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Considering today's scheduled testimony by John Brennen in his confirmation hearing to be the new head of the CIA as well as the release of the legal memos which give justification for the controversial drone strike program - I think we're going to find out something we really aren't going to like.

The worst of those, IMO, is likely to be that the Drone Strike Program is Completely Legal as Lawrence Korb described here on Rachel.

The big question of course is "How is it Legal"?  Well, I have a few ideas.

The first problem is that this program is not being conducted as a law enforcement exercise, it's being conducted as an extension of the President's power to wage war.  Generally speaking this is no oversight of how the U.S. conducts a War.  Generals don't need to consult a judge and draft a warrant to call for an military attack.  That doesn't happen, it never has.

So when people question where the authority for these strikes comes from, the answer is that it comes from exactly the same place where U.S. Army Rangers can call for an air-strike in Afghanistan or previously, in Iraq.

Inherent in that power, is the potential that the wrong target will be hit.

This is exactly what we saw in the video of the Helicopter Attack on journalists released by Bradley Manning.

The biggest question that has been asked is - How can such attacks be authorized against U.S. Citizens such as al-Awlaki (who clearly had direct ties to al-quada) and his 16 year-old son (who did not!)?  Thinkprogress among others has focused on this.

It should be noted, as Holder did a year ago, that targeted killings of “specific senior operational leaders” are neither novel nor forbidden by the customary law of war. The United States had the right to target Japanese Admiral Isoroku Yamamoto during World War II, and we were not forbidden from targeting Osama bin Laden because he merely directed attacks against the United States instead of participating in those attacks himself. The DOJ white paper concerns a somewhat more challenging legal question, however — what would have happened if Yamamoto or bin Laden had been born in the United States, and thus enjoyed all rights accorded to U.S. citizens?
I frankly don't think that it would change anything if Yamamoto or Bin Laden had been born in the U.S.  And the reason for that is simple, U.S. Citizens don't get Special Rights when they are overseas when compared to foreign nationals.

Why not?

The Equal Protection Clause is Why Not.  This is something the Supreme Court has confirmed in several cases, including the Habeaus case filed by Yasi Hamdi who was an American Citizen born in Louisiana being held in Guantanamo.

The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could be properly detained as an enemy combatant,[7] without any oversight of presidential decision making, and without access to an attorney or the court system. The administration argued that this power was constitutional and necessary to effectively fight the War on Terror, declared by the Congress of the United States in the Authorization for Use of Military Force Act passed after the September 11th terrorist attacks. The government used its detention authority to ensure that terrorists were no longer a threat while active combat operations continued and to ensure suspects could be fully interrogated.


Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold a U.S. citizen indefinitely without basic due process protections enforceable through judicial review.

Through this case Hamdi was able to have his day in court and has since been released.  Further this case acted as a precedent for cases involving non-U.S. Citizens such as Salim Hamdan v Rumsfeld.
Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which established that detainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review before the Combatant Status Review Tribunal. It determined that he was eligible for detention by the United States as an enemy combatant or person of interest.
Under this decision Hamdan, the citizen of Yemen, was granted the same Habeaus relief that had been afforded to Hamdi the U.S. Citizen.

The problem with equality, is that it's equal.

If Habeaus relief couldn't be denied to Hamdi, then it couldn't be denied to Hamdan. If the U.S. has the authority to go after Bin Laden using deadly force because of his involvement with al-Qeada, then it has the same authority to go after al-Awalaki for the exact same reason. This is further made clear when you apply the 14th Amendments Equal Protection Clause fully.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is interesting that immediately after establishing the persons born or naturalized in the U.S. are citizens and affording the rights and privileges of citizens, that the amendment then goes on to address Persons - which would include non-citizens - who may simply be within the jurisdiction of our laws, regardless of how they may have come into that jurisdiction.

We can not execute a citizen or even a non-citizen without due process - however if we can implement a military attack against a non-citizen, we can do the same to even a U.S. citizen who has allied themselves with an enemy of this nation.  Equal is Equal.

And this is the rub, as Thinkprogress further describes.

The Constitution provides that no person may be “deprived of life, liberty, or property, without due process of law,” but it gives no further guidance on exactly how much or what kind of process is “due” to a U.S. citizen who becomes a senior leader of our enemies. Normally, Americans look to the judiciary to provide procedural rights, but federal judges are ill-suited for the kind of swift decision within a narrow window of opportunity that is required in this context. The only circumstances in which the targeted killing of a U.S. citizen could ever hypothetically be justified are ones where the citizen is directly engaging in hostilities against the United States — and there’s a reason judges don’t review generals’ targeting decisions before they’re made. Judges specialize in thoughtful, languid decision-making of the kind that often takes months to consider all arguments on both sides of a dispute. And they typically rely on briefing on both sides of an issue — something that is obviously impossible when one party to a dispute is a top-level terrorist about to be targeted by a military strike. It is true that judges do sometimes handle swifter matters, such as authorizing search and arrest warrants, but judges typically have a deep understanding of criminal law and are familiar with the issues that often arise in the criminal context. Few judges are prepared to make a quick judgment on military matters.

But if judicial pre-approval of military orders isn’t a realistic means of regulating targeted killings, DOJ’s framework calls for the other extreme — leaving the decision to kill a senior enemy combatant in the hands of “high-level” executive branch officials who are ultimately responsible to the President. This framework ensures both that decisions can be made swiftly and by officials with a broad understanding of both the details of a particular operation and of the laws governing war. But it also means that there is little external check on an executive branch eager to use its power irresponsibly. And even if you trust President Obama to not abuse a power to order targeted killings, there is no guarantee that the next president can also be trusted.

Between the two extremes, DOJ is probably right as a matter of law that the administration can act without independent oversight. Regardless of the wisdom of the broadly worded Authorization for Use of Military Force against Al-Qaeda and related terrorist forces, the AUMF is a duly-enacted Act of Congress, and the President’s wartime power is at its apex when he acts “pursuant to an express or implied authorization of Congress.

Another argument against the Drone Strikes, has been the argument that the U.S. has not "declared war" with countries such as Pakistan, Yemen and Somalia where the majority of the strikes have been carried out.  But that, unfortunately, is not what the AUMF says.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
This Authority was granted to President Bush and remains in effect with President Obama allowing him to attack any person, organization or nation that he determines is engaged in terrorism.

Even if he gets it wrong.

Many people are troubled by the "imminent" definition that has been shown to be highly broad in the already released White Paper on the Drone Memos.  Frankly compared to the AUMF, that restriction is actually an improvement.  Not a very good improvement, but an improvement none-the-less.

So that leaves us in a very uncomfortable position.  On a certain level these strikes may very well be fully legal, but that doesn't mean that they are moral or "wise" as was alleged by Jay Carney this week.

The efficacy of target selection seems to clearly have some problems.  The lack of transparency in choosing targets, and the lack of after-the-fact judicial relief for collateral damage or frankly - incorrectly chosen targets - remains outstanding.

If we're dealing with persons in countries which will not cooperate with us in capturing them - which clearly would exclude persons inside the U.S. (posse comitatus) or in friendly countries such as those in Europe where we have extradition treaties in place - then what are our options other attempting more bin Laden-ish strikes using U.S. Special Forces?  We can't do that in every case.  And we have to remember there's a reason we haven't implemented such raids on a regular basis - and that reason is called "Black Hawk Down".  In fact the Armed Drone  program was originally started by President Clinton after his failure to capture Aristide in Somalia and his failed Cruise Missile Attack on Bin Laden back in 1998.  This was intended as the Solution, now it's brought us a whole new set of problems.

If we want to bring this process out of the darkness of national security and war, and into the light of law enforcement, warrants and judicial oversight - we may need to consider a full and outright repeal of the AUMF and functionally End the War.

Yet when we can still have attacks such as the one we saw last September 11th at our Consulate in Benghazi we have to realize that we do have enemies who are willing to use military equipment and mortars against us, then we need to use the best tools we have against them.  Military tools.

Even if use of that Military Firepower (whether it's a Raid, Drone or B-2 Bombing) can sometimes (almost always) hurt innocents in the process, this is a very sad truth indeed.


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Comment Preferences

  •  the war on terror is forever (7+ / 0-)

    because in its name, so many bad things are made legal.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Thu Feb 07, 2013 at 08:03:23 AM PST

    •  War on Terror (2+ / 0-)
      Recommended by:
      Laurence Lewis, Yasuragi

      is a horrible label.  You don't declare war on a tactic.  It should be called a war on terrorists or probably best the term "war" shouldn't be used at all.  Truly it's a police action including pre-emptive strikes against individuals that have been pretty much agreed upon throughout the world to be enemies of mankind.  Of course that brings up lots of gray areas and possibilities for mistakes but conventional legal means of finding them, arresting them, charging and convicting them of their crimes is nearly impossible given the havens they go into so your hand is forced to use extraordinary means of protecting the innocent from them.  

      While I trust the Obama administration to exercise this great power wisely and with the best and most honorable of intentions, it's a scary power in the wrong hands.  I don't know the answer to it but I don't believe that the problem is the drones themselves.  They're simply a weapon.  Were they not around we'd be using even less precise means of doing the exact same thing.  

      "A celibate clergy is an especially good idea, because it tends to suppress any hereditary propensity toward fanaticism." -- Carl Sagan

      by artmartin on Thu Feb 07, 2013 at 09:39:50 AM PST

      [ Parent ]

      •  i don't trust anyone (3+ / 0-)
        Recommended by:
        SpecialKinFlag, allenjo, Nada Lemming

        with such powers. i trust in fairly administered due process.

        The cold passion for truth hunts in no pack. -Robinson Jeffers

        by Laurence Lewis on Thu Feb 07, 2013 at 10:00:46 AM PST

        [ Parent ]

        •  Awesome. Great concept (0+ / 0-)

          You tell me, given the extreme circumstances of some of the people targeted by the drones, their immense potential for bringing about some very devastating terrorism in a short period of time, just how this due process you ask for can get administered quickly enough to stop those acts and I'm right there behind you.  

          Daily you put life or death powers into the hands of duly appointed representatives of yourself and trust them to administer that power justly and properly.  A policeman can make a decision on his own to kill another citizen if he decides that person is a threat to those around him on the spot without judicial decision and in almost all cases that right is upheld as long as the policeman's intent was to protect the public.  

          I think Obama is just as uncomfortable with this power as you are with him having it and he finally has the political capital to address it with this appointment and disclosure.  I see no simple answer.  I truly doubt you have one either.

          "A celibate clergy is an especially good idea, because it tends to suppress any hereditary propensity toward fanaticism." -- Carl Sagan

          by artmartin on Thu Feb 07, 2013 at 10:57:06 AM PST

          [ Parent ]

          •  were the threats imminent? (0+ / 0-)

            there were no other options? according to who?

            The cold passion for truth hunts in no pack. -Robinson Jeffers

            by Laurence Lewis on Thu Feb 07, 2013 at 11:34:15 AM PST

            [ Parent ]

            •  I don't know (0+ / 0-)

              Do you?  I trust that some stuff has to stay classified even after the fact, things that if disclosed, would give bad guys an edge on preventing discovery next time.  Bottom line is we elect people to act as our representative and each of us don't get a say in each action taken.  We can be annoyed by it, work to elect folks with high ethics and the ability to react properly when faced with impossible tasks, and we can debate openly and honestly.  The rest pretty much falls on them especially in times when they may deem that a decision has to be made fast and with the information available at the time.  There has to be some latitude given in my opinion.

              "A celibate clergy is an especially good idea, because it tends to suppress any hereditary propensity toward fanaticism." -- Carl Sagan

              by artmartin on Thu Feb 07, 2013 at 11:52:39 AM PST

              [ Parent ]

        •  Obama administration proves less forthcoming (1+ / 0-)
          Recommended by:
          Laurence Lewis

          February 6, 2013 - Skygall - Drone Strike Details...

          The Obama administration proves less forthcoming regarding the legal basis for drone strikes than it was with Bush-era torture memos.

          "Who are these men who really run this land? And why do they run it with such a thoughtless hand?" David Crosby

          by allenjo on Thu Feb 07, 2013 at 11:12:30 AM PST

          [ Parent ]

      •  it's a scary power in any adminstration's hands. (0+ / 0-)

        The "real problem" is no administration should ever have this type of power.

        While I trust the Obama administration to exercise this great power wisely and with the best and most honorable of intentions,

        "Who are these men who really run this land? And why do they run it with such a thoughtless hand?" David Crosby

        by allenjo on Thu Feb 07, 2013 at 11:07:08 AM PST

        [ Parent ]

        •  My hunch is (0+ / 0-)

          that President Obama agrees with you and this appointment and the disclosure of the paperwork is a way of forcing this very debate to to the American public.  I don't see simple answers.  If you take away the power completely are you willing to live with the risks that the power may prevent?  If so that's your voice in this debate.  There are many on the other side.  Let's just keep it respectful of one another and agree that your use of the word "should" is an opinion.   I'm not even sure the rest of the world knows the answer.

          "A celibate clergy is an especially good idea, because it tends to suppress any hereditary propensity toward fanaticism." -- Carl Sagan

          by artmartin on Thu Feb 07, 2013 at 11:15:36 AM PST

          [ Parent ]

  •  How long do you keep believing that civilians (8+ / 0-)

    deaths are "incidental"?

    Would you believe it if Bush was bombing funerals?

    "I have often seen people uncivil by too much civility, and tiresome in their courtesy." Michel de Montaigne

    by JesseCW on Thu Feb 07, 2013 at 08:08:25 AM PST

    •  I think they're horrible (7+ / 0-)

      the question is how many American Lives do we have to risk in order to bring down that collateral impact?  The Drone Strike program may be the ultimate in that argument, our risk is effectively zero - their risk and damage is maximized.  So instead should we put a pilots life at risk, and perhaps some Special Forces - can we guarantee that even they won't still have innocent casualties?

      I do think that we have over-relied on the Drones and chosen targets poorly.  Something has to change.

      But in exchange for that horror how many of our lives are worth losing in order to save (maybe some of) their lives?

      I don't know if there's a good answer to that.

      •  it depends (6+ / 0-)

        on whether we want even to be able to pretend that we are a moral and just people.

        The cold passion for truth hunts in no pack. -Robinson Jeffers

        by Laurence Lewis on Thu Feb 07, 2013 at 08:26:53 AM PST

        [ Parent ]

      •  I totally reject that (5+ / 0-)

        First of all, this perpetual war thing is absurd.  I get the point of getting Obama.  I'm no saint, I even get the point of considerable massive retaliation to discourage more attacks.  

        But this idea that we alone among nations have the right to visit death on others with no risk of death to ourselves forever and a day equates the United States with God and  not a very nice God at that.

        Would we strike Russia? China? the UK, France with a drone if they didn't accept our dodgy "evidence"?  No, because they can defend their sovereignty.  

        We only strike those who cannot defend themselves.  And of course, if you are a terrorist this is exactly why they believe they are justified in using any method they can to strike back at us.  

        We are the most powerful nation on earth with a military not even second to the next dozen combined and we are the most fearful, paranoid, people on the planet.  

        I'm guessing based on the number of deaths so far in my state , that we've had more Americans die of the flu this season than died on 9/11 but we can't even be bothered with public health.  We don't care how many thousands die from gun violence even if we are currently pretending that we do.  Yet we'll kill people thousands of miles away on the excuse that maybe, someday, they might if lucky and if all the stars aligned be able to kill a few Americans.

        We do not have the moral justification for this massive overreach of power whatever legal justification anyone can dream up.

        •  ahem... (0+ / 0-)
          I get the point of getting Obama.
          I knew what you meant but I'm just pointing this out...

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

          by lcj98 on Thu Feb 07, 2013 at 08:56:17 AM PST

          [ Parent ]

        •  We have extradition we many of those countries (3+ / 0-)
          Recommended by:
          cotterperson, artmartin, Yasuragi

          and have other treaties that give us more flexibility in addressing concerns about terrorists without resorting to Drone Strikes in Russia, or China or the UK.

          Frankly, all of them handle terrorists more harshly than we do - so there isn't that much reason for us to act independently most of the time.  None of them can expect a Drone Strike anytime soon, and for good reason, there's no need.

          Similarly there's a reason Yemen and Somalia "can't fight back" - they don't have a functioning government.  Similarly that lack of a government isn't doing all that much to stem terrorism on their own. Pakistan could do something about it - they just Don't, and you can't say they're "helpless" since they have the bomb.

          These situations are not simple or one-size-fits-all.

          As far as perpetual war goes - that's what the AUMF signed us up for, and my view is that we're rapidly approaching the time when we need to repeal the AUMF and End this War's perpetuation.

          •  Rep. Barbara Lee... (10+ / 0-)

            the only one to vote against the AUMF - agrees with you and has introduced legislation to repeal it.

            I am frankly amazed at the silence from progressives on that.

            Almost everything you do will seem insignificant, but it is important that you do it. - Mahatma Gandhi

            by NLinStPaul on Thu Feb 07, 2013 at 09:02:12 AM PST

            [ Parent ]

            •  Barbara Lee, the voice of sanity in DC (1+ / 0-)
              Recommended by:

              from your link.....

              “Nine years ago, I made the unpopular decision to vote against this authorization based on a fundamental belief that a blank check to wage war anywhere, at any time, and for any length does not serve the national security interests of the United States,” said Congresswoman Lee. “In reflecting on the rush-to-war in Afghanistan and President Bush’s misguided war-of-choice in Iraq, my worst fears have unfortunately been realized.
              “Over the last nine years this broad authorization of force has had far-reaching implications which shake the very foundations of our great nation and democracy.
              “It has been used to justify warrantless surveillance and wiretapping activities, indefinite detention practices that fly in the face of our constitutional values, extrajudicial targeted-killing operations, and a policy of borderless and open-ended war that threatens to indefinitely extend U.S. military engagement around the world.

              "Who are these men who really run this land? And why do they run it with such a thoughtless hand?" David Crosby

              by allenjo on Thu Feb 07, 2013 at 11:16:23 AM PST

              [ Parent ]

            •  Thank God for Barbara Lee (2+ / 0-)
              Recommended by:
              Yasuragi, Nada Lemming

              I attended the Lawyers' Committee for Civil Rights of SF MLK Luncheon last week and she was the keynote.  You can only imagine the speed with which I jumped out of my chair applauding when she announced that she was going after full repeal of the AUMF, on the grounds that the scope of the power granted under it is itself ultimately a danger to America given how it has been used--and in far more insidious ways than we think of when we think about the war on terror.

          •  Somalia is very relevant here in Minneapolis (0+ / 0-)

            We have tens of thousands of Somali refugees here.  Their children were born here, are citizens of course.  Some get invited back to Somalia to learn about their cultural heritage or to send money back to the old country.  All immigrant groups do this.  But of course, we just might have a few who get within 6 degrees of separation of a Somali terrorist cell.  So which of these Minneapolis citizens are being targeted by drones?  

            As to extradition with other nations, you have to have some charge don't you? I suppose we have some secret deals there too but normally you can't just say send your citizen X to the US because we think he might be a terrorist.  

        •  greenbell - that's a lot of flu deaths (0+ / 0-)

          50 people have died in Indiana, 130 in Minnesota. What state has 3,000?

          "let's talk about that"

          by VClib on Thu Feb 07, 2013 at 04:43:29 PM PST

          [ Parent ]

    •  Bush v Obama (5+ / 0-)

      I know this has been pointed out countless times - and I am NOT saying that Obama is 'worse than Bush' ...

      However, whereas Bush captured and through people into indefinite detention in a network of secret prisons - Obama has avoided this 'conflict' by simply killing these people off

      I am gobsmacked at how little pressure is brought to the administration from the progressive wing of the party on this

      If Brennan passes confirmation smoothly (or, personally - at all) - I think it despicable - there would be a hue and cry if a person like Brennan was put up for a Senate oversight appointment from the progressive side IF such a person was appointed by a Republican - it is a sign of the dysfunction and lack of principles if we don't raise our voices against this ... simply because the current occupant of the White House has a D beside their name!

      "I want to keep them alive long enough that I can win them to Christ," - Rick Warren, Professional Greed Driven Scumbag

      by josephk on Thu Feb 07, 2013 at 08:45:43 AM PST

      [ Parent ]

      •  Well, I may not enjoy paraphrasing (3+ / 0-)
        Recommended by:
        cotterperson, artmartin, Yasuragi

        Kathyrin Bigelow, but I would say that Brennen's being in the CIA during the rendition program (which was started by Clinton) or the Drone Program (which was also started by Clinton) doesn't mean that he advocated for their indiscriminate use.  From what I've heard the opposite may be true, and that Brennen has actually advocated to move the Drone program out of the CIA, where it faces various conflicts of interests, and back into the Military where the rules of war are more clearly drawn.

    •  That doesn't change the legality of it, (1+ / 0-)
      Recommended by:

      even if it stokes outrage and furrows brows.

  •  Thanks, Vyan, (6+ / 0-)

    for another excellent diary. I suppose I should watch the Brennan hearing today, if I have the courage of my convictions -- which are no doubt most unpopular.

    We have been at war my entire adult life, and it makes me sick that my country routinely massacres hundreds of thousands of people by our own hands or by arming others worldwide. For example, in Iraq, 650,000-1,000,000 dead. Vietnam, Cambodia, Laos -- total civilian dead: 465,000–2,500,000. Hundreds of thousands of innocents.

    Drone strikes have killed 3,000-4,600, depending on the source, no doubt many of them innocent. Is it wrong? Absolutely. Is it better than killing 100 times that many? Yes, I think so.

    The fewer dead the better. Less suffering is better than more suffering.

    "Let each unique song be sung and the spell of differentiation be broken" - Winter Rabbit

    by cotterperson on Thu Feb 07, 2013 at 08:20:07 AM PST

  •  I do not expect special rights.... (2+ / 0-)
    U.S. Citizens don't get Special Rights when they are overseas when compared to foreign nationals.
    But because I am overseas does not mean that my citizenship is revoked. Just ask the IRS.

    I guess I have no country anymore. Because I am not a citizen of any other country.

    This better be good. Because it is not going away.

    by DerAmi on Thu Feb 07, 2013 at 08:23:16 AM PST

    •  Citizenship affords some privileges (4+ / 0-)
      Recommended by:
      lcj98, johnny wurster, artmartin, Yasuragi

      but not rights. No it's not revoked. Frankly, if the police decide that you're a threat - without any judicial review (although sometimes with a warrant) - they can kill you on American Soil, citizen or not.

      I don't see how you think being a "citizen" protects you from this? It never has. U.S. Citizens fighting with enemy forces take their chances. We execute traitors too.

      •  You have gone off the deep end. (1+ / 0-)
        Recommended by:

        And I am not fighting with enemy forces nor am I a traitor. So that part of your reasoning is completely irrelevent.

        You do not understand that we have a system of government that has been based upon rights and not privilidges?

        This better be good. Because it is not going away.

        by DerAmi on Thu Feb 07, 2013 at 08:34:47 AM PST

        [ Parent ]

        •  No, unforunately I have not - (4+ / 0-)
          Recommended by:
          lcj98, cotterperson, artmartin, Yasuragi

          gone anywhere. Our system of governing is indeed based on rights and limitations to government.  Citizenship affords you the ability to vote, but does not protect from police action on our soil or military action overseas - that is all I'm saying.

          I think the bigger issue is managing when such action is genuinely necessary against anyone, when exactly is someone determined to be an "enemy combatant" not just citizens.  I don't think U.S. Citizens get some protection from being a possibly military target, other than some (former) limitations for surveillance under FISA, that everyone else doesn't get, we're all equally at risk.

          If you think they do - please feel free to quote the Constitutional provision or law that says so. I'm willing to listen.

  •  War crime (6+ / 0-)

    You do know that what Obama is doing is against international law, right. Just asking.

  •  This is absolutely (7+ / 0-)

    the correct analysis.

    The first step needs to be to end the war.

    The second is to codify oversight in dealing with terrorist threats.

    Almost everything you do will seem insignificant, but it is important that you do it. - Mahatma Gandhi

    by NLinStPaul on Thu Feb 07, 2013 at 08:24:03 AM PST

  •  On the Brennan hearings, (6+ / 0-)

    Spencer Ackerman has quite the scoop.

    Ben Emmerson, the United Nations special rapporteur for human rights and counterterrorism, tells Danger Room he’s giving his qualified backing to John Brennan, President Obama’s top counterterrorism adviser and nominee to become CIA director.

    Almost everything you do will seem insignificant, but it is important that you do it. - Mahatma Gandhi

    by NLinStPaul on Thu Feb 07, 2013 at 08:29:01 AM PST

  •  So, a person could legally be shot on sight (0+ / 0-)

    For having a joint in his pocket...its a "War on Drugs"?

    "We refuse to fight in a war started by men who refused to fight in a war." -freewayblogger

    by Bisbonian on Thu Feb 07, 2013 at 08:52:00 AM PST

    •  Weren't you paying attention to Occupy? (2+ / 0-)
      Recommended by:
      cotterperson, Yasuragi

      Yep.  It's happened.  Many times. I'm always talking about U.S. Citizens - who might happen to be Black, or Brown or fit a certain "profile" who get wrongly targeted by police violence under the rubric of "Self Defense". The Drone Strike program has the same problems.  I'm not saying it's right, I'm just saying - this is always been what it is.

    •  We give police officers (0+ / 0-)

      the right to end a life and to make that decision on the spur of the moment without judicial intervention during the course of that decision.  Of course nobody should be shot for having a joint in his pocket and a cop that was found to do that would be up for murder charges if it could be proven.  

      While we have abuses of that system and corrupt cops and leadership do exist, overall we don't have policemen walking down the street indiscriminately killing people even though we give them to power to end a life should they deem the person is a threat to themselves or society.  We trust that overall granting that power does us more good than harm.  

      So I think the debate needs to not be should the President have the right to use lethal means quickly and without some lengthy court decision but instead what checks can we have in place that would shine the spotlight on abuse if it becomes systemic.  Police have an internal affairs division that polices the police.  I would think there are people in place in the drone process that act in a similar fashion.  If not then maybe it's where we start.  

      "A celibate clergy is an especially good idea, because it tends to suppress any hereditary propensity toward fanaticism." -- Carl Sagan

      by artmartin on Thu Feb 07, 2013 at 12:08:42 PM PST

      [ Parent ]

  •  Oh bullshit (3+ / 0-)
    Recommended by:
    chuckvw, SpecialKinFlag, snoopydawg

    The US can't simply decide that it's at war against whomever it chooses:

    Under international law, an armed conflict can only exist if such "associated forces" have a level of organization that would allow them to assume their obligations under international humanitarian law and if there are ongoing hostilities against the United States of sufficient intensity and duration. That's not necessarily the case in Yemen, Somalia, or any of the other myriad places where the United States is reportedly fighting al Qaeda militants.
    Or forget about international law for sec. No reasonable reading of the 2001 AUMF shows the it authorizes the US to wage war against groups, like Al Shabab, that didn't even exist on 9-11.

    Even if you accept the far-fetched claim the US armed conflict against AQ and associated forces in Yemen and elsewhere is legit, the US still must follow International Humanitarian Law (The laws of war) and there's much evidence that it's not doing so, although the extent of war crimes -- there's not other word for them -- is hard to discern because much of the info remains secret.

    There's a case to be made that the drone war isn't illegal by design, but the way it's being carried out is illegal. Signature strikes, for example. which account for most targeted kills, are those in which the identities of the targets aren't know, raise a host of legal problems.

    That's just on issue. Judging by Brennan's own words, te admin also fails to properly distinguish between combatants and civilians:

    Being a member of al Qaeda or "associated forces" might not mean directly participating in hostilities against the United States. It might mean instead providing assistance to fighters, such as cooking, cleaning, or driving -- none of which would render such a "member" targetable. The law of armed conflict allows the targeting only of those directly participating in hostilities or otherwise performing a continuous combat function.

    Brennan's statement of the law, however, lumps all these people into one droneable category -- a clear misapplication of international humanitarian law that offends the most fundamental principle of that law: the principle of distinction between combatants and civilians.

    I agree with you that the morality of wisdom of the war must be challenged, and that it doesn't make a difference whether the victims are American, but please don't buy the administration line that this is legal.
    •  I'll get back for a full response to this later (2+ / 0-)
      Recommended by:
      artmartin, Yasuragi

      since I have to go wot work right now but my initial response is that the AUMF already did exactly that - it opened the potential for unlimited war.  That was the POINT, since al Qeada is an organization, not a nation.

      We already crossed that Rubicon a decade ago.  Now we're starting to notice, and we don't know exactly how to pull back anymore.

      •  Many of noticed (1+ / 0-)
        Recommended by:

        ten years ago when we cheered Barbara Lee's heroic vote.

        But as I say above, the AUMF doesn't make the U.S exempt from International Humanitarian Law and International human rights law.

        It's a complex and sometimes esoteric discussion that, frankly, few people here, me included, can have with authority. I've read a lot about international and I work for a human rights organization, but it's still floats a little above my head. But I know this: to defend this legality of this, you must rely not on the 2001 AUMF but on international law -- the Geneva Conventions and other treaties.

        •  Ok, first of all (2+ / 0-)
          Recommended by:
          Yasuragi, VClib

          your first link is a quote from a blog post, not from the text of some international law. The original source of the claim seems to be a letter from Human Rights First to President Obama..

          This legal analysis here goes into the issues of International Humanitarian Law more throughly and this is the section I find most relevant.

          The express legislative authorization in the AUMF, read in conjunction with the wartime powers of the executive under Article II, endow the President with expansive authority to act on use of force questions in the post-9/11 context.[70] In addition, the President has the authority to issue findings to authorize CIA action beyond the parameters of Congressional authorization as long as such action does not otherwise violate domestic law.[71] Some argue that this allows the President to authorize the CIA to take pre-emptive lethal action in self-defense against terrorists in response to an imminent threat, without first obtaining Congressional approval.[72] While all US presidents have embraced an executive order issued by President Gerald Ford in 1976[73] prohibiting political assassination,[74] at least two presidents have reportedly relied on classified legal memoranda to conclude that “executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action.”[75]
           But let me take it as a given anyway that international law would not recognize a struggle against the "group" called al Qaeda as being legitimate since they are not a "government" despite the UN Security Council Resolution 1373 which authorized and supported our initial invasion of Afghanistan for exactly that reason.  
          Reaffirming the need to combat by all means, in accordance with the Charter, threats to international peace and security caused by terrorist acts, the Council expressed its determination to take all necessary steps to fully implement the current resolution.


          “(a)  Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;

          “(b)  Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;

          “(c)  Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;

          And UN SCRes 1377 which seconded that stance.  Neither of these limited any of these actions to a "State" or it's military forces, but rather called on all States to do "everything necessary" to combat terrorism.
          Declares that acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-first century,

          Further declares that acts of international terrorism constitute a challenge to all States and to all of humanity,

          The remaining problem is that international law only applies to the U.S. if it has accepted the jurisdiction of the relevant court and or we have signed and ratified a treaty supporting that law.

          In the case of the International Criminal Court - we have not ratified it, and therefore it does not (yet) have jurisdiction over U.S. policy or law thanks to George W. Bush.  A suit or case could be brought by the ICC, but the U.S. is not bound to recognize it as legitimate.  It's far more likely that the families and victims of drone strikes can bring suits for damages against the President in U.S. Courts, or in the courts of the UK if the victim was one of their citizens - which they have, although not with any real success yet.

          The Geneva Conventions on the other hand are a Treaty which the U.S. has ratified, which makes it an extension of our own Constitution, and has thus been further supported by Congressional Legislation such as the War Crimes Act  18 USC § 2441.  However, in 2006 Congress amended the War Crimes Act with the Military Commissions Act, and nothing within that act could be shown to be violated by the use of drone strikes except for this one:

          (D) Murder.— The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.
          So when you say the President is committing a "War Crime" then you're basically accusing him deliberate cold, calculated Murder.  That's a stretch that first requires you to verify that his use of his war powers in these instances is invalid. If the AUMF and UNSec 1373 are valid - then he is not committing Murder, he's waging War.

          I agree that there are some big problems with Signature Strikes, and that the overall selection of targets seems deeply flawed, however I don't disagree with the administration "aiding and abetting" view of non-combatants who may be in the field of fire among a host of legitimate targets.  In many ways, this isn't something that the courts and possibly not even congress can interfere with and change because War Powers belong to the President, his Chiefs and his Cabinet.

          The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
          I question the legitimacy of the target selection in the first place, not necessary the President ability to use of drones to take those targets out when all other options are non-viable.
    •  It's certainly lawful under US law. (1+ / 0-)
      Recommended by:

      I'm happy to concede that it's a tougher call under international law, but so much the worse for intl law.

      •  No, it's not (2+ / 0-)
        Recommended by:
        Bisbonian, Nada Lemming

        certainly lawful under U.S. law. It's not clear at all that, for example, a law that authorizes the prez "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001" authorizes him to go after orgs that didn't exist on 9-11-01 and people who were, say, seven years old on 9-11-01.  

        •  It's very clear. (2+ / 0-)
          Recommended by:
          artmartin, VClib

          The individual just has to be a member of an associated force.  Consider the absurd result of your position: people could form a new offshoot in 2009 and join the Taliban's attack on US soldiers, and, because the group wasn't in existence in 2001 you're saying they couldn't be targeted.  That's insane.

          And if you look at the DC Circuit habeas cases, there's no evidence whatsoever that the org would have to be in existence at the time of 9/11.  They only need to be affiliated with al-Qaeda.

          •  And think about the insanity of (2+ / 0-)
            Recommended by:
            Bisbonian, Nada Lemming

            yours, that a group vaguely inspired by AQ pops up in Indonesia or Kenya tomorrow but has no operational connection to core-AQ and poses no threat to the United States -- the US can drop drones on them?

            The 2001 AUMF was intended to give the president the authority to wage war against those responsible for 9-11. It was not a license to wage war against a web of loosely and barely affiliated groups that share an ideology.

      •  re: al-shabab: (2+ / 0-)
        Recommended by:
        artmartin, VClib
        No reasonable reading of the 2001 AUMF shows the it authorizes the US to wage war against groups, like Al Shabab, that didn't even exist on 9-11.
        As a matter of US law, we're able to fight al-Qaeda and any associated forces.  The courts have held that, and it's pretty much settled as a matter of domestic law.

        As a matter of intl law, al-shabab would have to be integrated into the al-Qaeda command structure.  Given that this is a non-international armed conflict, we can target any member of al-Qaeda anywhere; if al-shabab is integrated into al-Qaeda, then we can target them anywhere in the world.  The Wikipedia article notes that the head of al-shabab has sworn allegiance to al-Qaeda, that al-Qaeda has exercised some control over the head of the group at some points in time.  That means that, at a minimum, there is a reasonable argument that they are legitimate targets under intl law.

    •  Wanna try being a little MORE (0+ / 0-)


      Anyone else would've gotten HR'd for that subject line.

      "Throwing a knuckleball for a strike is like throwing a butterfly with hiccups across the street into your neighbor's mailbox." -- Willie Stargell

      by Yasuragi on Thu Feb 07, 2013 at 02:40:03 PM PST

      [ Parent ]

  •  Vyan... damn... (1+ / 0-)
    Recommended by:
    If we want to bring this process out of the darkness of national security and war, and into the light of law enforcement, warrants and judicial oversight - we may need to consider a full and outright repeal of the AUMF and functionally End the War
    However, I believe most people here won't see that as going far enough.

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

    by lcj98 on Thu Feb 07, 2013 at 09:04:56 AM PST

  •  Rep Barabara Lee who was the only member of (4+ / 0-)

    Congress - I have to repeat that . . .  the ONLY member of 535 elected officials in the House and Senate . . . who voted against the 2001 AUMF introduced legislation to repeal it during the last session.   Rep. Lee is pretty cool in my book.  She publishes a diary on Kos now and then.   She can't do this work all on her own.  

    Sometimes I think Americans don't know how to connect things.  Like the psychopathic killer in the movie "Memento" they can't remember anything they did more than 15 minutes ago so they can't understand what's happening in front of them.  

    The thread of drone strikes and how they've been used goes right back to the never ending War on Terror and   the 2001 AUMF.   It says “the President is authorized to use all necessary and appropriate force .“  

    "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

    by leftreborn on Thu Feb 07, 2013 at 09:16:13 AM PST

  •  Well, just like the Second Amendment, (1+ / 0-)
    Recommended by:
    Nada Lemming

    the AUMF from 2001 starts with a clause that is designed to circumscribe its power. The AUMF was not written to include all conflicts concerning all locations, times, and people just because a President mouths the magic word "terrorism."

    It's no surprise, though, that folks from both parties have conveniently forgotten the first half of the AUMF's text, just like they've declared the first 60% of the Second Amendment "inoperable."

    However, the AUMF (note the section that the OP highlighted) was written to allow for military force in relation to September 11, 2001. There is no earthly way that the 16-year old Abdulrahman al-Awlaki met any of those criteria, since he would have been 7 or 8 years of age at that point. Yet he was still vaporized on the order of the current President. Unless, of course, we now have American citizens who are merely "collateral damage."

  •  Casually speaking, (1+ / 0-)
    Recommended by:
    Nada Lemming

    and about the Administration take on the the kill and capture power, I don't think it's true to say, simply:

    it comes from exactly the same place where U.S. Army Rangers can call for an air-strike in Afghanistan or previously, in Iraq.
    • They are making a distinction of "hot battlefield" (Afghanistan) or not.
    • They are at least talking about "due process" (they say they have enough).
    • They are using language like "as informed by the principles of the laws of war" and "AUMF as informed by law-of-war principles" (being cynical, that just means that they've read it, before they came up with their own scheme).

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