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Part 2 of 3

2013 State of the Union
The president and the Congress must work together to "forge a durable legal and policy framework to guide our counterterrorism operations."
Today, the organization that attacked us on 9/11 is a shadow of its former self. Different al Qaeda affiliates and extremist groups have emerged – from the Arabian Peninsula to Africa. The threat these groups pose is evolving. But to meet this threat, we don’t need to send tens of thousands of our sons and daughters abroad, or occupy other nations. Instead, we will need to help countries like Yemen, Libya, and Somalia provide for their own security, and help allies who take the fight to terrorists, as we have in Mali. And, where necessary, through a range of capabilities, we will continue to take direct action against those terrorists who pose the gravest threat to Americans.

As we do, we must enlist our values in the fight. That is why my Administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism operations. Throughout, we have kept Congress fully informed of our efforts. I recognize that in our democracy, no one should just take my word that we’re doing things the right way. So, in the months ahead, I will continue to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world. - President Barack Obama, 2013 State of the Union Address

In Part 1 of my discussion of the president's policy on targeted killings outside of acknowledged theaters of battle of persons deemed to be enemy combatants, I argued the policy was legal under existing authorities. It led to a spirited debate. While many disagreed with my analysis, I think there is a consensus that whatever the legal status of the current policy, it is inadequate and requires significant changes.

The first step in the analysis requires, at the least, a review and amendment to the 2001 AUMF (PDF). Even better would be a repeal of the 2001 AUMF, as  advocated by Rep. Barbara Lee:

The administration is using the Authorization for the Use of Military Force passed by the House on Sept. 14, 2001, as one of the justifications for the lethal use of drones. As the only member of Congress who voted against this blank check, I believe now more than ever that we must repeal it.
I wholeheartedly agree. But I believe an equally important issue is what authority and framework replaces the 2001 AUMF. My thoughts on this on the other side.    

The first question presented regarding a new legal and policy framework for counterterrorism operations is whether we continue to address the issue from a military and national security framework or does the United States instead shift to a purely criminal law enforcement approach. The excellent Marcy Wheeler advocates for a criminal law enforcement approach. See, e.g., Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This?

Ultimately — as I showed yesterday — the Administration has not been in the business of killing people for crimes they have committed, but for crimes they might commit in the future. And if Congress is going to try to make that legal for CIA especially without modifying the Constitution (heh), they would need to write some really extensive guidelines about what counts as a pre-crime (otherwise known, in the Administration’s language, an imminent threat). Indeed, that would be necessary before any court got stuck with this job.

But no one is talking about doing that work.

Which is really why this court is being considered as an option right now. Because no one wants to talk about what it means to kill in the name of pre-crime, and no one wants to make the difficult decisions about when killing in the name of pre-crime would be sound and when it wouldn’t be.

By adopting the language of "pre-crime," as opposed to the law of war framework of enemy combatants, Marcy is, implicitly, arguing that whether or not there was justification for treating counterterrorism operations as military operations in the past, that justification no longer exists.

This is a reasonable argument. After all, no longer are we engaged in operations that more neatly fit the rubric of military operations—no Tora Bora, no organized Al Qaida resistance in conventional battle settings, etc.

For the sake of argument, let's assume this is true, how then would a counterterrorism operation function under a international criminal law enforcement regime? Does international law and existing treaties provide a workable framework?

Regarding counterterrorism operations, this subject has received scant attention in the United States. (By contrast see 2010 Remarks of Lanny Breuer on international law on corruption and bribery (PDF).)

However, internationally and in the United Nations, there has been significant thought applied to the issue. Emblematic of the thoughtfulness employed is Jean Paul Laborde's paper (PDF) discussing the issue:

In 1994 the United Nations General Assembly established that terrorism was “criminal and unjustifiable, wherever and by whomever committed”… “what ever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them”.1 By defining terrorism as a crime rather than as an international security issue, the General Assembly has chosen a criminal law approach rather than a war model of fighting terrorism.2 While the General Assembly categorized international terrorism in 1994 in terms of a criminal justice model as a serious crime, the United Nations Security Council categorized it, on 12 September 2001, in resolution 1368, “like any act of international terrorism, as a threat to international peace and security”, thereby applying a security rather than a crime model to such acts. It is widely accepted that a number of countries are strongly supporting the Security Council approach while other members of the international community feel more comfortable with the General Assembly method.
Interestingly, Laborde focuses on prevention (or "pre-crime" actions):
Terrorism is one of the gravest crimes. Therefore, it would be logical to conclude that a great deal of attention should be paid to preventing possible terrorist attacks. Referring to the above-mentioned paper a successful proactive criminal justice approach to terrorism prevention would need ‘a strategy to permit intervention against terrorist planning and preparations before they mature into action. The goal is to proactively integrate substantive and procedural mechanisms to reduce the incidence and severity of terrorist violence and to do so within the strict constraints and protections of the civilian criminal justice system and the rule of law’ 4 (emphasis added).

Thus, countering terrorism through penal prevention would mean criminalizing acts that are committed BEFORE any terrorist acts take place. And indeed in recent years, the international community has moved in this direction. Most importantly there were efforts made to criminalize recruitment, training, supplying weapons to, support, financing, conspiracy, incitement, and glorification of terrorism.

I think we can safely say that if a criminal law enforcement approach would prove to be efficacious in preventing terrorism, we can all hold hands and say "kumbaya"—that's the way to go. However, in the international context are states able to comply with their international obligations on preventing terrorism? Consider this international obligation:
The UNSC in its Resolution 1624(2005) further expanded this list of offences to incitement when it decided to “Calls upon all States to adopt such measures as may be necessary and appropriate and in accordance with their obligations under international law to:

(a) Prohibit by law incitement to commit a terrorist act or acts;
(b) Prevent such conduct;
(c) Deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct.”5

And what happens in states that can or will not do this or prevent terrorist activity and organization in their countries? Does a strict and exclusive criminal law enforcement approach work in such scenarios? In my view it does not.

Two of the most noted actions against terrorist organizations occurred in 2011: (1) the operation to kill Osama bin Laden in Pakistan and (2) the killing by drone of Anwar Al Awlaki in Yemen. In both cases, a criminal law enforcement approach, for a variety of reasons, was not workable. In both cases, relying on the 2001 AUMF, President Obama ordered the use of military force.

It is these actions which put to the test whether our current policy provides a "durable legal and policy framework to guide our counterterrorism operations."  I submit that it does not.

My principal concern is the lack of meaningful due process for the persons targeted. As I wrote in Part 1:

In the DOJ White Paper, the Obama Administration argues that the due process requirements are met when (1) an "informed, high level government official" (an undefined term) determines that a person "poses an imminent threat of violent attack against the United States," (2) where a capture operation would be unfeasible, and (3) when such operation is consistent with the laws of war. White Paper, p. 6.

But this is truly not an answer for what we traditionally think of as due process. For lawyers, procedural due process usually means notice and an opportunity to be heard. The Obama Administration Department of Justice argues that traditional notions of notice and opportunity to be heard can not be afforded in these circumstances because of "the realities of war."

To me, this is a compelling argument in practical and legal terms. War includes as a major component, the concept of surprise. It is one thing to provide notice and opportunity to be heard once a person has been captured—the threat is no longer imminent. But while a person believed to be an enemy combatant is at large, the threat is real and the dangers, not only of attack against the country but to the military units involved in the conflict, remain active.

In my view, this explains the difference between the due process afforded a detained person classified as an "enemy combatant" and a person under a kill order.

But this difference does [not] make the process by which the Obama Administration analyzes kill orders in a non-theater of battle setting adequate. What is missing from the process is an advocate for the person who is subject to the potential kill order. Such an advocate, it seems to me, can be provided to the person who may be subject to the kill order. After all, the consequences are much more severe and final.

I believe that a durable legal and foreign policy framework should take the following approach: (1) the default position is that the threat of terrorism be addressed through  a criminal law enforcement approach, compliant with international law and United States law;  (2) if the president believes that there are situations where a criminal law enforcement approach is not adequate, he must inform the Congress of the specific situations where he wishes to depart from the criminal law enforcement approach and invoke his Commander in Chief powers; (3) for persons or organization targetted outside of the criminal law enforcement approach, the president should be required to make a showing to a neutral arbiter, with advocacy against the president's position presented by persons provided the requisite information and opportunity to be heard; and (4) if the president is given the authority to act as Commander in Chief, he must comply fully with international laws of war.

Is this approach unwieldy? Certainly. Does it require new legislation from Congress? Absolutely. But I believe that it provides the preliminary basis for a durable legal and policy framework that (1) is true to our values, (2) is likely to gain international acceptance and (3) will be the most effective manner of not only addressing active terrorist threats but prevent the creation of new terrorist threats.

In Part 3, I will outline the legislation and implementation of this approach and the forging of effective counterterrorism policy, considering existing US law, international law and other related issues.

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Comment Preferences

  •  What was the legal framework, if any (8+ / 0-)

    used to justify Jefferson's sending the Navy and Marines to suppress Barbary pirates in the early 1800's, or TR's ordering Pershing to go after Pancho Villa & his marauders over the border into Mexico? Our laws have changed a lot since these events, not to mention the world, but to my knowledge the applicable parts of the constitution have not (although case law has I'm sure changed our interpretation of it through various controlling holdings). But essentially, these actions, like today's, represented the use of the US military to go after non-state "terrorists", and I'm wondering if the justifications used then apply now, or if these situations are too different and long ago to be useful.

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

    by kovie on Sun Feb 17, 2013 at 08:12:50 AM PST

    •  I'd have to look at that (4+ / 0-)
      Recommended by:
      pamelabrown, kovie, DeadHead, oysterface

      Not sure on the history to be frank.

      •  Armando, (8+ / 0-)

        Do you know if international piracy laws are are substantially different from a criminal law enforcement framework?  If they are maybe they could provide a more apt path to take?

        Good diary, lots to absorb.  Look forward to reading the comments.

        •  I do not (4+ / 0-)

          I guess an addition to my assignment for Part 3.

        •  Really interesting (9+ / 0-)

          From just one search:

          In the classic law of nations, pirates were simultaneously criminals and military enemies. This meant that they had all the disabilities of both classes. They could be captured and tried — unlike prisoners of war. If encountered on the high seas, the pirate could be attacked and killed.44

          Moreover, international law recognized that returning captured pirates to a port for trial could be extremely burdensome for the capturing country. Thus summary shipboard proceedings were permitted.45

          In short, pirates had a status much like unlawful combatants: they could be dealt with either militarily or criminally depending on the convenience of the capturing nation.

          Under modern international law, the situation is reversed. Pirates are not regarded as belligerents under the laws of war, and certainly not as illegal combatants.46 Furthermore, a central provision of the Law of the Sea convention reserves the high seas for “peaceful purposes.”47 Except in situations of immediate self-defense, naval forces cannot make war on pirates, but rather must seek to apprehend them. At the same time, given that pirates would be detained by armed forces and held, at least initially aboard naval ships, there would be strong pressure to give them all the protections of prisoners of war, at least presumptively.48 Indeed, in the theory of the Geneva Conventions widely held in the international legal community49 the campaign against the pirates, to the extent it takes place in Somali waters, could potentially qualify as an “armed conflict not of an international character.” This would entitle pirates to the protections of common article 3 of the Geneva Conventions.50 In short, pirates today would have the protections of criminal defendants, as well as some of those of enemy prisoners, without the disabilities of either.

          Thanks for the thought. Lots to consider here.

          I

          •  Even more of interest (7+ / 0-)
            n another major December development, the Security Council passed a resolution sponsored by the United States allowing the use of military force on Pirates even on dry land in Somalia. For one year period, S.C. Res. 1851 authorizes nations to “undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea.”53 As another chapter 7 measure, it would allow for missile strikes another military assaults on pirate hideouts.54 This gives the coalition navies a tool the absence of which frustrated pirate hunters for centuries.55 This resolution makes even further inroads on the territorial sovereignty of Somalia. The proposal suggests that the United States at least no longer regards the purely criminal model of piracy as satisfactory and is seeking, at least in the context of Somalia, to return to the “war” model as well.

            However, the resolution was immediately criticized – including by an American admiral in he Gulf of Aden56 – as likely to cause significant civilian casualties due to the difficulty of distinguishing pirates from anyone else. Such considerations have no doubt also dampened the international naval effort. In recent years international lawyers and NGOs have increasingly scrutinized tactical military decisions for proportionality and other indicia of legality.57 In wars against non-uniformed combatants and terrorist groups, national forces have been accused of violating humanitarian law when they did not successfully distinguish between combatants and civilians in an environment where the former freely commingle with the latter.58 In this environment, attempting to enforce international criminal law creates the danger of violating or being accused of violating international humanitarian law.

          •  Anyone on a pirate ship is a pirate. (2+ / 0-)
            Recommended by:
            joe from Lowell, DeadHead

            Doubt it is so easy to distinguish a terrorist and a non-terrorist without some process. That is why police work-namely, evidence-is so essential in the terrorism context.

            "To recognize error, to cut losses, to alter course, is the most repugnant option in government." Historian Barbara Tuchman

            by Publius2008 on Sun Feb 17, 2013 at 09:12:38 AM PST

            [ Parent ]

        •  there was a lot of talk of pirates (0+ / 0-)

          in the last decade, since its a rubric that seems to fit (terrorists, like pirates, are enemies of national sovereignty itself) and also provides for pretty rough justice.  you can take no quarter with pirates, historically.

          at any rate, there should be a good sized body of literature out there on the subject.

      •  I think it's important to reject (10+ / 0-)

        the notion, promoted mostly by neocons and their enablers to justify their policies, including the violation of the constitution if need be (and even if not, at least for the putative reasons given), that the national security threats we face are historically unprecedented, in terms of their nature and potential severity, and that consequently, existing and previous modes of response and the legal frameworks used to justify them no longer apply.

        While I'll allow that the potential damage that a terrorist group with a nuke could cause is clearly far more serious than any such groups could have caused in the passed, thus calling for a different response framework, I'm guessing that from a legal standpoint, they're quite similar, perhaps even identical, in that they all involve attacks on US persons and possessions, in and outside US territory, by non-state outlaw groups.

        Btw, I'm fairly certain that Jefferson violated the constitution (not to mention his own strict constructionist view of it) in ordering military action against the Barbary pirates without congressional approval. Not sure about TR & Villa.

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

        by kovie on Sun Feb 17, 2013 at 08:32:46 AM PST

        [ Parent ]

        •  "Terrorist group with a nuke" is as likely (4+ / 0-)
          Recommended by:
          shaharazade, blueoasis, majyqman, MPociask

          as an attack by Martians.

          income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

          by JesseCW on Sun Feb 17, 2013 at 09:49:40 AM PST

          [ Parent ]

          •  I disagree (2+ / 0-)
            Recommended by:
            sandbox, Militarytracy

            Today, perhaps, but it's not inconceivable someday. It's too easy to build a bomb and there's a lot of missing or hard to protect fissile material out there.

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

            by kovie on Sun Feb 17, 2013 at 10:08:27 AM PST

            [ Parent ]

            •  It's extremely hard to build a bomb. It takes (4+ / 0-)

              nation states hundreds of millions of dollars and usually a couple decades.

              It is conceptually pretty simple.  The logistics and engineering challenges are not at all simple (or cheap).

              Let me be a bit more clear - Non-State terrorist with a nuke is a ridiculous boogey.  Now, stinking terror states with nukes are just a fact of life.

              income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

              by JesseCW on Sun Feb 17, 2013 at 10:13:22 AM PST

              [ Parent ]

              •  To be clear (1+ / 0-)
                Recommended by:
                sandbox

                I mean an atomic, not thermonuclear bomb. I agree that a non-state terrorist is unlikely to have the technical and financial means to acquire and put together the materials to make an atomic bomb, but there is the possibility that they could otherwise acquire one from certain states that have such bombs or capabilities. It's certainly not a zero threat.

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

                by kovie on Sun Feb 17, 2013 at 10:20:04 AM PST

                [ Parent ]

                •  Absolutely, it's a real threat. North Korea (1+ / 0-)
                  Recommended by:
                  Militarytracy

                  is broke. They may sell nuke to terrorist group.

                  •  We still have no strong evidence that North (1+ / 0-)
                    Recommended by:
                    MPociask

                    Korea has actually managed to miniaturize a nuclear weapon.

                    That is, to make one smaller than several thousand pounds.

                    Even once they do, it won't be all that hard to trace it back to them if they make it available to a non state actor.  

                    While the North Korean regime is brutal and inhumane, it has yet to be run by anyone bent on suicide.

                    income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

                    by JesseCW on Sun Feb 17, 2013 at 11:11:53 AM PST

                    [ Parent ]

                    •  Weighing several thousand pounds ... (0+ / 0-)

                      ... is not a serious limiting factor.  McVeigh's truck contents weighed two and a half tons.

                      You are right, though, that it would likely be easy to trace it back to the source.

                      The wisdom of my forebears ... Two wise people will never agree. Man begins in dust and ends in dust — meanwhile it's good to drink some vodka. A man studies until he's seventy and dies a fool. Some of my best friends are Catholics, really.

                      by Not A Bot on Sun Feb 17, 2013 at 11:42:43 AM PST

                      [ Parent ]

                      •  That started in the U.S. (2+ / 0-)
                        Recommended by:
                        JesseCW, MPociask

                        Do you imagine he could have gotten it past border security?

                        •  Any drug cartel in Central America ... (0+ / 0-)

                          ... could provide simple directions for transporting a couple of tons over the border.    

                          The wisdom of my forebears ... Two wise people will never agree. Man begins in dust and ends in dust — meanwhile it's good to drink some vodka. A man studies until he's seventy and dies a fool. Some of my best friends are Catholics, really.

                          by Not A Bot on Mon Feb 18, 2013 at 05:45:12 PM PST

                          [ Parent ]

                      •  Of course it's a limiting factor. It makes it (1+ / 0-)
                        Recommended by:
                        MPociask

                        impossible to launch with the missiles NK has, and it makes it very hard to get into an obtainable aircraft, and it means that sheer mass of the shielding is going to show up like a beacon if anyone tries to drive it through a weigh station.

                        income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

                        by JesseCW on Sun Feb 17, 2013 at 05:10:00 PM PST

                        [ Parent ]

                  •  OOOOooooh, scary North Korea, that learned how (1+ / 0-)
                    Recommended by:
                    MPociask

                    to make nukes from a Pakistani "hero of science," A. Q. Khan, is "BROKE." Because of sanctions, or something? And so there are Really Rich Terrorist Organizations just bidding on the purchase of one of the bombs the N.Kors have stacked up by the hundreds? Given the numbers, I'd say it's more likely that one of the 400-odd, small and sophisticated nukular weapons the Israelis are sitting on, since it is not unknown for some of their number to, as they say, "treat with the enemy," people like Yasser Arafat, and of course that other apartheid regime, the old South Africa with actual evidence of nuke proliferation cooperation.

                    Don't forget to look in the closet and under the bed...

                    "Is that all there is?" Peggy Lee.

                    by jm214 on Sun Feb 17, 2013 at 11:50:41 AM PST

                    [ Parent ]

                  •  One doesn't simply walk into Mordor... (0+ / 0-)

                    And the dark lord isn't apt to give away the One Ring.

                    Or something.

                •  It's as close as it gets. It's a Bond plot, not (1+ / 0-)
                  Recommended by:
                  MPociask

                  credible threat.

                  Dirty bombs, chemical weapons, even biological weapons are much more serious dangers when it comes to non-state actors.

                  income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

                  by JesseCW on Sun Feb 17, 2013 at 11:10:01 AM PST

                  [ Parent ]

                •  And it's not a "zero threat" that Hellfires will (2+ / 0-)
                  Recommended by:
                  out of left field, MPociask

                  kill people, humans, who have nothing to do with what we call "terrorism," against their own neighbors or against what are so embracingly and undefinedly called "US national interests."

                  And it's not a "zero threat" that plain old commercial activities in the biosciences will produce, in addition to the GMO oopsies on the ground and on the horizon, and all the hormone-like stuff in our food and water, etc., the ready ability of a Unabomber type to cobble up a virus that's one Hell of a weapon of mass death. Already, scientists have built a functioning influenza virus that's identical to the world-plague infection of 1918-9, just because they can. And do any of us really believe that the Secret Squirrel parts of our government have not been using our tax dollars to create, under the rubric of "making vaccines' and "studying possible threats and defenses," equally nasty stuff? The precedents are clear.

                  You never get "zero threat." There's Tim McVeighs out there, all over the place, with chips on their shoulders, axes to grind, all that, and you can still buy fertilizer and diesel fuel and high-velocity explosives. The question of how to respond requires facts about the moving target of 'threatdom,' stuff that 'the government" monopolizes and just tells us we have to be very afraid, all the time, of everything, and pay no attention to the fact that perceptive citizens and active gum-shoe police work and yes, dumb luck, have kept the psycopaths from carrying through a whole lot of "threatplots," way more than destroying the international legal system, such as it is, in order to save it, ever have.

                  This is all bogus: it's just a distraction, to keep us happy that "someone" is "protecting us" by sowing dragons' teeth all over the planet and demolishing a bunch of the few protections we have against arbitrary, Star Chamber, Inquisition-style applications of fatal force. First to "gooks" and "wogs," then to "traitors," and gee, what's the next category us sleepwalking heirs to Enlightenment enlightenment will sign on to?

                  Betting on the future value of corn and pork bellies used to be a felony. So did usury. So did the self-dealing of banking outfits like Goldman Sachs. Now all that stuff is "legal," or even more obscurely, "not illegal." "Legality" is just mist and smoke.

                  There's your future, folks. Hope you feel safe there, and I know you won't, because we are so inventive at conjuring up "non-zero threats," and yielding up our "rights" so happily to ensure that our "rights" and all warm and safe and protected.

                  Bullshit.

                  "Is that all there is?" Peggy Lee.

                  by jm214 on Sun Feb 17, 2013 at 11:44:58 AM PST

                  [ Parent ]

        •  Did Jefferson (2+ / 0-)
          Recommended by:
          Shahryar, MPociask

          declare an endless state of global war against pirates and implement a preemptive/pre-crime doctrine wherein the US declared the world a battlefield and anyone anywhere who harbored or 'plotted' against the US was guilty of a per-crime? Sending the marines to Tripoli may have been unconstitutional but it did not become enshrined as a law that created a national security state with the power to kill, torture, invade, occupy non-state outlaws. Seems to me that the imminent threat to our security is not non-state outlaws. There have always been threats to our national security out there in the big scary world.

          I would ask what is our national interest is it multinational entities hell bent on hegemony and global neocon dominance? What is terrorism or a terrorist? Where the Nicaraguan Sandinistas terrorist's? Where those who lived in Iran under the CIA's Savak terrorist's  What right do we as a nation state have to expect countries and regions where via our  'foriegn policy' install, support horrific brutal anti-democratic terrorist regimes.

          Secret police states like ours has become with agency's like NSA, CIA and  der Homeland Security have no business defining who is a national threat or a terrorist. We are the biggest outlaw globally as use our military power our 'super power', to enforce a global NWO that economically and militarily is a imminent threat to humans and the planet.

          It also seems to me that imminent threats do not mean threats to American people's security but to the inevitable  'oligarchical collectivist's' who have no other agenda then global power and profit.  The owners of the place and their enforcers our military and our security agencies, are nothing but criminals be they BP/Shell, Halliburton, Goldman Sachs or the  Spooks.                              

          'Terrist's are gonna kill yer family' said Bush. Really? I think it's much more likely that my own government, poverty, global warming or forced corporate slave labor or our own twisted justice system will kill yer family then a pirate in Somalia or any non state outlaws. What these so called rogue states do do is interfere with global commerce.

          The viscous anti-human anti-democratic free global market that means us all harm where ever we live. Enemy's of the state at this point is anyone anywhere who resists the NWO including American's who no longer have civil or human rights to protect them from the real terrorists here. Misplaced fear imo is more of a threat in a world where the only power and law is in the hands of the would be rulers of the world as we find it.

           

            •  How? (1+ / 0-)
              Recommended by:
              MPociask

              not being cheeky here just wondering how? Did he declare an endless war with a amorphous ever present enemy who was guilty of someday committing a crime against the state? Did he take away our 'inalienable' civil and human rights and declare the Great Writ nul and void globally because of imminent threats that the secret security state apparatus declared needed to be killed to keep us safe?

              I'm not a lawyer nor am I so naive to think that holding hands and singing kumbaya is going to stop the this current global madness. I sure know a police state, global criminal military aggressor and lawlessness in the universal sense when I see it. Lawyers with guns like bible thumping fundamentalists, can interpret the Bill of Rghts and the constitution any way they want. Somewhere beneath the twisty definitions and reinterpretations lays the real laws.

              The self evident laws that humans over centuries have devised to protect themselves from those who seek unchecked   global power and call their aggressive wars and crimes against humanity a matter of Homeland security or 'national interest'. We do not even have our national security or interest as an excuse here as terrorism is created by our global and domestic agenda and policy.            

              •  The exploitation of a specific hostility or threat (2+ / 0-)
                Recommended by:
                nickrud, oysterface

                whether real or not, to enable and justify vastly broader powers to wage war against any and all entities deemed as enemies or threats to US interests, hardly began under Bush, or even Nixon or Eisenhower. And although I'm not an expert in this particular area of history, it's not as if this is a mostly let alone entirely post-WWII phenomenon.

                E.g.

                Mexican War
                Indian Wars
                Spanish-American War
                Latin-American "Gunboat" Wars

                We've always been doing this, under the auspices of self-defense. It's just become vastly bigger and unending since 9/11, and we're noticing it more.

                Well, some of us, at least. Others have better things to do, like play video games and watch reality shows. (Or, of course, work 3 jobs to pay the bills.)

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

                by kovie on Sun Feb 17, 2013 at 12:32:47 PM PST

                [ Parent ]

                •  true dat (0+ / 0-)

                  but the dismantling reinterpreting of our and the worlds universal laws and civil and human rights and our current domestic police security state with out and checks or an end imo is not just worse but has taken our nation to the dark side here as well as globally. The cold war another bogus global geopolitical war had the Soviet Union as a counter 'super power' an enemy that posed mutual destruction and fought it's wars in proxy geopolitical wars like Viet Nam. Detante (sp?) became the NWO where we were checked in a way by another power.  We have no checks anymore and if we the people resist, organize, demonstrate or even exercise free speech, we too can be declared an enemy of the state.

                  What makes this different to me is that the enemy can and is anyone anywhere who resists our power, be they Americans, Wikileaks, insurgents in lands we occupy and exploit. The GWOT also has no end by design as it creates the perfect enemy one which will produce endless Goldstein's or number 1, 2, 3, leaders of Al Queda or whatever the spook declare to be the next reincarnation of a Al Queda.

                  Their is also the fact that our national interest is not served by the multinational entities who's interests our government represents either economically or on a security level. In the past our laws our rights civil and human and our government did offer checks on unlimited power. Now we have none and we don't no parliamentary means to address our grievances or even basic civil rights like due process or habeas corpus.

                  Those wars ended this one looks to be a turn to the dark that can not be stopped by law or people as they too can be called terrorists. What we have throughout our bloody history done in the name of security in no way mitigates the present slide into codifying and legalizing this global aggression that while not new is unprecedented,  indefensible and not even for our national interests let alone security. Would be rulers of the world always justify their lawless NWO with claims of national security or interest.                        

            •  good solid legal argument there! (1+ / 0-)
              Recommended by:
              Sven Boogie

              "He kind of did, your honor"

        •  Tripoli declared war on the United States. (1+ / 0-)
          Recommended by:
          MPociask
          Although Congress never voted on a formal declaration of war [against Tripoli], they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify." -- Wikipedia, First Barbary War
          Wikipedia is our friend. Perhaps you should consult it before commenting. Jefferson turned the matter to Congress because he thought he did not have the Constitution did not authorize him to take unilateral action. Congress authorized action. Your "fairly certain" is "fairly wrong".

          A waist is a terrible thing to mind.

          by edg on Sun Feb 17, 2013 at 11:32:18 AM PST

          [ Parent ]

          •  Surety can be a dangerous thing (2+ / 0-)
            Recommended by:
            offgrid, oysterface

            First, Jefferson sent a small fleet to the region with instructions to enforce existing treaties, which obviously implied the use of military force, prior to these authorizations. And second, were such authorizations to use military force, absent a formal declaration of war, even constitutional, at least as viewed at the time, with little case law to guide officials?

            A law passed by congress and signed and implemented by the president doesn't necessarily make it constitutional.

            E.g. FISA, the AUMF and Patriot Acts, all arguably unconstitutional.

            Or DOMA for that matter.

            Or, it turns out, McCain-Feingold.

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

            by kovie on Sun Feb 17, 2013 at 12:19:07 PM PST

            [ Parent ]

    •  What was the "justification" for Internment Camps? (7+ / 0-)

      or Slavery, for that matter.  

      What has been proven for 200 years now, is that American government's will ignore the spirit of the US Constitution, if not explicit laws, when it suits them, AND when it is ignored, or winked at, by the Courts, and the people.

      It's bizarre that this "discussion" is continuing on dkos.  

      We HAVE a "framework" for crime.  It's called the American Justice system.  The laws are on the books.  Murder is still murder.  Kidnapping is still kidnapping.  Torture and assault are just that.  Crimes.

      To his temporary credit, Eric Holder seemed about to end what is effectively Martial Law, close Guantanamo, and get this stuff back where it belongs, in a Federally legal court system.  

      But he was overruled by Obama, after fearing the "politics" were toxic for his re-election.

      So we continued pretending the perpetrators of these crimes are committing acts of "War."   This is the insane premise for the whole disgraceful abortion of the American justice system, and International Law, that the "War on Terror" has foisted on us.

      The Dick Cheney's of the world had been waiting for years for an excuse to get rid of the rights of "certain" people, and were presented with the perfect opportunity to effectively bypass the US Constitution, and the Federal Justice system for people they consider the "bad guys."

      It is a system that has always been "inconvenient" for racists and vigilantes, and the simpleminded who believe that "rights" for people accused of crimes are somehow "bad" unless they are helping them personally.  

      In fact, the rights EVERY person accused of a crime enjoys in America, are the very basis of our democracy, our rule of Law, and our existence as a Civilized society.    

      Making the bogus War on Terror somehow "legit," as Team Obama (and apparently some here on Dkos) now seem determined to do, only further erodes the US Constitution, and if the loss of those basic Civil Rights somehow becomes "permanent," it ends the experiment in democracy formerly known as America.

      •  There is no basis or precedent (1+ / 0-)
        Recommended by:
        DeadHead

        for citizens to independently declare what is and isn't constitutional or legal in any formal and binding sense, even if they make a very solid case for it. Thus, as unconstitutional as we believe it was and almost certainly actually was, Bush v. Gore is, de jure, constitutional, as were Citizens United, Korematsu, Scott and Plessy, all rulings that most people here oppose on constitutional grounds. We don't get to decide what is and isn't constitutional. SCOTUS does.

        Or, like a minority I've come across, do you reject Marbury v. Madison too?

        In which case this discussion is over.

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

        by kovie on Sun Feb 17, 2013 at 12:23:45 PM PST

        [ Parent ]

      •  Well said. (0+ / 0-)

        Many hands make light work, but light hearts make heavy work the lightest of all.

        by SpamNunn on Sun Feb 17, 2013 at 03:40:39 PM PST

        [ Parent ]

    •  Jefferson's Legal Framework (0+ / 0-)

      Look up the Treaty of Tripoli of 1797.

  •  This is very cogent and well-argued. (8+ / 0-)

    I've read it carefully and if I didn't have to head out I'd say something more substantive, but I do, so all I can say is that this makes a lot of sense and I wish you had a seat at the table in the executive branch while they were developing this policy.

  •  problem number one (11+ / 0-)

    you seem to buy into the assertion that terrorism is some sort of major problem in the US, math and facts tell a different story.  Icy steps hurt, destroy and kill more people each year in the US then terrorist, should we toss out all our civil liberties to combat icy steps?  How about slippery bathtubs?  why arent we made to fear the slippery bathtub, its much more a danger than some foreign terrorist, yet....

    Stop buying into the fear, that is step 1.

    Exclusive Family Friendly PC Games to Give, Play and Share for Free. ProjectReindeerGames.org

    by MrBigDaddy on Sun Feb 17, 2013 at 08:29:26 AM PST

    •  Are you comparing (12+ / 0-)

      Oklahoma City bombing, 9/11, abortion clinic bombings, etc. with slip and falls?  Do you also argue there should be no concern about regulating weapons because more people die of natural causes?

      Civil liberties arguments are more subtle and should be of grave concern.  But you can't convince me that the potential for a terrorist attack is inconsequential.

      " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

      by gchaucer2 on Sun Feb 17, 2013 at 08:35:33 AM PST

      [ Parent ]

      •  I'm not telling you, (8+ / 0-)

        Math is.  Terrorism is way way way way down on the list of things you need to fear when considering your daily safety.

        Slip and falls FYI are not "natural causes".

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        by MrBigDaddy on Sun Feb 17, 2013 at 08:37:32 AM PST

        [ Parent ]

        •  Tell that to the 3000 people murdered (2+ / 0-)
          Recommended by:
          joe from Lowell, KayCeSF

          in the 911 terrorist attacks.

          •  and living in fear (10+ / 0-)

            and shredding our civil liberties and freedoms honors them how?

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            by MrBigDaddy on Sun Feb 17, 2013 at 08:45:47 AM PST

            [ Parent ]

          •  Meanwhile (6+ / 0-)

            300,000 people since then have died in car accidents. 9/11 was a horrible tragedy, but get a grip people.

            (-5.50,-6.67): Left Libertarian
            Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

            by Sparhawk on Sun Feb 17, 2013 at 09:21:30 AM PST

            [ Parent ]

            •  Hmmm, (2+ / 0-)
              Recommended by:
              sandbox, KayCeSF

              math seems to be an issue.  I'm assuming you have data re: 300k people dying in the U.S. in the last 11 plus years.  I'll just do the math for 10 years.  That boils down to 82 people in one day across the entire U.S. as opposed to 3,000 in one day in small acreage in 3 places on the East Coast.  What is your point exactly?

              I don't see how people here don't have a grip.  Other than the math people that is.

              " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

              by gchaucer2 on Sun Feb 17, 2013 at 09:56:55 AM PST

              [ Parent ]

              •  What's yours? (4+ / 0-)
                Recommended by:
                3goldens, chuckvw, blueoasis, MPociask

                Sometimes things just happen and are a 'cost of doing business'.

                Should we be trying to disrupt plots like 9/11? Absolutely. Am I willing to give up my civil liberties, or those of people across the globe for it? Absolutely not.

                Another 9/11 was averted the instant they reinforced cockpit doors and made some other similar common-sense security arrangements, not to mention that passengers aren't going to stand for it this time around.

                (-5.50,-6.67): Left Libertarian
                Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                by Sparhawk on Sun Feb 17, 2013 at 10:07:24 AM PST

                [ Parent ]

              •  Because one would assume it matters where >$1T (1+ / 0-)
                Recommended by:
                gharlane

                in treasure, plus all the blood, is put relative to the effectiveness in saving lives.

                If, on 9/10, I told you you could spent $1T to save 3000 lives...

                ...or prevent all ladder related deaths in the U.S. for the next 10 years.

                Which would you pick?

                Stop 9/11, right?

                Why were those 3000 people worth more than the >4000 people who have died due to ladders, since?

                Or worth more than the 2 million people who could be saved for 1/50th that cost.

                Now, unlike clean water, one can only imagine it's impossible to stop all ladder related accidents no matter how much one spends...

                ...also true of terrorism... but we aren't required to kick an own goal by losing TWO AND A HALF 9/11's IN YOUNG LIVES trying to prevent the next one. Not, of course, including the >100,000 non U.S. lives taken, because they're brown and don't count, right?

                Oh, and even if you don't care about the savagely -EV in money and lives... there's no need to throw the constitution on the trash with the everything else..

          •  I think (4+ / 0-)
            Recommended by:
            BigAlinWashSt, blueoasis, nio, MPociask

            we have 'avenged' or taken revenge for the 3000 people who were killed on 9/11 literally untold times. We've murdered enough people in the name of 'keeping us safe'. Wouldn't tit for tat murder mean we should have invaded, occupied  and drone bombed Saudi Arabia or Egypt? btw many of the families of the victims do not agree with using their loved ones as an excuse for the policy and agenda that simply creates more terror and has destroyed our own civil and human rights as well as enabled our aggressive neocon preemptive militarism to dismantle international law and universal human rights. If you fear terrorists this much why are you are advocating policy and an agenda that simply creates more terror and murder.      

            •  With due respect, I think you are confused (1+ / 0-)
              Recommended by:
              Militarytracy

              about the difference between killing and murder.  If you kill someone who is about to murder you or your family, that is not murder--it is killing.  When Al Queda crashes planes into office buildings for the purpose of killing civilians, that's murder.  I understand there are grey areas.

              The idea of the drone program is to kill (not murder) radical islamic terrorists who are planning and executing terrorist attacks against the US.  It is done partly as a substitute to our sending US troops into these areas to carry out the same mission.  Sometimes civilians are killed in the process.  The program is justified.  

              •  I do think its day has gone (2+ / 0-)
                Recommended by:
                sandbox, oysterface

                Al Qaeda has been ferociously beaten to a pulp.  All war is ugly, all hunting of terrorists is ugly, but I do think that Armando is correct in that just because it is legal the ethics of the program are no longer justified.

                To do nothing is not an option either, even though many here want that to not be so.  Terrorists breed terror more than death, that is their goal and always has been, and terrorism cannot simply not be addressed.

              •  Sorry, depraved indifference murder == murder (2+ / 0-)
                Recommended by:
                MPociask, shaharazade

                So the civilians at the wedding party?

                Murdered.

      •  not arguing about weapons (1+ / 0-)
        Recommended by:
        3goldens

        becomes MATH tells us that weapons are actually a LEADING cause of death among demographic groups.  Such as black youth.

        Exclusive Family Friendly PC Games to Give, Play and Share for Free. ProjectReindeerGames.org

        by MrBigDaddy on Sun Feb 17, 2013 at 08:39:08 AM PST

        [ Parent ]

        •  What does your math (2+ / 0-)
          Recommended by:
          annieli, KayCeSF

          tell you about the number of slip and fall deaths in Manhattan in one day as compared to a terrorist attack in Manhattan in one day?

          " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

          by gchaucer2 on Sun Feb 17, 2013 at 09:00:18 AM PST

          [ Parent ]

          •  Only one day counts? If you want to prevent (5+ / 0-)
            Recommended by:
            3goldens, chuckvw, blueoasis, nio, MPociask

            another, stop doing what caused the first.

            Get our fucking troops out of countries where the People do not want them.

            income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

            by JesseCW on Sun Feb 17, 2013 at 09:55:43 AM PST

            [ Parent ]

            •  That is not the sole driver (1+ / 0-)
              Recommended by:
              sandbox

              of terrorism, and to make that your argument is intellectually dishonest.  I know what the U.S. is accused of doing by Osama bin Laden that meant that our people deserved a terrorist attack, what about all of the other nations that Al Qaeda attacked too?

              To pretend that terrorist leaders want nothing more than power and fame in the end is to ignore simple truth. Osama bin Laden was in love with himself like many sick evil leaders that have inspired horror.    We all want to think if we would have just worn a different dress they wouldn't have done that to us.  It means that we could have had some control over what happened, and attackers will point to the dress but the dress was never really the problem.

    •  We can't deal with more than one problem (4+ / 0-)

      at a time? News to me.

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

      by kovie on Sun Feb 17, 2013 at 08:51:23 AM PST

      [ Parent ]

    •  "OK, you've covered your ass." (1+ / 0-)
      Recommended by:
      Militarytracy

      Your response to the national security professionals who tell us that terrorism is a significant threat is just like George Bush's before 9/11.

      Art is the handmaid of human good.

      by joe from Lowell on Sun Feb 17, 2013 at 09:35:17 AM PST

      [ Parent ]

      •  American based corporations can butcher us (1+ / 0-)
        Recommended by:
        3goldens

        year after year without causing this kind of reaction.

        Seems odd.

        income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

        by JesseCW on Sun Feb 17, 2013 at 09:56:39 AM PST

        [ Parent ]

        •  So, therefore, let's ignore terrorism. (3+ / 0-)
          Recommended by:
          sandbox, KayCeSF, SoCalSal

          When a conservative responds to a story about, say, mass shootings by changing the subject to gang shootings, what do you think of that?

          Art is the handmaid of human good.

          by joe from Lowell on Sun Feb 17, 2013 at 09:59:12 AM PST

          [ Parent ]

          •  Ignore terrorism? Perhaps not. (2+ / 0-)
            Recommended by:
            gharlane, MPociask

            Spend >$1T and >4500 lives in the hope to save the next 3000 lives (taking >100,000 of the ones that don't count in the process, obviously) in one case and not the other... WHY?

            •  Nobody's defending the Iraq War. (0+ / 0-)

              This is a story about the drone program, which certainly hasn't cost anything close to $1 trillion, or 4500 American lives, or a couple hundred thousand total lives.

              Narrowly targeting al Qaeda is quite a bit different from conquering and occupying a large country with no discernible relationship to al Qaeda.

              Art is the handmaid of human good.

              by joe from Lowell on Tue Feb 19, 2013 at 07:15:04 AM PST

              [ Parent ]

              •  Or the Afghanistan war? Though I don't know what % (0+ / 0-)

                of the treasure went into that one. The blood was still 2000 young lives...

                The story might be about the drone program... but this thread is about buying into the fear that calls for its existence, let alone allows it... when a plethora of every day things are much more deadly. Incidentally, once that fear has been bought into, one can't just get to say "well, the only cost will be the drone program"... because we have evidence that that is not all that that fear will spawn.

                And if terrorism is placed where it belongs on the day to day things to be afraid of/spend energies preventing... when one is then asked "are you asking us to accept this thumbing the nose at IL, due process, and Art3Sec3... the expanded power of the UE and the shredding of civil liberties... for something likely to cost a person their lfie than falling off a ladder?" Well, then, how abhorrent that position is, and how out in the cold its defenders are might just register on their faces before the cognitive dissonance kicks in.

          •  Strawman alert. (2+ / 0-)
            Recommended by:
            MPociask, BradyB

            Nobody's talking about "ignoring terrorism."  The question is whether it's worth the blood and treasure AND significant deterioration of civil liberties in order to combat a particular perceived threat, about whether the cure is worse than the disease.

            Once again Franklin's warning about those who give up essential liberties to purchase temporary security comes to mind.

            •  Pedant alert. (0+ / 0-)

              Lots of people are talking about ignoring terrorism.

              If we're going to talk about what eroding al Qaeda is worth, we need to take a reality-based measure of the degree of threat, not change the subject whenever it comes up.

              Art is the handmaid of human good.

              by joe from Lowell on Tue Feb 19, 2013 at 07:16:45 AM PST

              [ Parent ]

              •  It's still straw, (0+ / 0-)

                but the "man" part is less, well, "man"-like because your pretenses of argument are falling away.  Pretty much all we're left with is a pile of straw.

                Nobody's changing the subject.  Nobody's ignoring terrorism, your baseless complaints notwithstanding.  All people are doing is questioning the costs and the efficacy of the chosen methods of fighting terrorism when viewed against the perceived or actual risks of terrorist attacks.  The fact that you don't enjoy the points those people are raising doesn't mean the people are changing the subject or ignoring terrorism.  Sorry.  Thanks for playing.

                "A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home." - James Madison

                by gharlane on Tue Feb 19, 2013 at 02:25:40 PM PST

                [ Parent ]

  •  I disagree with Marcy Wheeler's argument. (12+ / 0-)
    Ultimately — as I showed yesterday — the Administration has not been in the business of killing people for crimes they have committed, but for crimes they might commit in the future. And if Congress is going to try to make that legal for CIA especially without modifying the Constitution (heh), they would need to write some really extensive guidelines about what counts as a pre-crime (otherwise known, in the Administration’s language, an imminent threat). Indeed, that would be necessary before any court got stuck with this job.
    But no one is talking about doing that work.

    Which is really why this court is being considered as an option right now. Because no one wants to talk about what it means to kill in the name of pre-crime, and no one wants to make the difficult decisions about when killing in the name of pre-crime would be sound and when it wouldn’t be.

    I think her argument, while compelling, is flawed. Assuming that there exists evidence of conspiracy against the U.S. government, such conspiracy is in fact a crime, not a pre-crime as she claims.
    •  It fits the legal definition of a crime (4+ / 0-)
      Recommended by:
      Armando, JesseCW, 3goldens, oysterface

      for someone to be plotting and planning an attack against the US in a suburb of Islamabad? Under what legal system? The US's, Pakistan's or international law? I'm not saying that such a thing shouldn't be dealt with. It should, of course. But I'm struggling to figure out what legal framework to put this under.

      My guess is that Pakistan's law has first say on this, but given that it's unlikely that we'd be able to successfully prosecute such plotters let alone prevent them from carrying out their plans under its legal system in today's political climate, I'd say that international law would be the most logical recourse. But even then, what laws make their planning and plotting a crime?

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

      by kovie on Sun Feb 17, 2013 at 08:57:48 AM PST

      [ Parent ]

      •  You should read the LaBorde paper (5+ / 0-)

        I discuss in the post.

        Especially the "prevention of crime" parts and the discussion of th 2005 UNSC Resolution.

        •  Thanks, I've read your excerpts (4+ / 0-)
          Recommended by:
          JesseCW, Kombema, DeadHead, oysterface

          and will try to read the whole paper if I have the time. Obviously, a complex matter with no obvious, simple or easy solution.

          One thing that also comes to mind is that, were we to put this all under a legal and not military umbrella, and be able to convince the countries of the world to sign onto that, our actions in dealing with actual or potential terrorism could from then on be held criminally liable, including going to war. And no congress or president is likely to agree to that, for the same reasons they won't sign onto war crimes treaties.

          As the world's remaining superpower, we like to reserve for ourselves the freedom to do things that we don't believe other states let alone non-state actors should be able to do. Because legally speaking, what's the difference between our killing an alleged terrorist via drone in Yemen and Yemeni terrorists bombing a government building in DC, since both are seen by their perpetrators as acts of self-defense?

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

          by kovie on Sun Feb 17, 2013 at 09:36:35 AM PST

          [ Parent ]

          •  I don't see the risk (2+ / 0-)
            Recommended by:
            DeadHead, vcmvo2

            that you see in terms of international law.

            The resistance to war crime treaties is more of a GOP paranoia about international institutions rather than substantive objections to the idea of an international war crime regime. Frankly, it really exists already.

            •  I personally don't see the risks (5+ / 0-)

              and actually see much potential upside, in holding us to the same standards that we like to hold others to. But I don't agree that this is exclusively a GOP paranoia thing. I think it's a fear shared by members of both parties, that is in fact a legitimate fear, in the sense that the US clearly has committed war and other international crimes, that members of both parties want to shield us from. Were we to sign these treaties, both Cheney and Obama might end up on trial, or at least subject to quite legitimate criminal investigations.

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

              by kovie on Sun Feb 17, 2013 at 10:06:43 AM PST

              [ Parent ]

            •  And the United States actively subverts it, and (2+ / 0-)
              Recommended by:
              chuckvw, DeadHead

              similar efforts at the national level in other countries actively trying to uphold conventions like Geneva and the Convention Against Torture -- by threatening their political leaders. As you know, potential war crimes cases against Bush era perps, investigated in countries such as Spain and the UK have been aggressively, bullying-ly, squelched by U.S. (Obama administration) diplomatic efforts.

              So it's not just the neo-cons screaming about international institutional interference in U.S. ability to do whatever the hell it wants, it's a Blue Dog thing, too.

              That said, I appreciate that you are interested in raising the bar far higher than it is now. These things need to be exceptionally rare, and reliant on far more than some rubber stamp FISA-like court or Congress, in terms of maintaining due process.

              After all, the majority of people murdered in custody by the U.S. in prisons overseas were shown to be innocent of terrorism charges. I do not trust the government to independently make decisions about guilt or innocence, especially of American citizens -- let alone to take it upon themselves to assassinate them without trial, without far more rigorous, standards.

              "Government by organized money is just as dangerous as Government by organized mob." -- Franklin D. Roosevelt

              by Kombema on Sun Feb 17, 2013 at 10:31:54 AM PST

              [ Parent ]

      •  What about plotting to violate the sovereignty of (1+ / 0-)
        Recommended by:
        MPociask

        Pakistan by invading a small border city and killing a foreign national without telling the Pakastani government?  Is that a crime?

        Many hands make light work, but light hearts make heavy work the lightest of all.

        by SpamNunn on Sun Feb 17, 2013 at 03:43:22 PM PST

        [ Parent ]

        •  How about plotting... (0+ / 0-)

          To overthrow the sovereign government of Iraq, on a pretextual basis, when Iraq has done nothing to harm your country?  What happens if you carry out that plot, kill tens (hundreds?) of thousands of Iraqis, and displace millions more, destroying the country's capacity to deliver electricity and clean water in the process?  Unleashing a viscous sectarian war?  What if the only point is to put fear into other, non-Iraqi's - so you can fight people you don't like over there, instead of over here?

          War crime?  Terrorism?  

    •  If there is evidence of a conspiracy (7+ / 0-)

      in terms of actions that have been taken, then it is no longer a pre-crime, assuming, of course, that said actions were not instigated by a government agent.

      But if the evidence of a conspiracy is solely because of what people are saying or writing, then it is a pre-crime, unless you want to say that there is such a thing as a thought crime.

  •  What? Policy framework? (7+ / 0-)

    Dude, our policy framework is, "yeee-haw!"

    Early to rise and early to bed Makes a man healthy, wealthy, and dead. --Not Benjamin Franklin

    by Boundegar on Sun Feb 17, 2013 at 08:36:11 AM PST

  •  Good work! (10+ / 0-)

    Terrorism should never have been treated as something outside criminal enforcement.

    believe that a durable legal and foreign policy framework should take the following approach: (1) the default position is that the threat of terrorism be addressed through  a criminal law enforcement approach, compliant with international law and United States law;  (2) if the president believes that there are situations where a criminal law enforcement approach is not adequate, he must inform the Congress of the specific situations where he wishes to depart from the criminal law enforcement approach and invoke his Commander in Chief powers; (3) for persons or organization targetted outside of the criminal law enforcement approach, the president should be required to make a showing to a neutral arbiter, with advocacy against the president's position presented by persons provided the requisite information and opportunity to be heard; and (4) if the president is given the authority to act as Commander in Chief, he must comply fully with international laws of war.
    imo what I blockquoted from your diary says it all. It is the way terrorism used to be managed in pre-Bush eras.

    Excellent diary!

    In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

    by vcmvo2 on Sun Feb 17, 2013 at 08:37:08 AM PST

    •  9/11 apparently convinced a lot of people (10+ / 0-)

      that a criminal law approach was inadequate - not just in need of improvement, but fundamentally flawed. But I think many of those people were already looking for a justification for engaging in more aggressive military action.

      "Let's do this!" - Leeroy Jenkins

      by AaronInSanDiego on Sun Feb 17, 2013 at 09:18:00 AM PST

      [ Parent ]

      •  I agree with you (4+ / 0-)
        Recommended by:
        Kombema, 3goldens, chuckvw, princesspat

        I'm from NY and I'll tell you many of us were ( and remain) indignant about how the tragedy of 9/11 became the vehicle for repression and torture.

        And afterwards it became such an emotional issue that it never got adequately addressed.

        In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

        by vcmvo2 on Sun Feb 17, 2013 at 09:28:36 AM PST

        [ Parent ]

      •  People's fear was manipulated to portray our era (6+ / 0-)

        as exceptional. It is not. Graver threats to the republic (secessionist Confederacy, WWII, e.g.) have existed before, and existed at the founding of the country (British re-invasion, anyone?).

        It's crap to claim this time in history is unique. It has its own particular challenges, no question, and the risk of WMD is growing in certain areas. But overall, terrorism is far less of a threat than many other compelling issues, and the criminal justice system has handled the terrorism cases -- like Timothy McVeigh's -- far better than the farcical, embarrassing GITMO military Star Chamber that's going on now.

        "Government by organized money is just as dangerous as Government by organized mob." -- Franklin D. Roosevelt

        by Kombema on Sun Feb 17, 2013 at 10:39:56 AM PST

        [ Parent ]

  •  Again, had to hotlist (13+ / 0-)

    for deep reading of post plus links.  I finished part I finally and am actually looking forward to finishing the entire series prior to attempting to make a cogent comment.

    These issues are too complex for simple responses.  Thanks for the time and effort you have put into these diaries.

    You deserve as well thought out replies -- whether in agreement or not.

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Sun Feb 17, 2013 at 08:38:57 AM PST

  •  Armando, I read thru your diary and I don't think (0+ / 0-)

    I saw the word "Islamic" or "Jihad" anywhere in it to describe the "extemists".  Al Queda and all the related groups you describe are Radical Islamic--in their own words, videos, manifestos, etc.  It is as if we are fighting an enemy we are not allowed to name--because of political correctness.

    For the record, I am in agreement with the Obama drone program and also with the idea of using US troops sparingly in so-called Muslim countries.

  •  Excellent work Armando. (8+ / 0-)
    But this difference does make the process by which the Obama Administration analyzes kill orders in a non-theater of battle setting adequate. What is missing from the process is an advocate for the person who is subject to the potential kill order. Such an advocate, it seems to me, can be provided to the person who may be subject to the kill order. After all, the consequences are much more severe and final.
    This is exactly the concern I have with the administration's current framework. Your recommendations are well reasoned and cogent, and I hope they're considered by the administration and Congress.

    You've put forward a great argument and a fine piece of writing I might add.

    Great work.

  •  Heh. Pre-Crime. (3+ / 0-)
    Recommended by:
    shaharazade, annieli, Sven Boogie

    But I do believe getting at the fundamentals of problems would indeed prevent much imminent terrorism:

    "To recognize error, to cut losses, to alter course, is the most repugnant option in government." Historian Barbara Tuchman

    by Publius2008 on Sun Feb 17, 2013 at 08:48:49 AM PST

  •  illegal (8+ / 0-)

    Drones not in a declared war zone should--must be--illegal.  For instance, Iran sends a drone into DC to kill the president--an act their government--and its judiciary--say is legal.  You really don't want this to proliferate.  
    Somehow, I equate this with Hiroshima, what we did first threatens to be done by others using WWII as proof of its correctness.  Isn't this Israel's fear--isn't this N Korea's justification of nukes?
    Drones are easy to make--to transport--to deploy.  I remember living near an IRA leader in NY--wouldn't Britain have been correct to drone him --and his neighbors put at extreme risk?

    Apres Bush, le deluge.

    by melvynny on Sun Feb 17, 2013 at 09:01:04 AM PST

    •  How about special ops (3+ / 0-)
      Recommended by:
      FG, SoCalSal, oysterface

      in such a zone?

      And do you make a distinction be tween a "law enforcement" operation and a military operation? If so, why?

      •  declared war (6+ / 0-)

        When you're in a declared war, retaliation is justifiable--and an obvious constraint.  When we use drones in Pakistan, we are committing an obvious crime--and the World Court should be involved.  In that context, we get away with it because might makes right--similar to the USSR trampling Hungary in 1956.  Not a standard we should defend.

        Apres Bush, le deluge.

        by melvynny on Sun Feb 17, 2013 at 09:09:42 AM PST

        [ Parent ]

        •  That''s incorrect in my view (8+ / 0-)

          First, the 2001 AUMF is the constitutional equivalent of a declaration of war.

          Second, Pakistan has given permission to the US to use drones in it sovereign territory. See Wikileaks. Also true for Yemen.

          Third, if drones in Pakistan  are "an obvious crime," then so was the operation against Osama bin Laden, no? If not, why not?  

          •  okay (5+ / 0-)

            Their is no " constitutional equivalent" to a declared war--remember the police action in Korea?  You can circumvent the constitution, but that doesn't reach a certain standard necessary until an new amendment is approved.

            Second, Wikileaks might be true--or not--but until a country publicly asks for "help," we are actually invading it.  He said, she said is not a standard anyone should accept.

            We should have constitutionally declared war on Afghanistan when they refused to hand over OBL, we didn't, so invading, and even looking for him there was illegal.  Finding him in Pakistan, we should have asked the Pakistanis to lead the assault on his compound, or to publicly state that we had permission to do their police work in this case.  Inconvenient? yes--but law is often an impediment--but chaos is worse.

            Apres Bush, le deluge.

            by melvynny on Sun Feb 17, 2013 at 09:42:49 AM PST

            [ Parent ]

            •  There is no he said she said (6+ / 0-)

              Neither Pakistan nor Yemen have said that they object to drone strikes in their soverugn territory.

              You demand they "publicly" ask for help. I'm not sure where that comes from. I do not believe there is any legal requirement for that and there are obvious practical reasons why that does not occur.  

              •  Pakistan (3+ / 0-)
                Recommended by:
                JesseCW, chuckvw, MPociask

                The government there criticized our drone attacks--especially when they killed innocent bystanders.  If a country does something with secret permission, it has no cover--no legal basis for that act.  Suppose I ask you to "steal" my wife's engagement ring so I could collect the insurance--and you could make your sweetheart happy--change my mind and have you arrested.  Bingo--sweetheart is ringless and you're in jail.

                Apres Bush, le deluge.

                by melvynny on Sun Feb 17, 2013 at 09:56:44 AM PST

                [ Parent ]

              •  Here is where it really gets dicey (1+ / 0-)
                Recommended by:
                MPociask

                In the case of Yemen, we might have used targeted killing of people because the President of Yemen  (or the Kingdom of Saudi Arabia) made personal entreaties of John Brennan.  Personal favors to rid them of their enemies under the color of fighting al-Quaida.  We saw that happen to some of the folks who wound up in Guantanamo because their neighbor, cousin, or brother-in-law collected a bounty from the US for labeling them as a terrorist.

                If it is not public, there are all sorts of possibility for abuse.

                Pakistan is both at war and an ally of the US--go figure.

                Yemen is willing for the US to do its dirty work but covered up for the folks who did the Cole bombing when it was being investigated in 2001.

                Doing stuff in public winds up clarifying relationships and protects our security.

                I agree with the general line of melvynny's argument that the use of targeted killing is an unnecessary expansion of authority just like the expansion of authority to launch nuclear weapons.  There should be checks and balances on both.

                While those practical reasons might seem obvious, that is likely only because of sixty-six years of precedent arguments.

                50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

                by TarheelDem on Sun Feb 17, 2013 at 07:42:46 PM PST

                [ Parent ]

    •  Not all drones are armed, some for surveillance (0+ / 0-)

      Would you outlaw surveillance drones as well?

      The president of Yemen publicly stated that he has personally approved every US drone strike in Yemen, as described in this WP article..

      Drone strikes in Pakistan began at the invitation of the Pakistani government and continues with target information passed by Pakistan's military to the US military.

      In both Yemen and Pakistan, drone strikes are limited to remote provinces where a concentration of terrorist groups live. Those countries' police and military deal with terrorists in the rest of their territories. No parallel exists between drone strikes in Yemen or Pakistan and an IRA leader living in NY.

      Armando made a good case for the legality of drone strikes in his first diary in this series; a good read.

      We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate. -Pres. Obama, 1/21/13

      by SoCalSal on Sun Feb 17, 2013 at 10:32:37 AM PST

      [ Parent ]

      •  laws (0+ / 0-)

        We purportedly believe in the rule of law--would it be okay for the president of the US to give permission to Britain to drone an IRA terrorist?  How about if the vice president of Venezuela secretly tells us the okay to drone Chavez?  I don't think you have the right to attack on foreign soil without public permission of the other government--and congressional approval--and international court approval.  Otherwise, it's vigilantism.  Being the judge, and the jury, and the executioner was, and is, wrong.

        What needs to be recognized is the ease of production of crude drones.    Drones are today's lynchings--easy, without consideration of the murdered.  Did Yemen give us a list who we could kill?  Do we get punished for killing innocent bystanders?  Do the targets get a chance to face their accusers?

        Apres Bush, le deluge.

        by melvynny on Sun Feb 17, 2013 at 10:45:49 AM PST

        [ Parent ]

  •  The general notion that the US (5+ / 0-)
    Recommended by:
    Armando, janinsanfran, JesseCW, chuckvw, willyr

    can engage in war-like acts unilaterally is probably not the best policy.  Not for the world and not for us.  It is profoundly not leading by example.

    And since we are discussing things which will unlikely happen in the current political clime, why not propose a better solution?  

    The solution is to be found in making nation-states responsible, at least initially, for terrorists harbored in their countries as a police matter.  The UN, if it had any credence, would be the best place to raise those issues.  Then if those nation-states can't or won't do anything about at least minimally proven claims, then further actions could be taken against shown terrorists and/or those states.

    "To recognize error, to cut losses, to alter course, is the most repugnant option in government." Historian Barbara Tuchman

    by Publius2008 on Sun Feb 17, 2013 at 09:08:01 AM PST

  •  Step One: Being honest about "terrorism" (5+ / 0-)

    By adopting the presumption that it is only we who wage "counter-terrorism" and they who practice "terrorism" rids your entire essay of any substantial meaning or relevance but for a charmingly naive discussion about procedure.

    Surely your bureaucratic contortions to dress up our state-sponsored murder with fatuous procedure must apply with equal force to the president of the Iran when he contemplates a proposal to murder an American "terrorist", of which there are many, and thus making it as legal (and thus morally palatable for your bourgeois senisitiviities) as Obama murdering a child.

    Such sophistry for so vile an entreprise.  Save it for the war crimes tribunal if ever if one established.  

    •  Interestingly (3+ / 0-)
      Recommended by:
      janinsanfran, Gary Norton, oysterface

      I think the President of Iran has as much a right to challenge threats, as his nation perceives them, as the United States does.

      Though not a subject of this essay, the question of whether the United States has engaged in hostilities with Iran through its Flame and other operations is an interesting one.

      I think Iran has a very good argument that it is permitted under international law to act as if it is in a state of war with the United States.

      However, you misunderstand the nature of state versus state belligerence with the issue of terrorism.

      While Iran may or may not be supporting terrorist non state actors (I do not know), its actions are those of a state, not an non state actor.

      Your argument really is inapposite to what is being discussed in this post.

      •  A Difference without a Distnction (3+ / 0-)
        Recommended by:
        chuckvw, Indiana Bob, MPociask

        Are the acts of a Hezbollah "terrorist" different from a CIA drone pilot?  Terrorism is terrorism, no matter the paymaster.  Putting lipstick on the pig of what you call state v state belligerence (i.e. counter-terrorism) versus "terrorism" means nothing more than a pointless exercise in legalism.  I am sure the death squads we financed in South America, our proxy torturers in Syria and Israel, etc. all needed pretty rubber stamps before cashing their cheques from the US Treasury.

        The inane suggestion of an advocate for the proposed murder victim says it all about your blind faith in a bad faith process.  Start with first principles: murder is murder, the rest wil follow.

        •  Hezbollah's acts (5+ / 0-)

          are not that of a state actor.

          They are covered under a different legal rubric.

          Whether they are terrorism under international law is a very complicated question.

          However, their intentional targetting of civilians is either a war crime or an act of terrorism.

          In either event, their actions violate international law, for what that is worth.

          FTR, I strongly disagree with your argument that this is a distinction without a difference.

          •  Quelle Difference? (5+ / 3-)

            A war crime versus an act of terrorism??

             LOL! Please....

            Perhaps you ought to have your consciousness raised a tad.  As per Ustinov, war is the terrorism of the rich and terrorism is the war of the poor.  It's a cliche because it is true.

            You are engaged in a process of whitewashing (and I mean that in every wayin explaining your motives.) murder so that Obama can find a way to dress up murder as "counter-murder" and thus make it a good thing.

            Just because the thugs and killers sit in government offices makes them no less culpable than your average every day daycare bomber.   People like you who invent legalisms as cover for killing people have proven throughout history to far more dangerous than any so-called terrorist. ....and a thousand times more deadly.

          •  When a State continue to kill far more civilians (6+ / 0-)

            than combatants, and redefines combatant to mean "military aged male", the intent of that State becomes clear.

            Whatever mewling noises of regret the State or it's least ethical apologists might make in an effort to keep the public complacent, the intent is to murder civilians.

            We are not required to limit ourselves to the claims the accused makes in his own defense.  We are allowed to view objective evidence.

            Bombing weddings is committing terror strikes.  That's what you're still defending.

            income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

            by JesseCW on Sun Feb 17, 2013 at 10:04:02 AM PST

            [ Parent ]

          •  What about Hamas, then. A "state" actor, by most (1+ / 0-)
            Recommended by:
            majyqman

            definitions.

            Problem here that has not been discussed is the definition of terrorism. It is too fluid and manipulable. Thus, Homeland Security can investigate Occupy Wall Street, or the FBI against other peaceful protest groups in the 60s, 70s, and 80s, etc, etc., under the pretext of counterterrorism. Terrorism is a meaningless term unless it is allowed to apply to ALL violence against ANY civilians for political purposes. And nation-states have been and continue to be among the largest perpetrators of terrorism throughout history.

            Otherwise, it's an undefined, laughably flexible term that can by employed to manipulate national and global public opinion to excuse the most heinous acts of political or physical repression imaginable -- by nations or non-state actors.

            E.g., the Chinese are LOVING the term for application to their own western Muslim Uygher and Tibetan political dissidents. Go figure.

            "Government by organized money is just as dangerous as Government by organized mob." -- Franklin D. Roosevelt

            by Kombema on Sun Feb 17, 2013 at 10:55:31 AM PST

            [ Parent ]

        •  I don't see a good reason (0+ / 0-)

          To consider "murder is murder" to be a first principle.

    •  Empty rhetoric, excuses not to think. (0+ / 0-)

      Art is the handmaid of human good.

      by joe from Lowell on Sun Feb 17, 2013 at 09:43:06 AM PST

      [ Parent ]

  •  no CONTEST occurs without COINT (3+ / 0-)
    Recommended by:
    Armando, chuckvw, majyqman

    and unfortunately there have been too many exceptions and subterfuges with regard to this requirement n US history:

    (4) if the president is given the authority to act as Commander in Chief, he must comply fully with international laws of war.

    Warning - some snark above‽ (-9.50; -7.03)‽ "We're like a strip club with a million bouncers and no strippers." (HBO's Real Time, January 18, 2013)

    by annieli on Sun Feb 17, 2013 at 09:16:57 AM PST

  •  What is "the criminal law enforcement approach?" (3+ / 0-)
    Recommended by:
    Armando, JesseCW, SoCalSal

    We have devised excruciatingly elaborate procedures for dealing with crimes once committed. And Yes, attempts and conspiracies are also crimes, albeit cases on these categories often seem on the awkward edges of criminal law.

    As for making a key element for a "kill order" going to Congress, why do we think involving another branch of government would make the decision - OK, the proposal - of the Executive Branch a more valid decision? (Rachel Maddow's MSNBC special tomorrow night on the seeds of the Iraq War probably will show us how easily an an administration bent on action can confabulate presentations in justification.)

    As for "notice and an opportunity to be heard" ... I'm reading (perhaps too soon; I see Part 3 is coming) that if traditional criminal process can't be followed, notice is to be given to other government officials in the US and the opportunity to be heard is discharged by some sort of - ostensibly - closed door hearing before a special arbiter.

    Even though that proposal involves all three branches of government, I think it sounds like posting banns in a small closet. The operation of some of the Patriot Act's most odious provisions have involved all three branches ... and I don't think the interests of justice have been advanced by those processes in any apparent or meaningful way.

    At some point, we have to deal directly with the issue of "enemy combatants" within our shores or outside, American citizens or not. For I think that is what terrorists in this modern era seem most like to many Americans.

    2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Sun Feb 17, 2013 at 09:18:41 AM PST

  •  Question (2+ / 0-)
    Recommended by:
    Armando, chuckvw

    Isn't it true that all or part of the AUMF have been codified into the NDAA legislation that is intended to be permanent?

    So if the AUMF is repealed, what parts of it will remain in place due to NDAA or other legislation?


    "Justice is a commodity"

    by joanneleon on Sun Feb 17, 2013 at 09:21:47 AM PST

    •  the surveillance aspect are (1+ / 0-)
      Recommended by:
      joanneleon

      to a large degree (but there really is no real categories in the 2001 AUMF, it is a blank check), but not the use of force aspects.

      •  The other huge issue is (6+ / 0-)

        that it's questionable whether these targeted killings really are counterterrorism tactics and then there is the imminence issue.  

        There are questions about whether our drone strikes are also being used to take out the political enemies of the leadership of the countries we are operating in.  There are questions about whether we have used drone strikes to pressure other countries. For example, in Pakistan, during the period of time when they pushed back after an errant drone strike killed a lot of people, they cut off our ability to move supplied through their country.  During the time when we were pressuring them to open the routes again, the frequency of drone strikes ramped up significantly to almost every day.  

        There is also the question about whether these powers are being used as tools of imperialism and counterterrorism is just cover for that.

        And of course, there is the track record of our government in identifying terrorists.  Look at all the people we swept up into Guantanamo.  


        "Justice is a commodity"

        by joanneleon on Sun Feb 17, 2013 at 09:35:16 AM PST

        [ Parent ]

        •  The imminence issue (1+ / 0-)
          Recommended by:
          SoCalSal

          is an interesting one as I do not understand the White Paper's argument for requirement of imminence to target a military objective. That is not what the Laws of War require.

          It is more in line with the idea of a criminal law enforcement approach.

          Your other points are good ones and impact the policy calculus in particular.

        •  They're not *counter* terrorism tactics. (1+ / 0-)
          Recommended by:
          majyqman

          income gains to the top 1% from 2009 to 2011 were 121% of all income increases. How did that happen? Incomes to the bottom 99% fell by 0.4%

          by JesseCW on Sun Feb 17, 2013 at 10:07:42 AM PST

          [ Parent ]

  •  Bringing preventive action into... (8+ / 0-)

    the criminal justice system seems to me to be more dangerous than leaving these actions within the military/war powers sphere.

    There is a bright line between what can be done under the war powers and what can be done under the police powers.  I fear that creating a criminal-justice category that allows force to be used against those not convicted of a specific criminal act, under a process that includes the full roster of rights-of-the-accused, has a much greater threat of allowing that sort of action to migrate into the larger criminal justice system than citing these actions as expressions of the war power.

    The idea of a "neutral arbiter," then, should remain within the executive, like immigration "courts" and EPA appeals boards.  It's a good idea to have such a process to prevent abuses and maintain high standards, though.

    Art is the handmaid of human good.

    by joe from Lowell on Sun Feb 17, 2013 at 09:30:29 AM PST

  •  Obama should just sign the War Powers Act (1+ / 0-)
    Recommended by:
    sandbox

    with its various dealines.
    Counter-terrorism is war (on terror).
    I don't think Congress or the courts or commitees should involve themselves in these operations at all for the same reason those are bad things to do in war.
    Extending this to others  would be extremely dangerous as it would create a power vacuum and mix military with politics.
    The problem with the drone operations is that they can escalate because they are easy and cheap to do. If there were only 10 or so per year nobody would care.

  •  Just want to say I found this helpful and (6+ / 0-)

    thought provoking. I've been certain, mostly intuitively, that the neo-cons and GW Bush went off the rails (willingly) post-9/11 by insisting that their response be only within in a war powers frame, ignoring the criminal justice/law enforcement possibilities.

    Most of our deep shame as a criminal rogue nation since 9/11 arose out of actions enabled by that decision.

    Our chance of recovering some vestige of international respect (not mere dominant force of arms) would consist in helping to create a widely agreed upon international legal framework for dealing with non-state terrorism. Until, unless, we do this, we're part of the problem, not part of the solution.

    Keep hacking at this, lawyers. Without the discussion, we'll never get there.

  •  Option 2 does not seem to me (1+ / 0-)
    Recommended by:
    JesseCW

    to be workable:

    (2) if the president believes that there are situations where a criminal law enforcement approach is not adequate, he must inform the Congress of the specific situations where he wishes to depart from the criminal law enforcement approach and invoke his Commander in Chief powers;
    Given that such a mechanism currently exists (i.e., a small, select group of Congress critters who get to hear super duper secret things) I have no recollection of said critters being anything more than a rubber stamp for executive action.

    And, sadly, option 3 of a neutral arbiter seems to run the same danger.  How often has the FISA court turned something down?

    So while these look good on paper in terms of separation of powers and due process, what actually would give them teeth?  It seems to me that the end result is simply more of the same: an all-powerful executive that is judge, jury and executioner.

    •  There is no requirement (0+ / 0-)

      that any one be a rubber stamp.

      They should not be.

      •  No, and I hoped and assumed (0+ / 0-)

        that you would say that.  But as written, there's nothing that gives them teeth.  So what would you propose that would do that?

        •  What do you mean by "teeth?" (0+ / 0-)
          •  So that it's not just a rubber stamp. (2+ / 0-)
            Recommended by:
            Armando, SoCalSal

            So that the executive has to present evidence, is held to account for doing so (e.g., is the evidence complete, how was the evidence gathered), that there are real enforcement mechanisms if either of the two above do not occur, and that mechanisms are established for the evidence presented to be challenged, rebutted, for the executive request for action to be denied and, if the executive goes ahead and does it anyway, for there to be repercussions.  Things of that nature that are built upon and reinforce the constitutional separation of powers and guarantees of due process.

            •  I'm not sure the level of review (1+ / 0-)
              Recommended by:
              pamelabrown

              we would prefer is achievable.

              •  Possibly (or probably) not. (1+ / 0-)
                Recommended by:
                Armando

                But that doesn't mean that we can't or shouldn't lay out what we would like to see.  So I'd still really like to hear from you some details about what you would propose for options 2 and 3 that would try to prevent abuse of power from the executive branch and that would preserve due process.

                And since I have to go out now, you've got lots of time to respond.  :)

              •  I hope whatever you write (2+ / 0-)
                Recommended by:
                Armando, oysterface

                in part 3 includes not just the theoretical or ideal but how these solutions can be realistically incorporated in today's world.  Al Q., IMO, is not a criminal organization:  its goals are to subvert or overthrow governments.  Is this still under the purview of law enforcement?  Is that realistic or effective? If the law enforcement model (which appears to be where you're heading) is what you advocate are we looking at the issue in a vacuum, one removed from always elevating the "rights" of the individual over the the country?  Could a person be elected president with that perspective?  

                Lots of strands that don't  allow for easy binary solutions: I applaud your willingness to genuinely address a Gordian Knot.

  •  I took a great class a few years ago (3+ / 0-)
    Recommended by:
    Armando, Militarytracy, oysterface

    on the subject of how to deal with perceived emergencies in a legal framework.

    This discussion fits right in. Is there an administrative law framework that could be acceptable? Adrian Vermeule has a warning about that. Basically, if there's a genuine emergency, the people who want to exercise a framework to slow down the response will inevitably be bulldozed. It's not clear that any rule of law can stop that.

    The idea that we should need "routine" anti-terrorism operations conducted by the military gives me serious anxiety. And yet apparently we do. And I surely do not want to turn those operations over to local police.

    Ok, so I read the polls.

    by andgarden on Sun Feb 17, 2013 at 12:04:59 PM PST

  •  Pretzel Logic (1+ / 0-)
    Recommended by:
    BigAlinWashSt

    I would like to remind those who compare piracy on the high seas to terrorism, that most of the historical pirates were actually called privateers. They were sanctioned by naval powers. An example is Francis Drake. Another example is Blackbeard. Both were privateers for the British navy but when they were no longer needed they turned to piracy.

    Those on both sides of the argument today have twisted themselves up in an orgy of pretzel logic trying to justlfy what those opposed to the use of drones, to go after terrorist conspirators in foreign countries or domestically, call extra judicial killings. Those favoring the use of drones are equally twisted up in pretzel logic while they invoke war as an arguement.

    The war arguement to fight terrorism is like using a shotgun to kill a mosquito. It's overkill and unnecessary.

    So where does that leave us? Have we turned the CIA into an international police force going after terrorist conspirators based in foreign countries? I hope not. And what about the drone pilots, in their bunkers in Saudi Arabia, being used by the CIA? Are they military or civilian? What about the use of drones domestically? The FBI is an investigative agency and the justice department through the US Marshall service actually is our federal police force. Here is the rub. Police, whether local or federal are paramilitary law enforcement agencies. Allowing domestic police forces to use drones in extra judicial killings is definitely unconstitutional, however, stop and frisk is unconstitutional but the police get away with it.

    Knowledge is Power. Ignorance is not bliss, it is suffering.

    by harris stein on Sun Feb 17, 2013 at 12:14:27 PM PST

    •  Call war powers against terrorism overkill... (2+ / 0-)
      Recommended by:
      sandbox, Militarytracy

      ignores the rather relevant issue of scale.

      Invading Iraq with hundreds of thousands of troops is not the same thing as launching a single missile every months or so, or sending 30 guys on a raid.

      In international law terms, the issue you're raising here is called "proportionality."  If you want to discuss whether the drone strikes are proportionate, perhaps it's worth keeping in mind that fewer people have been killed in the drone strikes that have targeted al Qaeda over the past 11 years than died in one al Qaeda attack in 2001.

      Art is the handmaid of human good.

      by joe from Lowell on Sun Feb 17, 2013 at 12:20:36 PM PST

      [ Parent ]

      •  Right now (1+ / 0-)
        Recommended by:
        BigAlinWashSt

        there are a lot more than 1 missile a month being fired in Yemen, Pakistan, North Africa and the Sub-Sahara. In Afghanistan there are raids being launched every night with a lot more than 30 troops. Will that change once our combat troops leave Afghanistan? That remains to be seen.

        Otherwise, it sounds as if you are uninformed or at best misinformed. Maybe you should read more than just Daily Kos.

        Knowledge is Power. Ignorance is not bliss, it is suffering.

        by harris stein on Sun Feb 17, 2013 at 12:51:18 PM PST

        [ Parent ]

        •  The Afghan War is a different venue. (0+ / 0-)

          My comment was about the drone program, in the comment section of a story about the drone program.  Why would you reply by talking about the Afghan War?

          You should really drop the chest-thumping.  It makes you look like an asshole.

          Art is the handmaid of human good.

          by joe from Lowell on Tue Feb 19, 2013 at 07:12:26 AM PST

          [ Parent ]

  •  'considering existing US law' (0+ / 0-)

    As far as I can see our US law has been tweaked to the point where it really no longer exists. All our sacred documents are now used to paper over any legal constraints to the global neocon/neoliberal agenda that 'owns the place'. There are no checks or balances on the power wielded by our government here or globally.  

     Nothing about the CIA is reasonable or even legal.. they are outside by their nature of being a covert extralegal secret security force. They are our KGB or Gestapo. I found this by Brennan to be chilling..

    I want every member of this committee to be an ardent advocate, proponent, and defender of the men and women of the Central Intelligence Agency.

    And I see it as my obligation to represent them to you on their behalf, so that when times get tough and when people are going to be criticizing and complaining about the CIA, I have all of you to say you knew about what the CIA was doing, you supported it, and you will defend it.

    If all of this Orwellian bs about pre-crimes or imminent threats is made legal by the AUFM then it seems to me that to unravel the web were caught in we need to begin by repealing this horrendous bogus legislation. It has spawned  odious anti-democratic legislation and agencies to implement the GWOT. Which is a bogus war as terror in itself will never end a perfect Orwellain enemy which makes pre-criminals (thought criminals) out of any one the spooks or the 'owners of the place' decide to kill, hold indefinitely, invade or occupy. I am not holding my breath however as the security state that was implemented using 9/11 as a pretense, a flimsy excuse, seems so entrenched with the new laws and interpretations of old law that I doubt that this will happen. War is Peace and Ignorance is Strength.
    Now I will tell you the answer to my question. It is this. The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power, pure power. What pure power means you will understand presently. We are different from the oligarchies of the past in that we know what we are doing. All the others, even those who resembled ourselves, were cowards and hypocrites. The German Nazis and the Russian Communists came very close to us in their methods, but they never had the courage to recognize their own motives. They pretended, perhaps they even believed, that they had seized power unwillingly and for a limited time, and that just around the corner there lay a paradise where human beings would be free and equal. We are not like that. We know what no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power. Now you begin to understand me.

    George Orwell, 1984        

    •  As long as Congress approves (0+ / 0-)

      I think the US government has some latitude in the area of national security.  The Constitution permits the CIA to exist and to do at least some things that perhaps we wish they wouldn't.  There is no constitutional requirement that government be wise.

      The taxing and spending clause in Article I, Section 8 of the Constitution includes the general welfare clause, which has been interpreted expansively to give constitutional justification for the modern welfare state.  But the taxing and spending clause provides not just for the general welfare, but also the common defense.  I argue that "common defense" and "general welfare" must interpreted the same way, either both interpreted through strict construction or bother interpreted through narrow construction.

  •  Very good article. I'm glad (2+ / 0-)
    Recommended by:
    Armando, johnny wurster

    you framed this broadly, as a counterterrorism policy, rather than getting pigeonholed into the discussion about drones which seems to get off on separate tangents.

    The interesting thing about this issue is that it really isn't new, we are simply seeing a new manifestation of it. The United States has had ongoing town counterterrorism efforts overseas for years. Their fall into two categories. First to try to disrupt terrorist networks and secondly to catch terrorists who have committed terrorist acts against United States. We have apprehended and tried many such individuals as part of these efforts, including the Blind Sheik. Some of them have been arrested in United States but others were arrested or at least apprehended by the US overseas or turned over to US authorities by foreign governments. Whether or not we killed any of them overseas is an open question.

    What is new is that, with the rise of Al Qaeda, we actually had an entity that effectively declared war on United States. We are still engaged in trying to defeat the enemy. In that sense this never had anything to do with concepts of pre-crime or assassination, it was simply killing of enemies who have declared war on you. As it has progressed however, the clarity has been lost since there seems to be less certainty as to whether the people being killed are in fact enemies of United States.

    I agree that there needs to be a stricter regimen in place to deal with attacks against terrorists. However, as you suggest, it is unlikely that such a regimen will be in place or even given serious consideration as long as the AUMF is in force. I do not consider it reasonable to think that the AUMF will be repealed, or even amended, until after we have completely left Afghanistan. Even then, putting together a substitute document will be difficult because some factions will want to preserve a military type option to deal with future attacks on United States or US interests overseas.

    One thing though is absolutely clear, none of these attacks by the US are being done without the consent of the countries in which the attacks occur. If anyone thinks that the drone attacks, or for that matter the Seal attack on Osama bin Laden, were done without the express or implied sanction of the Pakistani government, they are deluding themselves. All of the anti-US rhetoric that the Pakistani government tolerates or even gins up is merely done for home consumption to distance the government from United States. If they did not agree with the US attacks there are many ways in which they could effectively shut them down, something they have chosen not to do. The same can be said of US attacks in Yemen. In the case of Somalia the situation is somewhat different because there arguably is no government, or at least functioning government, to either consent or oppose our actions.

    In answer to some questions raised above, the Barbary War, and there were really two of them, was finally authorized by Congress through An Act for the Protection of the Commerce and Seamen of the United States, Against the Tripolitan Cruisers., which would, in modern days be called an AUMF. Interestingly, Jefferson had specifically asked for a declaration of war and got this instead.

    As for Poncho Villa, there was no Congressional action that I know of, but there was certainly no need for any. Poncho Villa was a Mexican general who was involved in a revolution and when the United States stop siding with him, he invaded New Mexico, attacked US troops and civilians, and absconded with property. Under any reasonable definition it could be considered an invasion by foreign country and Wilson was totally within his rights to launch whatever actions he deemed necessary to put an end to that. In fact, the Constitution even allows for the suspension of habeas corpus in the event of invasion.

    Further, affiant sayeth not.

    by Gary Norton on Sun Feb 17, 2013 at 12:22:41 PM PST

  •  A third way? (0+ / 0-)

    I suggest that the criminal and military/national security frameworks are both inadequate and that trying to kludge a pragmatic framework borrowing from both to address terrorism leaves the system too open to abuse, such as the executive branch unilaterally trying to define the boundary.

    My preferred idea would be to address the question of terrorists and non-state actors through international law.  Once established, say through an additional Geneva Convention addressing modern non-state combatants, then Congress can take up the question of how much the U.S. wants to comply with international law.

  •  Who are the terrorists this country should (0+ / 0-)

    be concerned about?  What role has this country, especially the CIA, had in fomenting what is called terrorism?  Does the new authority take into account the US and other imperialist western countries creating instabilities in countries for their resource wars, their goals for world domination, etc.?
    Many questions about what the US role on this planet should be answered before a new approach can be developed.  The US is the largest terror organization on earth and the war on terrorism is just an excuse to protect western bankers, oil corporations, the MIC and global corporatism while they rape and pillage other countries, and to protect and aid Israel in it's expansionist goals.

    "The Global War OF Terror is a justification for U.S. Imperialism. It must be stopped."

    by BigAlinWashSt on Sun Feb 17, 2013 at 01:14:24 PM PST

  •  Accepting things at face value (1+ / 0-)
    Recommended by:
    janinsanfran
    In both cases, a criminal law enforcement approach, for a variety of reasons, was not workable.
    How do we know that this was true?  It was asserted by the US government, the same government that asserts that military commissions provide due process.  What data is there to say that it is true?

    There are assumptions about Pakistani behavior and the compromised nature of the ISI.

    Like the implementation of torture at Abu Ghraib and Guantanamo and like the practice of extraordinary rendition, it seems to me that someone in the national security/intelligence community at a high level wanted to gain the power to use targeted killing in this manner contrary to the ban on assassinations.  And also seemed interested in moving to using drones in this manner.

    Was the information about the lack of alternatives fixed around the policy?

    In the case of Al-Awlawki, was he the piece in the narrative that Nidal Hasan, the Fort Hood shooter, did not act alone and acted as part of a terrorist plot?  Well, when will the public be able to see that evidence?

    The broad exercise of state secrets privilege to shape public perception instead of just protect state secrets means that the public will never know.

    In some ways this parallels the way that the "no alternatives' logic about the use of nuclear weapons altered the US assertions about the law of war.  And brought power to the executive--but more specifically brought power and permanence to the military.

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Sun Feb 17, 2013 at 01:23:08 PM PST

  •  Let's argue less about "what the meaning of is is" (2+ / 0-)
    Recommended by:
    Sven Boogie, janinsanfran

    and more about what's right.  If you have to work that hard to legally justify conduct, we all know if it's right or not.  

    Hint:  It's not.

    Simple question:  Are we a country that wants to permit a small cadre of self appointed "deciders" to be Judge Dredd, who get to decide if it's OK to issue kill orders for citizens of the USA without any before the fact oversight because, at the end of the day, that's what we are talking about.  

    Enuf dancing around, 'mando.  

    Many hands make light work, but light hearts make heavy work the lightest of all.

    by SpamNunn on Sun Feb 17, 2013 at 03:37:49 PM PST

  •  This is how it will change (1+ / 0-)
    Recommended by:
    janinsanfran

    We can sit here all day and howl about the same old same old, doves verses hawks, and get no place.

    When you have fresh facts, new ideas, and people are listening again and processing it all all over again, this is how you change things when things have changed.

    If you are successful, you will lead a movement that questions the existing program on all fronts and they'll do what they always do to retain the power for the future under such heat and gaze....THEY WILL SHUT IT DOWN FOR TODAY because such power no longer suits the need or purpose.  You may also get some of what you argue for but that will likely be held close to the vest in classified legalese too.

    I have learned a few things about arguing with my government's power in such situations.  I will probably really know a thing or two just in time to die.

  •  I strongly disagreed with your last analysis (0+ / 0-)

    and here is part of the reason why.  You did however imo, start on the "left foot" here.

    Why it's almost like those defenders of the CONtinuing erosions under our "dem" pres would be up in arms if this idea ever achieved fruition. http://my.firedoglake.com/... which is really nothing new to those of us in the anti-war crowd http://www.opednews.com/... It does raise the question though as to whether support for such an effort completely undermines the support for what is going on now, leaving the current supporters of it in a bit of a quandary or having a need to explain how if "everything is all right now" such a move is needed or desirable.

    http://www.democraticunderground.com/...

  •  As Greenwald said (and Jefferson) (1+ / 0-)
    Recommended by:
    BradyB

    As columnist Glenn Greenwald notes,

    “Without any due process, transparency or oversight, there is no way to know who is a ‘senior al-Qaida leader’ and who is posing an ‘imminent threat’ to Americans. All that can be known is who Obama, in total secrecy, accuses of this.”
    And Jefferson even had similar thoughts:
    It would be a dangerous delusion were a confidence in [politicians] to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism — free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power.
    And finally also quoting Greenwald:
    That many Democratic partisans and fervent Obama admirers are vapid, unprincipled hacks willing to justify anything and everything when embraced by Obama - including exactly that which they pretended to oppose under George W Bush - has also been clear for many years.
    The hypocrisy would be amusing if it wasn't so chilling.

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