an affiliate or successor group under the AUMF, but likely not under existing guidelines.  There'd be no point in doing so -- courts are open and because Bush wasn't involved, no tainted confessions.  It's, I guess, only a matter of time before the Islamists and Christianists form an alliance of convenience, though.  It's be like the 1980s.

      Difficult, difficult, lemon difficult.

      by Loge on Thu Apr 25, 2013 at 09:23:09 AM PDT

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      •  a right without a remedy isn't a right (1+ / 0-)
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        Loge

        if there's no review of the evidence by any third party, then what's the enforcement mechanism?  Essentially, in theory the President needs evidence, in practice if he has none and just says so, the result is the same.

        Which is the main objection to the whole scheme.  

        I am certainly glad that Tsarnaev is headed to civilian trial where it belongs.

        Touch all that arises with a spirit of compassion

        by Mindful Nature on Thu Apr 25, 2013 at 12:48:38 PM PDT

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        •  I'm not suggesting it's a right, (1+ / 0-)
          Recommended by:
          Mindful Nature

          and the statutory limitation on the administration is enforceable, at least in theory, in political channels.

          I'm not sure there's are any practical examples of a President acting without evidence -- or, more frighteningly, evidence of something completely different -- but then, we wouldn't.  In the Alwaki case, I don't see any better options to droning him under existing law, but I do favor the efforts made to codify the drone program, and I'd want at least some kind of "terror warrant" for targeting U.S. citizens or nationals abroad.  I'm just not sure that's constitutionally compelled, because I think so much more depends on the state of the statutory framework.   Constitutional law, it seems to me, is really little more than a very specialized set of rules of statutory construction; Bush's biggest mistake was in thinking he could act without it.  Even an ill-informed, petty, fearful, small-minded, and ignorant Congressional vote is democratically legitimizing.  Scant comfort for some, but Bush's view of executive relations with Congress troubled me the most.  Not that I have any love for Congress, but the idea of it matters .. .

          Applying civilian judicial process to someone captured in the U.S. is a no-brainer, it seems to me, and it's a problem with Bush's and Lindsey Graham's excesses that a line the administration properly draws to distinguish their deepst absurdities doesn't look much like a line at all but rather a bone thrown to the left.  

          Difficult, difficult, lemon difficult.

          by Loge on Thu Apr 25, 2013 at 01:23:17 PM PDT

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          •  I'm not so sure (1+ / 0-)
            Recommended by:
            Loge

            At first I'd thought that in fact it wasn't a right, but ultimately, the fifth amendment guarantees no deprivation of life shall occur without due process of law.  Where the rubber meets the road of course is whether a secret kill order really meets the applicable due process.  I suppose that under the Bush/Obama view, during wartime, that's all the process one is due.  Like you, I'd be more comfortable with something more akin to a warrant, whether to judge or Congress that there is some showing of the evidence that the President is correct. Making that showing does provide a useful check in that it makes the executive at least have evidence.

            I'd like to think that Con Law Prof. Obama sees the value in bringing terror suspects before civilian courts.  Maybe I shouldn't, though!

            Touch all that arises with a spirit of compassion

            by Mindful Nature on Thu Apr 25, 2013 at 03:05:51 PM PDT

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            •  the due process clause (0+ / 0-)

              doesn't apply to most people covered by the AUMF.  It applies to some, to be sure, but then the question then turns on the relationship between due process and judicial process.  In circumstances where judicial process isn't possible, the internal deliberation arguably satisfies both the statutory obligation and the 5th Amendment at once.  In circumstances where that caveat doesn't apply, like a dude hiding in a boat in the Boston suburbs, the power for a secret kill order doesn't derogate existing criminal statutes.  All things being equal, I have trust in Obama not to abuse the power, but the Constitutional minimum is very often short of desirable policy.  That doesn't require second guessing decisions made in the absence of tighter statutory oversight, and the fact that the drone program is being turned over to the DOD, away from CIA and select committee oversight is at least a decent step.  

              I signed up to take a class with Prof. Obama, but he went and won the 2004 Senate Primary :)  My guess is he'd have a lot of different views if he wouldn't be the one having to bear the responsibility if he didn't act and there was another 9/11.  Even still, current policy has to fit the contours of the law, and this does but barely.  The only real decision I'd strongly question is the reversal on KSM being tried in the Southern District, but I think that has a lot to do with the fact that they worry a conviction might not stick because of all of Bush's waterboarding.  I had hoped that a trial would serve the public purpose of "truth and reconciliation" on that issue, without the political risk from indicting prominent republicans and avoiding the legal questions of proving specific intent or having to put up with jury nullification; but you do need a way to find KSM guilty or else it looks bad when you don't let him go.

              Difficult, difficult, lemon difficult.

              by Loge on Thu Apr 25, 2013 at 04:51:54 PM PDT

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