Harold Koh, Legal Adviser to the State Department, held an informal public discussion a couple of days ago with his predecessor from the Bush administration, John Bellinger. This was an American Society of International Law event, held at John’s law firm, Arnold & Porter, and moderated by my old friend and ASIL’s Treasurer, Nancy Perkins. CSPAN covered it, and the video is now available: The Obama Administration and International Law, February 17, 2010. (If I can find a youtube version from ASIL, I’ll see if I can embed it.)
I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event. My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments – and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public. While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance at Opinio Juris international law blog that was very well received. Harold Koh has also been doing some experimentation with different avenues of communication, and this kind of unscripted, informal discussion is an outstanding example of that.
(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on. So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully – but less informatively – phrased. So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion. To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.)
The conversation ranged across a wide variety of issues, including something that Julian Ku noted over at Opinio Juris blog (where I’m cross-posting) with respect to DOS international law counsellor Sarah Cleveland’s recent University of Virginia Law School speech on the Obama administration and international law – the pace of treaty exchanges. John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (a record 90 or thereabouts, I believe) than at any point in American history.
On the broad question of whether the Obama administration’s international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren’t, they were being changed. But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn’t very easy.
Dean Koh was asked about targeted killing, including a specific question about targeted killing aimed at American citizens. The exchange takes place at approximately minutes 58-65 in the tape. The context is a question from someone – I believe, but couldn’t quite hear the feed, from an NGO – unhappy with targeted killings of American citizens, and wanting to know, among other things, whether an American citizen would have the right to contest the evidence against him in a court. I raise this because Dean Koh’s response was being directed to someone who had strong views, apparently, that the practice, particularly against Americans (who, in the view of the US government, had made themselves liable to attack by joining with groups in hostilities with the United States), was unlawful. The nuance, in other words, might have been different had it been someone, wanting to know why the State Department wasn’t out in front defending targeted killing as a practice.
Dean Koh’s response was interesting, in that he noted that he had served in both Republican and Democratic administrations, and as a human rights lawyer had sued both Republican and Democratic administrations. He added that he already a permanent job, and so in effect (I paraphrase) he wasn’t beholden to anyone in formulating his legal views. He went on to say that he would leave the government if he concluded that targeted killing was illegal. He did not say that he had concluded that it was legal, but that he would leave if he concluded that it was illegal and, (my) presumably, if that conclusion were not accepted by the administration. Having said that, however, he added that he was still there.
This is a good place at which to caution against over-interpreting an impromptu discussion. I would like to conclude that the upshot here is that not having left is not a reason to conclude that Dean Koh has concluded that the practice isaffirmatively legal. All he said was that if he were to conclude that the practice was illegal (and presumably that conclusion not accepted), he would leave office. It would appear either that he has concluded the practice is legal or that he has not drawn a conclusion as yet. (And of course, targeted killing is too broad a description; under what circumstances and what exactly is meant?) But I do not think it is fair in this setting to draw firm conclusions.
On the other hand, I do think the question important enough that the legal adviser does need to draw some formal conclusions and put them out there, preferably in testimony. What was said here suggests that the legal adviser to State might still draw the conclusion that targeted killing is unlawful. If I were the administration, ever more committed by the President, the Vice-President, and down the chain of policy and command, to targeted killing especially via drone aircraft – embracing it as a strategy and publicly endorsing it – I’d be concerned that my chief international lawyer had so far reserved judgment on the question. I have written in various places that I think Republicans in Congress need to press the State Department for its formal views on this – actually, I think the people who have the most reason to be concerned should be the administration itself.
That would include, I should think, particularly officials and officers in the CIA and civilian intelligence agencies responsible for parts of the drone program outside of the uniformed military – while it would be unfair to say what Dean Koh’s view of their actions would be in the future, surely a senior CIA official would have some concern that after a year, the DOS had not affirmatively embraced in public the lawfulness of the practice or produced a public legal rationale for its lawfulness. I am no fan of the ACLU on these matters, and I agree with the US government, under both Obama and Bush, that the UN special rapporteur exceeds his mandate to call upon the US government to respond – but as to the substance, I think the ACLU and Philip Alston are both quite right in saying that, yes, the US government needs to state the basis on which it thinks its several varieties of targeted killing programs (those in AfPak, those elsewhere, for example) are lawful. I think it needs to say so and assert it as formal opinio juris of the United States. The failure to do so and the increasingly conspicuous absence of the administration’s most senior, and most widely admired, lawyer on public international law and human rights to defend the practice cannot be a good thing. At what point does the State Department legal department have to express a view, stand with its clients or, as Dean Koh says, stand down?
Again, while it is wrong to over-interpret here, were I a senior CIA or NSC official with operational responsibilities for Predator attacks, I would wonder what exactly to make of the failure of the State Department’s lawyers to step up and defend what I’m doing – and instead to raise the possibility that no conclusion had actually been reached. Would I think my risks had just been increased – risks of investigation or prosecution five years from now, ten years from now, in some European court? Or by a future Holderesque Justice Department?
Far fetched? Maybe. But I think I would be saying to myself, hmm … my colleagues and I are out there killing people, and causing some number of collateral deaths, and the President says approvingly in speech after speech, we’re taking the fight to the enemy wherever they are. And the Vice-President, well, it’s as though he’s beaming with pride over his flock of Predator gooselings … meanwhile, however, the administration’s lawyer whose public approval, in that world of combined law-diplomacy-global elite opinion matters most to the personal legal protection of the officials tasked with carrying out the President’s policies … does not seem to have drawn a conclusion. At least not one he’s willing to share with the rest of us, and with Baltasar Garzon or Luis Moreno Ocampo.
So my own conclusion is – you can’t extract a firm conclusion as to Dean Koh’s views one way or the other. But there are compelling reasons why it shouldn’t – can’t – go on forever that the State Department expresses no view in public, and gets behind that view in public legal-diplomacy. If I were the general counsels to the CIA, DNI, DOD, the White House counsel, etc., I think I would have some concerns – and that would be so even if private assurances had been given.
But Dean Koh also made some references as to the legal basis for global counter terror operations generally – and referred to them in the context of the domestic authorization to use force from Congress, the AUMF, and then the international law of armed conflict. I have argued in various contexts, and will argue some more, that as a matter of international law, targeted killing – to the extent and in the places and against the targets that the administration has undertaken, has committed itself to undertaking, and is likely to be forced by circumstance to contemplate over two terms in office, nearly a decade – cannot really be justified as armed conflict with a non-state actor on a global basis, governed by the laws of war alone. I don’t think that’s true as a matter of jus ad bellum or jus in bello.
I will be arguing (in a new paper soon) that unless the Obama administration plans to backtrack and adopt the Bush administration’s “global” war on terror as a basis for asserting the laws of armed conflict however and wherever it uses force – all of which I consider to be several bridges too far in defining armed conflict for purposes of the laws of war as such, and perhaps the one area where I agree with Mary Ellen O’Connell – it’s not really talking about armed conflict. Not in a legal sense. Not seven years from now, when it sends a miniaturized Predator missile to take out three terrorists who are in some compound in, say, a remote part of, oh, Nigeria in which the central government, caught in civil war, no longer has sway – part of a group that swears allegiance to jihad but has no command or control link to Osama bin Laden.
The legal doctrine the US wants, in that case, is not armed conflict, but the more general category of international law of self-defense. I am somewhat concerned that the Legal Adviser made no reference to legal rationales for the use of force beyond the narrowest armed conflict law – law which might serve the administration for the next couple of years, but seems more and more like a purely formal, purely notional reference to armed conflict or, for that matter, Al Qaeda or 9-11, as the years roll by. It seems to me that the law at issue here is the more general category of international law of self-defense, and that the US government does itself no good and much harm in the long term by not asserting the legal category that most accurately describes the uses of force that, over the next decade, it contemplates actually undertaking.
That’s my own legal view, of course, and it will be important to watch as the State Department expresses its positions on these and other issues. The discussion covered many other aspects of the Obama administration’s approach to international law, although I have focused closely on this one aspect. It was an outstanding event, and my thanks and congratulations to the organizers and participants – I wish I could have been there. I hope many people will take time to view the video.
(I have over at my almost-entirely dormant home blog a much more aggressive – too incendiary for VC, I finally concluded - discussion of this, posted up prior to the ASIL discussion. Instapundit picked it up, so it has circulated pretty widely, so I thought I should reference it here. In large part, though, it is a highly critical comparison of the administration’s “on offense” and “on defense” approaches to counterterrorism.)
Anderson says:
risks of investigation or prosecution five years from now, ten years from now, in some European court? Or by a future Holderesque Justice Department?
Very puzzling. The hallmark of a “Holderesque” DOJ thus far seems to be that it prosecutes none of the malefactors of a previous administration.
I wonder what Prof. Anderson has in mind here?
February 19, 2010, 10:47 amAnderson says:
(Also, I think a sit-down strike by the targeted-killing folks would be a very good idea, to force the issue. It certainly is not fair to ask people to kill in their country’s name without having some legal foundation for doing so.)
February 19, 2010, 10:51 amPLR says:
Quoting: “The legal doctrine the US wants, in that case, is not armed conflict, but the more general category of international law of self-defense.”
So that international law trumps due process, apparently. Fascinating.
February 19, 2010, 11:18 amyankee says:
I am no expert in international law, but this has got to be one of the most bizarre things I’ve ever read on this site. Nigeria is neither the U.S., nor a U.S. ally, nor a country where the U.S. is involved in an ongoing military conflict. Your claim is that the United States can kill American citizens in Nigeria who it believes to be terrorists without any kind of process—and the rationale for this is self defense? In what sense can such killings possibly constitute self-defense? Your hypothetical doesn’t even include them engaging (or planning to engage) in hostilities against the U.S. or its allies, just that they’ve “sworn allegiance to jihad.”
Your defense of your hypothetical is tantamount to saying the U.S. has the right to kill anyone it wants, anywhere in the world, without any kind of process, provided it believes that they might constitute some kind of threat to somebody. And, under this theory, it may do so in the name of self-defense. I take this as a contradiction in terms.
Also, am I the only person who sees the links after the jump in blue? It’s odd, since normally links on this site are green.
February 19, 2010, 1:20 pmOren says:
It’s curious what sort of process could be afforded a target in the mountains of Pakistan. I don’t think the Pakistanis will approve of sending a Federal Marshal to serve an indictment and, even if they did, the Karachi government has virtually no control over the area anyway. Did you know some of these guys don’t even have regular mailing addresses?
If a suspect wants to voluntarily submit himself to the authority of the United States, he can have a process. Heck, if he is a citizen then he ought to be entitled to a day in Federal Court. But by necessity such process cannot apply it is within the power of United States to even grant such a process. The law does not allow us to ask for the impossible.
February 19, 2010, 1:32 pmbailey says:
What would you make of it? You would make of it that you can’t count on folks like this to aid, advocate or otherwise assist you if you got into trouble and, further, that the interests of this country, in Koh’s mind, could easily take a back seat if some higher international authority decided it should be so.
February 19, 2010, 1:33 pmOren says:
You are correct, that would not be enough. There would have to be facts linking these individuals to planned attacks against the US or Allies or show that they had materially aided those that had.
This is repeated ad nauseum in these threads without the slightest hint of how these killings are actually done. Suppose, for a moment, that the killings are actually approved in a multilevel process in which considerable evidence is collected, analyzed and then vetted. That’s not “anyone it wants without process”, you might argue that it’s not due process (although, as above, I don’t think that holds water) and it’s certainly not legal process but the notion that the Executive just picks these names out of a hat and kills them is entirely without logical basis.
If that is the claim, then I can say I’m firmly against the Executive picking names out of a hat and then killing them.
February 19, 2010, 1:38 pmInstapundit » Blog Archive » HAROLD KOH AND OTHERS talk “targeted killing.”… says:
[...] HAROLD KOH AND OTHERS talk “targeted killing.” [...]
February 19, 2010, 1:41 pmMike G says:
You have a much more charitable view than I do of the guy at the top weaseling out of making a hard choice and leaving his subordinates to twist, slowly, in the wind.
February 19, 2010, 1:43 pmyankee says:
I’m trying to address Anderson’s actual hypothetical, which doesn’t include multilevel review, planned attacks against the U.S. or its allies, or the “impossible to capture” fact pattern you described in your previous comment. Maybe something narrower is defensible, but what Anderson is arguing is absurd.
February 19, 2010, 1:45 pmOren says:
Mike G, Koh is at State, not the DOJ. I don’t think he has the power to solve this problem — that’s Holder’s job (and maybe Dawn Johnson, if she ever gets confirmed).
February 19, 2010, 1:46 pmOren says:
Ok, well that’s progress. First, what makes you think that Anderson’s hypo doesn’t include multilevel review? Without more, I would assume that it was conducted in line with the extant SOPs for TKs which presumably require more evidence than “some midlevel CIA analyst thinks so”.
Second, I think “a remote part of Nigeria” most certainly meets some crude definition of “outside the power of the US to provide legal process”. The individual operating there, even if a US citizen, must surely no that he is outside the bounds of the US legal system. I would venture to say this is precisely why he is there.
Lastly, you do have a good point about the standard of factual review. If the “planned attack or aided someone who did” standard is not met, I would agree that the killing become much harder to justify.
February 19, 2010, 1:54 pmtroll_dc2 says:
Is targeted killing not a response to the fact that we have no place to put the targets where we can be sure that they will be kept incarcerated? If we kill them, then we avoid that problem.
February 19, 2010, 2:05 pmOren says:
No, I think it’s a response to the fact that we have no ability to reliably capture every target of opportunity deep in Yemen/Pakistan/Afghanistan, let alone serve them an indictment and haul them to court.
At least as far as the domestic due process claim goes, I cannot imagine how is cognizable beyond the ability of the government to actually provide it. The international law question (in which Prof. Anderson seems to be more keenly interested) is a different matter.
February 19, 2010, 2:14 pmBob from Ohio says:
This is interesting in an “angels on head of a pin” way.
No US Justice Department will ever, ever, ever, prosecute a CIA officer for killing “alleged” terrorists. This zero chance goes under zero if its a member of the Armed Forces.
I do find Koh’s Sgt. Schultz comments amusing though.
February 19, 2010, 2:26 pmBart DePalma says:
The problem with relying upon the customary international law of self defense is that it is generally limited to retaliation after an attack or prevention of an imminent attack. This is impractical in the shadowy world of low intensity conflicts with terrorist groups.
I would suggest that a more apt precedent is that of the customary law of piracy.
Customary international law prior to recent international agreements held that mere status as a pirate allowed maritime military authorities to engage and kill the pirate. Due process was limited to a determination of whether the capture was in fact a pirate. After that, the pirate was executed.
Universal jurisdiction was applied to pirates under the theory that they are a threat to all of mankind. A navy could engage and kill pirates even if the pirates were preying on shipping of another country.
Terrorists are analogous to pirates. While the level of due process due a terrorist after capture should be the subject of some discussion, an at-large member of a terrorist group should be subject to military attack regardless of whether the group is currently attacking the United States or whether the next attack is imminent. The mere status of being a member of a terrorist group should open the member to military attack by any military around the world.
February 19, 2010, 3:04 pmwillis says:
Apparently, if someone has a gun aimed at your head, your response will be tempered by what you learn after you have inquired as to his/her citizenship. Give some thought to the possibility that if you are constrained by your reading of the law from targeting for death those who have targeted you for death, you will lose. No one will mourn your passing and there will be no follow on lawsuits against those who killed you.
February 19, 2010, 3:12 pmArrowSmith says:
When will we prosecute Obama for war crimes? Inquiring minds want to know.
February 19, 2010, 3:19 pmCrunchy Frog says:
I am picturing in my mind a parade of future Ollie Norths in front of cameras testifying how they proudly killed bad guys, by order of the President of the United States, and are being prosecuted by some Justice Department weenie of a future administration. Should be a nice bit of political theater.
February 19, 2010, 3:21 pmOren says:
FIFY.
February 19, 2010, 3:33 pmbailey says:
Zero chance? We have many soldiers being charged and prosecuted right now. Do you think they find it funny? As the saying goes, you can beat the rap but you can’t beat the ride. With friends like the State Department legal staff, we don’t need any enemies.
February 19, 2010, 3:52 pmMark in Texas says:
yankee — Your defense of your hypothetical is tantamount to saying the U.S. has the right to kill anyone it wants, anywhere in the world, without any kind of process
You say that as if it were a bad thing.
February 19, 2010, 4:16 pmAnderson says:
Customary international law prior to recent international agreements held that mere status as a pirate allowed maritime military authorities to engage and kill the pirate.
One obvious problem with the analogy is that pirates were typically found on the high seas, not in Karachi or Lagos. The absence of a sovereign on the high seas made apprehension of pirates there less of an insult than would be a Predator strike in the land territory of a purported sovereign.
Laws on piracy are an interesting source, but the Communications Revolution has obviated much of the rationale behind laws allowing captains to hang pirates from the yardarm, etc.
February 19, 2010, 4:32 pmBob from Ohio says:
Charged by the military, not by the Justice Department.
Also, not being charged for carrying out their orders.
February 19, 2010, 4:33 pmMark Field says:
Oren, the biggest problem I have with your argument involves timing. Why is it urgent that we assassinate this hypothetical person now? Why can’t we just wait patiently until we are able to capture him?
Now, I can understand if you want to add facts to the hypothetical which include some soon-to-happen attack. That, of course, brings the argument back into a fairly traditional realm of self-defense and/or necessity. But I think you need to add those facts.
February 19, 2010, 4:34 pmOren says:
Bailey, the soldiers that have been charged and prosecuted so have been for violations of the UCMJ.
February 19, 2010, 4:38 pmOren says:
You are right, if there is no risk to leaving him free to go about his business then we should not kill him.
I would assume that the review process for the killing already requires some level of immediacy to the threat. In fact, once we establish the first prong — involvement in planning attacks or aiding those that do — I think that this standard follows almost automatically.
Second, you have to balance the immediacy of the threat against the opportunity for a strike later. Most of these guys don’t pop up at the local drug store all that often so a chance to terminate might be the only viable shot at him we will get in years. You can’t assume that we will get another chance later when his plot is closer to completion.
February 19, 2010, 4:42 pmAnderson says:
Good point Mark, especially given that we know that hastily killing the guy is likely to cause collateral damage that hurts us in many respects.
That in itself is sufficient to make a kill seem the worse option barring the kind of emergency that Mark postulates and that Oren perhaps is assuming.
February 19, 2010, 4:44 pmMark Field says:
It’s this which, I think, generates the opposition. The potential for abuse at this level is pretty obvious.
February 19, 2010, 4:46 pmJohn Moore says:
I believe pirates were also captured or killed on land – at lawless sea-ports for example. That would be very similar to killing terrorists in lawless areas such as Somalia or South Los Angeles.
February 19, 2010, 4:56 pmOren says:
Granted. I think there’s no doubt that we elect a President to carry out faithfully and honestly the duties of his office. That he may sometimes abuse the power we entrust him is not controversial by any stretch of the imagination.
The fact remains that some targets that are of security import might “pop up” for a fleeing moment when we can decide to strike them or not with no guarantees that we will ever have a shred of intelligence on them later. To say we must always assume that another opportunity will arise is simply counterfactual.
Anderson, I would assume it’s a given that the process for approving strikes takes into account both the immediacy of hitting the target and the potential for collateral damage.
February 19, 2010, 4:56 pmAnderson says:
That would be very similar to killing terrorists in lawless areas such as Somalia or South Los Angeles.
Very funny. Remember that when China hits Uighurs in South L.A.
Anderson, I would assume it’s a given that the process for approving strikes takes into account both the immediacy of hitting the target and the potential for collateral damage.
So one would hope, but who knows? Trust the president!
February 19, 2010, 5:01 pmJohn Moore says:
One of the advantages of being the United States is that, in reality, we do control our territory (including South LA). Hence it doesn’t qualify as stateless.
Another advantage is that we have the deterrent power to prevent people from doing this on our territory.
The world is not composed of equal nations, contrary to transnational-progressive fantasies.
February 19, 2010, 5:04 pmOren says:
Isn’t that why we elect him? To carry out the duties of his office.
If you don’t trust the President to make even a routine decision in the area of national security (bomb this house, don’t bomb that house, send the 101st Airborne instead of the 3rd Marine Compnay) within the context existing executive branch decision making processes we’ve got much bigger problems that a few Predator drone strikes.
I happen to have believe that Obama and his cabinet have instituted a procedure that, while perhaps not exactly the way I would do it if I were CINC, is reasonable under the factual circumstances. Moreover, I don’t see any alternative decision making process that is either constitutionally permissible or desirable on a policy level.
February 19, 2010, 5:48 pmSuperSkeptic says:
Am I correct in my perception that this is entirely an exercise in post-hoc rationalization designed to legitimize the United States’ actions under any circumstances from now to the hereafter?
If so, we should be wary of other nations adopting our self-serving rationales in the future, despite our “deterrent” capabilities (which I presume is an allusion to nuclear weapons – which, btw, other nations have and are continuing to develop) or any “transnational progressive-fantasies.” If we decide unilaterally when another country is no longer sovereign or “stateless”, our self-serving rationales would equally allow (morally if not “legally”) other countries to unilaterally decide we aren’t doing whatever it is they think we should be doing, or that they need us to do, at some point in the future.
On the other hand, self-defense is in the eye of the beholder. The question then becomes a raw power question of who is the judge. Right now, we are the judge.
Perhaps though, we should contemplate a set of just rules for when we are and for when we are not the judge. That may be naive in the international real-politik context – but if so, then why worry about “legal” rationalizations at all?
February 19, 2010, 6:29 pmOren says:
SS, it’s an attempt to formulate procedures for employing the military force that Congress authorized against Al Qaeda. Saying it’s designed to legitimize our actions is backwards — it is meant to be a procedure for taking those actions.
What sort of process would you prefer that the executive take when confronted with time-sensitive intelligence that a known terrorist is going to pop up briefly in Somalia, Yemen or Waziristan?
February 19, 2010, 6:54 pmCrunchy Frog says:
No serving soldier is going to opine on his President’s liberal and internationalist tendencies while tesifying before Congress, whether he agrees with them or not.
FIFY FAIL.
February 19, 2010, 7:00 pmMark Field says:
But we didn’t entrust him with any such power. In fact, our ancestors expressly took that power away from the Executive at Runnymede and no one has ever given it back.
And I agree with SuperSkeptic as well (and Anderson, of course, but that pretty much goes without saying).
February 19, 2010, 7:08 pmOren says:
You are right. The media will pick up that trope for him.
My mistake.
What power exactly are we talking about here? I thought we were talking about a US President wielding the power of the US military in compliance with an authorization from Congress.
George Washington was empowered by the Congress to declare martial law and employ deadly military force against US citizens in Western Pennsylvania. He did, in fact, do just that. Nothing that Bush or Obama did came anywhere close to that. Perhaps they did not truly understand our system of government back then ….
February 19, 2010, 7:15 pmSuperSkeptic says:
Oren,
I don’t see anything regarding “procedures” in Professor Anderson’s attempt to develop a theoretical legal framework for “just war” more broadly as “international self-defense”. It is precisely that we have decided to wage some kind of war first – then we develop a legitimizing theory in the international community – that makes it a post-hoc rationalization. I think it is, in fact, backwards (except if you consider Professor Anderson’s argument that his theory is how we have actually been handling the situation the whole time). People seem to be criticizing you for assuming there are procedures (and there probably are at some higher level not being disclosed to the general public or that I am simply ignorant of) for implementing our novel theory of action. But this isn’t about “forumlat[ing] procedures” (it seems to me), it’s about formulating a theoretical international justification for our actions after we’ve already decided to take them. That’s a completely different question from how the Executive branch decides to go about ordering predator drone strikes and whether we use any safeguards. My concern is when/if another State on the international level adopts our self-serving theory to our detriment. And at that point, we would also be concerned – separately – with that State’s internal procedures and safeguards, obviously.
As to your question – I could care less as long as we’re not bombing within the United States. Nuke ‘em all as far as I am concerned. Carthago delenda est. But again, I don’t see this as about procedure, it is about theory. Having a concern for our theory’s procedural implementation is perfectly reasonable and legitimate as well.
February 19, 2010, 7:22 pmCrunchy Frog says:
We are, and that is why I am slightly mystified as to why Obama (and Bush before him) would want to relegislate the rationale behind our actions in Pakistan, or anywhere else.
In the off chance that we find some other non-al Qaeda affiliated group contemplating nastines toward ourselves and our posterity, we can deal with that when the time comes. Coming up with a Grand Unified Theory of Self Defense only opens up the administration to increased criticism, for what it already is authorized to do.
February 19, 2010, 7:59 pmMark Field says:
We’re talking about the fact that Magna Charta said that “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”
We’re talking about whether the US President can, notwithstanding this lack of executive power, assassinate US citizens for some reason. There’s no authorization from Congress, unless it’s secret, but even if there were such authorization, it would be irrelevant.
Washington didn’t employ deadly force against anyone in that Rebellion. He rounded up about 20 suspects; none were shot or even executed. A few served time in jail or were fined after trials.
Moreover, Washington declared martial law, which he apparently (it’s unclear) believed (a) he could do unilaterally; and (b) had the effect of suspending the writ of habeas corpus. If Washington actually did have that authority, then I’d agree that the rules of due process don’t apply.
February 19, 2010, 7:59 pmAnderson says:
We’re talking about whether the US President can, notwithstanding this lack of executive power, assassinate US citizens for some reason.
How fucking spooky is it that we are EVEN HAVING THIS DISCUSSION?
What has happened to this country?
DAMN, people!!!
We might as well live in North Korea, for all you care about any liberties. Is this what we’ve come to? We can shop on the internet, so that’s all we need in the way of fundamental liberties?
February 19, 2010, 8:11 pmpetB says:
It is not necessary needed to prosecute them. Maybe, 20 years from now, the description of what they did will become public, with their names and the names of their victims.
February 19, 2010, 8:34 pmpetB says:
If such theory is formulated and accepted by other nations, becoming an international law, China may invoke its right to kill dalai-lama in the case of armed uprising in Tibet.
While he is on US soil, preferably. With a drone and only a necessary bit of collateral damage.
February 19, 2010, 8:46 pmJohn Moore says:
Since there is nobody to enforce the rules, they remain as I characterized them – fantasies of trans-national progressives.
IOW, if other countries want to do bad things to us and can get away with it, our previous behavior (at least in this particular matter) is not going to make any difference in their behavior.
You used the operative word: raw power.
I think, SS, you need to be super-skeptical of the idea that the world plays by the some form of fair rules. It doesn’t. While more democratic nations are less inclined to be egregious violators, and are susceptible to the sort of moral balancing you suggest, they are also not going to be a problem in any case. It is the really evil regimes that might present us a problem, and frankly, they could give a damn whether we played by any nice set of rules.
That’s realpolitik, and there is a reason for the prefix “real.”
February 19, 2010, 9:45 pmOren says:
No, but it’s implied that the Executive does not flip coins to determine who is targeted. That is, the legal framework assumes a factual posture at least vaguely similar to what has been developed.
Well, it’s a give and take. If there is some modification to the procedure that you propose that will fix the flaws in what we have already done.
February 19, 2010, 11:03 pmBart DePalma says:
Anderson says:
The law was similar for brigands in failed states such as much of Germany during the Reformation. Failed states share the absence of a sovereign you found on the high seas. Terrorists generally base in failed states.
February 20, 2010, 12:04 amRicardo says:
Washington called out the militia of the several states to suppress the rebellion, an action that is clearly in line with the Constitution. I have never seen any documentary evidence that he used the regular army (Henry Lee, who commanded the militia force, had left the U.S. Army by 1794) to suppress the Whiskey Rebellion nor that he imposed military law on Pennsylvania at any time. Certainly, there were no military trials in the aftermath of the rebellion. Moreover, it’s not even clear the writ of habeas corpus was suspended there given that the U.S. only made 20 arrests.
This would be the first of many times that the militia (and, later, the National Guard) would be called out to suppress civil unrest and restore the rule of law.
February 20, 2010, 12:38 amOren says:
The AUMF is the Law of the Land.
(1) We are not talking about assassinating US citizens “for some reason”, we are talking about assassinating them because they fall under the AUMF.
(2) The AUMF is most certainly authorization to use military force against a certain set of people. Not just “for some reason” but because that person meets the criteria detailed therein.
(3) How could such authorization be irrelevant in the context of the Presidents power to wage war? The depth of this claim is somewhat astounding. If Congress is not empowered to either make rules concerning the military forces or authorize their use then who is?
Again, I reiterate my offer that any US citizen that submits to the lawful authority of the US be granted full due process in a Federal Court.
The threat of an armed militia is not ‘deadly force’? The suspects were rounded up because they had the sense not to fight the United States, not because Washington wasn’t willing to use force to achieve his will.
Ah, the power of framing. Again, if we are talking about the President picking names out of a hat and having them killed, I have said already that I am against it.
On the other hand, if we are talking about the President, after a formal process of evidence gathering and analysis, using military force against a US citizen that, based on that evidence is:
If we are going to talk about a fantasy land where Obama wakes up on the wrong side of the bed and bombs people for the heck of it, I’m out of here. If you want to confine the discussion to situations that are at least vaguely relevant to the facts as they exist, you have to drop the idea that anyone is arguing that the President can kill people “for some reason” or “without any kind of process”. It’s not even a straw-man, it’s a straw-set-of-facts that no one in their right mind would defend. It is most certainly not the policy of the United State government.
February 20, 2010, 2:24 amOren says:
If such a thing happened, it would be a diplomatic matter between the USA and the PRC, not a legal matter between the DL (or what’s left of him) and the PRC.
If our diplomatic position is so compromised at that point that we have no leverage against Chinese depredation of the sort then we will have to endure it. Certainly an injunction of other ruling isn’t going to convince the PRC otherwise.
February 20, 2010, 2:31 ambailey says:
Spooky? There were US citizens who fought with the Germans in WWII. Was it spooky to kill them as well? Did we need additional “warrants” to authorize it
February 20, 2010, 9:46 amSoronel Haetir says:
Which would be an ironic reversal of fortunes given how China has been in the position of having to endure such insults to sovereignty in the not too distant past.
February 20, 2010, 10:49 amMark Field says:
Assuming the AUMF even applies to this hypothetical, the Due Process Clause trumps it.
That wasn’t clear before (though I guess you assumed it), but it doesn’t matter. See above.
Let me try it this way. Do you believe George Washington would have considered it legal to issue a fatwa against Benedict Arnold? That Lincoln should have ordered Stonewall Jackson assassinated?
Those words aren’t in my version of the Constitution.
No, actually using “deadly force” is “deadly force”. Showing up with lots of armed men to arrest someone for trial was not then and never has been “deadly force”.
I’m sure you are. Hell, that fruit hangs so low that I daresay everyone in all of human history is against it. The problem is, you’ve created a process with no protections against it happening. Nor against simple errors.
February 20, 2010, 11:08 amSoronel Haetir says:
Sorry but I suspect that the AUMF coupled with whatever deliberative process the executive undertakes would satisfy whatever process is in fact due. Historical examples don’t work so well because the ability to target known individuals at a moments notice is a new capability. Certainly there have been historical targeted killings, even dating back to the revolutionary war (thinking specifically of General Fraser being singled out at Saratoga)..
I just don’t see that the ability to make such decisions on a case by case basis rather than having to make them wholesale and hope the troops on the ground do a good job changes the legal bearing. You choose to leave the territory of your country’s civil jurisdiction and you are just not going to receive the full panoply of protections that civil authority offers. The more inaccessible you make yourself the less likely it will be that anything approaching normal civil process is going to be afforded.
Unless you think the AUMF does not in fact represent Congressional authorization to do anything, in which case we’re just going to be at an impasse. But if the AUMF would be enough authorization (for example) to put special forces troops on the ground to take out a convoy I don’t see that it matters that a drone borne missile was used instead. The tools are chosen based on opportunity, cost, risk, diplomatic considerations and other factors not on whether those tools are required by the AUMF or not. Congressional choices are now at the level of either repealing or altering the AUMF or budget levels, not at the level of whether a particular attack shall take place.
February 20, 2010, 12:05 pmOren says:
Can you explain what process is “due” to an American that is (by assumption) conducting war against the US in tribal Pakistan and who will (by assumption) only have his location known for a 2-hour window before disappearing again? Shall we indict him and send a Marshal to serve papers?
I do agree that if that citizen voluntarily submits to the authority of the US (like the rest of us), he should receive a full trial like anyone else but you can’t ask for due process in a situation where it is logically impossible.
(1) If an infantry brigade of the US Army caught up to Arnold and saw him retreating on horseback and had the option of either shooting him or letting him go, they can most certainly shoot him to prevent his escape.
(2) Are we talking before or after Fort Sumpter? Certainly afterwards Lincoln had Americans killed for far less. If Jackson surrendered, he would protected as a POW. Until that point, he would of course be fair game for a Union sniper. In fact, while the war was going on, it would even be fair game to slit his throat while he sleeps or poison his morning coffee.
I don’t know why you should have such contempt against the process by with the executive chooses these targets. As far as all the evidence shows, the process is neither arbitrary nor error-prone.
Disagree, the “make rules for the land and naval forces” gives Congress power to outlaw drone strikes altogether. That doesn’t give them power to decide about particular attacks, but they can set the ROE for all such attacks.
February 20, 2010, 2:28 pmMark Field says:
That’s not my position.
Sure, but that’s just stating your conclusion.
Neither do I. The problem is that this hypothetical is quite different from the one Oren has suggested. As I understand it, he’s posited someone far from any conceivable battlefield and posing no immediate threat.
This is a pretty significant departure from the hypothetical we were using above. Under this hypothetical, I have no problem using a drone to kill him.
I think this is much too narrow. After all, I doubt anyone thinks we could have sent drones to take out Roman Polanski in the middle of Paris.
Agreed.
Lincoln certainly did not think so. General Orders 100, which Lincoln himself issued, expressly prohibited assassinations:
“Art. 148. The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.”
Because (a) even if I think the current Administration is careful, I’m aware of many historical examples of executives who were not; (b) I know that human error is inevitable and that we need safeguards when it comes to killing people; and (c) I think the existing Constitutional provisions apply in war as well as in peace.
February 20, 2010, 3:11 pmBob from Ohio says:
Yes, why not, if it helped the war effort. Jackson’s fortunate death at Chancellorsville maybe lost Gettysburg (and hence the war) for the South.
We “assassinated” Admiral Yamamotto in WW 2. While I know some people then didn’t like it, it was done.
Killing enemies in wartime is fine, whatever the method.
February 20, 2010, 4:01 pmMark Field says:
Well, because Lincoln clearly thought it was illegal. He issued a “law of war” banning such conduct. His order simply reiterated what has been the law since 1215.
Why am I the one making the conservative argument here?
February 20, 2010, 5:16 pmOren says:
Sure, the President can bind himself by his own order. That doesn’t mean he was forbidden to so by the US Constitution.
That is an accurate representation of my position.
Does the situation change if he is in Yemen or Somalia? Pakistan is no more a battlefield than either of those places (at least one to which we are party).
I think our positions are not even irreconcilable.
Point (c) is a straw man. The Constitution applies but cannot be read to require the executive to do something that is plainly impossible.
As for (a) and (b), I think the procedural safeguards already in place under both of the last two administrations have been more than sufficient. At least there is no evidence that the procedure is error-prone.
February 20, 2010, 6:00 pmSoronel Haetir says:
Roman Polanski has not been determined to be a member of a group hostile to the US. If he were then the remaining considerations would be diplomatic as to whether a drone strike in Paris were worthwhile. Certainly by its own terms the AUMF does not eliminate such an attack from consideration.
That we would be exceedingly unlikely to carry out such an attack demonstrates both that France is not a failed state or anything approaching one and that nations are not equal upon the world stage. I could, for example, see such an attack on Mexico if we located an al-Qaeda training camp there.
Note that we have been quite willing to perform other indignities upon European sovereignty, such as the acts of extraordinary rendition. Just because a drone attack on Paris is beyond inconceivable in the current political climate doesn’t change whether it would be legal within the AUMF. framework. The fact that France does in fact control all of her territory however makes it far less likely that a drone attack on Paris would be either of necessary or appropriate.
February 20, 2010, 6:18 pmMark Field says:
The point of General Orders 100 was to state existing law, not to make new law.
In any case, you’re dodging the issue, which is that the Executive has been barred by the due process clause since 1215 from “in any way destroying” citizens without due process, and “due process” has always been understood to include judicial proceedings.
Pakistan very much IS a battlefield. Yemen and Somalia are not. That doesn’t mean I’d entirely preclude strikes in the latter two countries, but it does mean the burden shifts towards a strict necessity/self-defense situation.
That word “impossible” does not mean what you seem to think it means. And yes, the Constitution might very well prevent the Executive from doing something even if it can be done in no other way. That’s the whole point.
There’s a great deal of evidence it’s error prone. We’ve heard repeated reports that X, a high ranking Al Qaeda official, has been killed, only to find him alive and well a week later and a bunch of “collateral damage” at the site of the attack.
For a quasi-libertarian, you’re awfully trusting of the Executive. I say trust, but verify. That’s what due process does.
No, he hasn’t. But my objection is to a process which provides no safeguard against that. The whole US system is built on checks and balances; you and Oren are arguing to remove the single most important one (due process), one which has prevented exactly this sort of Executive overreach for 800 years.
Neither the AUMF nor any other statute gets interpreted “on its own terms”. It gets interpreted in light of the Constitution and other statutes and treaties.
You say this, but France has refused to extradite Polanski for 30 years. He’s no more accessible to US justice than is someone hiding out in Yemen or Somalia. Are you seriously making the argument that if we wanted to it would be legal — not pragmatic, not an exercise of raw power, but legal — for us to execute an American citizen like that?
February 20, 2010, 6:37 pmOren says:
Sure, but that’s just stating your conclusion.
On what grounds do you make this distinction? My understanding is that drone strikes in Pakistan have been conducted deep in regions that are far from any fighting whatsoever.
There is no way to arrest or detain the suspect, we have the option of either striking with the drone or doing nothing.
As to the second point, I don’t think the Constitution allows citizens to wage war on the US with impunity simply because they are out of the reach. I would like nothing more than for these men to surrender and be given a trial. Failing that optimal solution, the next best thing is high explosives.
Well, that’s not a failure of the targeting process, it’s an intelligence failure. Or X just decided at the last minute to go somewhere else. It is still manifestly correct in those situations that X was an enemy combatant within the meaning of the AUMF, even if he wasn’t in the right building at the right time.
Libertarianism is not about trust or skepticism about government, it’s about the proper scope for that government action.
I think there’s no shortage of verification either, considering that all these strikes go through post-operation review. It’s not like the government just forgets about them. They are analyzed both for effect and collateral damage. The results are then used to formulate the next attacks.
If you are going to complain about overreach, complain at Congress for the AUMF, not at the President. Congress ordered this to be done and Congress can order it to stop.
Also, what overreach? It’s not like Obama is having Republican operatives whacked when they go on ski vacations in the Alps.
Indeed. He meets that criterion but not the key first one, that of being properly the target of military force as authorized by the US Congress.
The first step is always to reconcile the President’s actions against the specific statutory authorization for the use of military force.
February 20, 2010, 8:06 pmSoronel Haetir says:
Mark Field,
You keep using the words “due process” like they have some magical meaning. I just don’t see it. The amount and type of process that is due varies greatly depending on circumstances and contemplated action. Due process does not require that a court be involved anywhere in the picture, that is just the common form criminal prosecution within the US takes.
Pursuing the Civil War did not require Lincoln submit his proposed targets to court scrutiny. I think anyone who would suggest such is required would get laughed at. The main differences I see between then and now is that the targets are a lot smaller (individual people in many cases rather than entire regions) and the command decisions are able to move up the chain of command much faster than ever before.
If your objection is to the fact that the US is currently pursuing a military strategy rather than a police strategy against terrorists in foreign countries that just seems like whining about having lost the political decision of how to approach the problem. Which is what a lot of what comes from transnational law types seems like as well. They wish there were some way to reach their desired political outcome despite the fact that most of the populace doesn’t want to go with them.
Let me ask this: Imagine Congress were to pass a declaration of war against an entirely non belligerent nation, that our elected leaders just went totally nuts and ordered an unjust war and that the President was foaming at the mouth to put it into effect. Do you think the courts have the authority to countermand such a decree?
February 20, 2010, 8:32 pmSoronel Haetir says:
Yes, I believe that it would be legal for Congress to empower the President to do so. Note I believe it would not be legal to do so within the US and that if the target were, for instance, to surrender at a embassy somewhere then far more process would become “due”.
It likely would not be legal for Congress to make such an authorization for just one person however, like everything else it would need to not be a bill of attainder and be a law of general applicability. I believe the AUMF satisfies both of these requirements.
February 20, 2010, 8:43 pmMark Field says:
In the context of this discussion, I’m using the words in a very specific way, a way in which those words have been used for 800 years. The reason I’m using the general phrase “due process” is that the due process clause incorporates that fundamental law — it’s the core meaning of the clause — and trumps the statutory and/or Executive authority which has been claimed to apply.
Agreed.
This is a straw argument. I’ve already agreed, several times in fact, that combat situations and strict necessity/self-defense cases are excepted. The hypothetical posed expressly ruled out those exceptions; hence the disagreement.
I have no objection to the use of the military per se, though I doubt the wisdom of that use at times. But the most important point isn’t the political one, it’s the legal one. The claim being made is that the President’s actions (as hypothesized) are legal, not that they are politically popular.
I have no idea what this has to do with the discussion, but out of courtesy I’ll answer: no.
February 20, 2010, 8:47 pmMark Field says:
Let me make sure I understand this. Your position is that the attainder clause gives more protection than the core meaning of the due process clause which has been established law for 800 fucking years?
Anderson was right.
February 20, 2010, 8:52 pmBob from Ohio says:
A ban on killing an enemy general has been law since 1215?
February 20, 2010, 9:01 pmMark Field says:
C’mon, don’t be silly. A ban on assassinating US citizens on presidential order.
I missed Oren’s post above, so I’ll respond to that here as well:
No, I was stating the actual law.
Common sense.
Nor does anyone else think this. But your own hypothetical that we’re discussing expressly rules out any “waging war” at the moment.
And the reason why they limit the scope is that they don’t trust government.
Post operative review is pretty cold comfort to a dead man. It’s even pretty cold comfort for all those prisoners at Gitmo who never actually did anything. Gee, if only we’d assassinated them instead, I’m sure they’d feel much better about it.
Congress didn’t order any such thing. Even putting aside my point that Congress can’t order it, the President is by no means obligated to order the murder of US citizens who aren’t engaged in combat or posing any immediate threat to the US.
It’s overreaching to murder anyone, even Republicans.
And that reconciliation should occur when it can do some actual good: before the hit.
February 20, 2010, 9:39 pmSoronel Haetir says:
Mark Field,
I brought up that utterly silly declaration of war to demonstrate that even where death is the ultimate outcome due process does not require court involvement. Congress could repudiate every treaty regarding how war is to be conducted, declare war on expatriots and the President could then go about prosecuting the war in any manner consistent with the decree.with
You seem to be hung up on whether some particular place is a battlefield or not. A place can be a battlefield because *we* choose to make it so, that choice is not solely in our enemies hands. With the use of drones the “battle” is likely to be short and rather local, but that’s just an effect of the chosen tools.
February 20, 2010, 11:33 pmMark Field says:
No, this is utterly wrong. What due process requires is that in the ordinary course of affairs — that is, outside the context of war — court process is required (see, e.g., Ex Parte Milligan). Everyone agrees that due process concerns don’t apply in war (though most people do believe that certain limits ought to apply even in war). Thus, you brought up a position nobody holds and treated that as somehow significant, yet you’ve failed to address in any way the actual issue at stake.
I wouldn’t say I’m “hung up on it”, but I think it’s a relevant consideration.
True, up to a point.
And this is, in a nutshell, what’s so objectionable about today’s conservative movement. It takes a principle everyone agrees with and then tries to extend it to an absurd result, protesting all the while that it’s doing nothing new or different.
Look, the Eiffel Tower is not a battlefield. Calling it one is Orwellian, not arguing in good faith.
February 21, 2010, 12:18 amSoronel Haetir says:
It’s only not a battlefield due to pragmatic considerations, all the things that go into deciding whether and how to go after a particular target or not. It’s not “not a battlefield” because it for some reason *can’t* be a battlefield, it just isn’t one. The considerations that militate in favor of Paris not being a battlefield and that counsel in favor of Somalia being one are issues of politics and power, not law.
February 21, 2010, 1:57 amOrenWithAnE says:
Spoken like a true Scotsman.
You’re right, that was an improper use of the phrase. I’ll substitute “carrying out military operations”.
This was responding to the idea that anything I said might possibly apply to Roman Polanski who is, as far as I can tell, not within the scope of any AUMF.
FWIW, I happen to a libertarian-ish because I believe that even perfectly-well-meaning, even saintly folks will invariably create suboptimal allocation of society’s resources when they wield coercive power without bound.
My point was that significant review happens on these strikes, both before and after.
I thought we had agreed that under limiting circumstances such strikes were OK (see your 3:11PM).
You had expressed that the purpose of the legal principles that you are wielding here is to prevent executive overreach. That itself begs the question — what overreach are we talking about here? It doesn’t seem to be in evidence.
Agreed. On the other hand, the “context of war” is capacious (see, e.g. Quirin, many thousands of miles from the battlefield).
Tokyo wasn’t a battlefield either, didn’t stop the US from bombing the living **** out of them.
February 21, 2010, 3:32 amMark Field says:
To paraphrase Edmund Burke, while no one can draw a line between night and day, yet on the whole they are tolerably distinguishable. Your argument amounts to saying that we can’t decide exactly when dawn breaks, therefore we can treat it as sunny at midnight.
And my point is that unless the review is independent, it isn’t a review at all. Nobody gets to grade his own paper and then announce that he reviewed it carefully so the grade is fair.
We did. My use of the word “murder” was an attempt to short-cut all the qualifications and make the sentence shorter.
Citing Quirin isn’t very persuasive. I think it’s generally agreed that the Court got it wrong. But even a military commission provides some level of independent review, so Quirin doesn’t help you even if the decision there was correct.
Assuming you’re correct about Tokyo, do you honestly believe it aids your argument to use that as an example?
February 21, 2010, 10:45 amSoronel Haetir says:
Sorry but this post seems even more like “I don’t like the fact that the political process reached the decision to use military rather than police, so I’m going to complain around that process and hope something sticks”.
Disliking the results of political processes is fine but not every such choice is subject to court review. The Constitution does not forbid everything bad (for some definition of “bad”). I see being killed for hanging out with folks who have publicly stated they wish to destroy the US (regardless of whether they have any chance of doing so or not) as being one of those things. This opinion is strengthened by the fact that more than adequate notice has been given that pursuing such a course opens one to becoming a target.
I am also trying to figure out what sort of review you think should be given once the political process decides that military force is both necessary and appropriate. The courts have been hugely criticized for trying to exercise jurisdiction over folks actually in US custody, I can’t imagine the outcry if they were to try and extend that to someone not in custody or subject to normal arrest procedures. (I say ‘try’ because of the limitations placed on orders by the DC CoA.)
You can argue that we are not at war, and to a certain extent I would agree with you, although I’m not sure how far that gets you. The AUMF is the functional equivalent of a declaration of war in every important respect. You’ve already agreed that the political branches have the power to declare and prosecute an unjust war. So if you like you can argue that what we are currently doing is that — an unjust war, but that still doesn’t get you any closer to stopping it because the political process disagrees with you. And I don’t see that changing any time soon.
February 21, 2010, 12:29 pmMark Field says:
No, my post is consistent with what I said before: that there’s a core principle of the due process clause — one that’s been around for 800 years now — which categorically prohibits what Oren’s hypothetical proposes. If your view is that the political process gets to overrule Constitutional prohibitions, then the discussion is pointless. If you have an argument that the due process clause does NOT preclude assassinations such as we’ve been discussing, I’ve yet to hear it from you or Oren.
I’m not sure why you think this supports your view. The holding in cases such as Hamdi reaffirms the role of the courts in reviewing Executive determinations (again, this is a core function of due process). As a legal matter — and that’s what we’re debating here, not the wisdom, not the policy, not the fact of majority support — this would seem to resolve the issue.
Constitutional restrictions exist precisely in order to prevent the majority from being carried away by the panic-stricken bedwetters among us. Again, if your position is that we should ignore the Constitution and simply carry out the majority view of the time, no matter what it is, then there’s nothing to discuss.
February 21, 2010, 1:18 pmSoronel Haetir says:
My position is that war is too important to trust to courts insulated from the people. Whether we are — or should be — at war is a political decision. Mistakes happen, I’ll be the first to agree with you there, I’m just not sure your proposed remedy would produce fewer of them. I suspect it would simply shift the sort of errors rather than the degree of error.
Oren has asked a couple times how you propose to provide due process when someone we’re after pops up and a decision has to be made about what to do. I too would like an answer to that. If your answer is simply “nothing” then again you are simply arguing against the political decision that we are at war.
Let’s try this, say the modern drone had become available during WW2, would either side have refrained from attempts on enemy leadership (both civilian and military, doesn’t matter)? Given that we launched at least one attack with the weapons of the time to perform such a mission I seriously doubt that anyone would have refrained if the capability were more widespread.
I guess that is part of what I find puzzling, as the weapons become ever more discriminating and more likely to hit the actual target their use comes under ever more scrutiny. I would have thought it would be the opposite.
If we weren’t using such weapons we’d be stuck doing Arclight on whatever spot we happened to think someone was hiding. Is that really preferable?
The intelligence capabilities simply go hand in hand with ever more precise weapons, the precise weapons wouldn’t be any use without those intelligence capabilities. But coupled with that is you then have to make choices about individual people rather than bridges or maneuver units.
Is that possibly the real issue, that you just don’t like that the weapons we now employ almost force us to decide that particular individuals will live or die, rather than the twist of fate presented by more haphazard weapons?
February 21, 2010, 3:15 pmMark Field says:
That may be your position, but it’s not a legal argument. The courts have never agreed with this (see, e.g., Milligan, Quirin, Hamdi, etc.). Their role may well be reduced, but it isn’t non-existent. Due process may be limited, but it’s not no process.
My answer to this was implicit in my question to Oren which triggered this whole debate: why do we need to do anything now? Remember: the hypothetical is that the US citizen at issue is far away from any battlefield and is not currently engaged in any “war” activities.
My position is that we can afford to wait, or even to plan an Eichmann-like snatch. We do this all the time with criminals here in the US (think Ruby Ridge or Waco, where the failure to wait led to such problems).
Now you’re straying from the hypothetical. I’m not debating the merits of taking out bin Laden; I’m all for it. My argument here is pretty limited, all things considered.
The issue here is not the weapon, it’s the target and the circumstances of the assassination being proposed.
No, that’s not the issue at all. Yet again I think you’ve overstated my position. I’m not opposed to the use of drones per se. I’m opposed to the specific hypothetical posed, which involves targeting (a) US citizens (b) in circumstances where they pose no immediate danger to anyone.
February 21, 2010, 3:55 pmSoronel Haetir says:
Okay, immediacy, that I can understand. Not agree with but understand. Why do something now rather than wait? Because we don’t know that another chance will come along before whatever the person is planning (or even what the people the person is helping are planning) will come to fruition. Military operations are like that, you take your best shot with the information you have not the information you wish you had.
I don’t think any of Mulligan, Quirin or Hamdin help you very much here since all of those guys were already in custody.
I also don’t see someone who is not doing anything (or at least not suspected of being in a planning stage for something) being a reasonable hypothetical. Being suspected of planning an attack somewhere but with no firm details seems more likely. Targeting someone who isn’t suspected of aiding a group hostile to the US just seems like it would be entirely arbitrary and I just don’t see that occurring
Aiding a nation’s enemies when that nation has decided to utilize military power is simply a chancy business. A person’s location when they are spotted is going to come into the decision as to what to do, anything from alerting civilian authorities in the foreign country, send a missile, send a helicopter gunship or in fact do nothing at all and wait for more information are all possible choices. I just don’t see court process applying to that choice if for no other reason than court processes are very slow.
As for whether some particular place is a battlefield, where is the battlefield when you are fighting an enemy that isn’t interested in gaining or holding physical possession of the land? Modern mobility helps both sides on this one, the enemy can attack where they see we are weak and we can attack targets who think they are far from any danger. I’m not sure that we are ever going to see anything approaching a classic battlefield again, where opposing forces know roughly where the other is and both sit back trading shots. That sort of warfare is simply suicide against any sort of modern force. So instead you see mobile skirmishes and any place can become a battlefield with little or no warning.
I’m trying to envision legal rules that would come to roughly the same answers the pragmatic choices have (since I think those decisions have been ‘right’ for the most part) and I’m just not seeing it. Legal rules that say “You can’t bomb Paris” are almost certain to end up stretched to “You can’t bomb Karachi or even Kabul.” I understand you think those choices have in fact been wrong, or at least wrong more often than I believe they have been, so for you that might be a feature not a bug.
February 21, 2010, 4:38 pmOrenWithAnE says:
What makes you think it’s not, exactly? As I understand, the targeting procedure has multiple independent levels of evidence collection and analysis before it goes to the President’s desk for his autograph.
Absolutely. The “context of war” is one in which you can strike the enemy wherever he is.
I actually strongly support Hamdi et. seq.
Once a person is in shackles, we ought to give them due process because we can and because they no longer are an immediate threat. An AQ operative on the loose in Somalia is not logically equivalent though.
An AQ operative in Somalia is, by nature of being involved in planning and supporting attacks against the US, engaged in the war. We have no idea if those attacks will come to fruition between now and the next opportunity to strike.
You have constructed a definition of “immediate danger” that is too narrow under the circumstances and defies common understanding of the English language. We do not have AQ’s schedule of attacks to determine when an attack is imminent and so we cannot even remotely conceive to catch their operatives “red handed”. Under any reasonable reading of the phrase then, an AQ operative that is planning/supporting such attacks constitutes an immediate danger even when he is sleeping peacefully in bed.
That’s a absolutely fact-bound question specific to each instance. It cannot possibly be true in all instances, for instance, if the suspect in question pops up so rarely that we are certain not to see him again before the next attack.
Review the evidence and deciding on the proper military course of action under the individual circumstances falls on the CINC. The preceding sentence is practically tautological.
I’m sure, by the way, that many drone strikes have been aborted on precisely this grounds.
February 21, 2010, 4:53 pmMark Field says:
That’s ok — it wasn’t my hypothetical. I’m just going with it because I think it poses an extreme test case. That said, AFAIK from what’s come out publicly, the hypothetical does resemble the situation with the cleric in Yemen whose name escapes me at the moment.
This issue comes up all the time in war. It is, in fact, the distinction between pre-emptive war and preventive war. There’s no support in international law whatsoever for preventive war (which was one reason why the Iraq War was so wrong) precisely because it’s too subject to abuse. That same principle holds good in this hypothetical we’re discussing, with the due process clause providing a much firmer foundation for delay than international law.
But the problem is, your approach here provides no actual safeguards against it. Even if such targeting were by mistake rather than malicious, there’s no check or balance.
You’re moving the goalposts.
As I suggested above with my quote from Burke, it’s possible to be flexible and pragmatic about this without being nihilistic.
I can’t imagine on what basis you’d say this. The evidence from Gitmo is conclusive that “mistakes were made” in capturing people. The only information we have regarding drone strikes is what the government gives us, and I don’t trust them to give us complete or accurate information. The sad fact is, you have no basis for your trust other than sheer faith in what the government chooses to tell you. Like faith without works, trust without verification is dead.
February 21, 2010, 5:07 pmMark Field says:
It’s all subject to the ultimate control of the same person. If a senior partner in a law firm gives a project to different associates, both knowing what’s wanted, the answer won’t differ.
And you’ve constructed one which says “shoot first and ask questions later”. Nobody thinks I can do this in my personal life; what makes it legal for the President to do it, given the express prohibition in the due process clause?
February 21, 2010, 5:21 pmSoronel Haetir says:
War is a messy business. Being able to exercise such authority is one of the prerogatives of a sovereign power. The President has been authorized to exercise that power in pursuit of al-Qaeda by the only body in the US with the ability to do so. That some targets may happen to be US citizens isn’t particularly important IMO.
The folks you are concerned for have the ability to remove themselves from the military target list by returning to the US. That some would face criminal charges after doing so is also of little importance IMO. The fact that they choose to remain effectively outlaws does not aid your argument for shielding them under the umbrella of due process.
That you continue to argue that suspected/presumed enemy agents have a right to some form of process without submitting themselves to the authority of any court strikes me as quite odd.
I take it by your asking for some sort of external review that you reject the classic unitary President? I would have thought that putting the actual decision in the hands of the President rather than somewhere down the chain of command due to communication lag is a good thing. I do subscribe to that classic unitary President, giving some sort of veto power over military decisions of this sort would not be in keeping with how our government has traditionally operated.
February 21, 2010, 7:05 pmOrenWithAnE says:
I agree completely, but this isn’t preemptive war — Al Qaeda already attacked the United States. It’s “preemptive” attacks against forces that are in a present state of belligerence.
Sure there is. First, there is in the internal safeguards and check, usually achieved by having the evidence reevaluated by someone not involved with collecting the evidence.
Second, there is final review from the President (and yes, each one of these goes across his desk for an autograph).
Finally, there is the institutional check: Congress — the body charged with making rules for the government and regulation of the land and naval forces — can investigate and prescribe changes to the procedure.
That’s the last time I’m going to argue with this straw man. The process is:
(1) Collect evidence indicating that the individual has the intent and capability to perpetrate future attacks on the US or her allies. Have this evidence reviewed for accuracy by an independent agent.
(2) Make a showing of military necessity for the strike and rule out lesser alternatives (arrest by the local authorities, grab-and-go snatch, …)
(3) Design a strike that is proportional and minimizes collateral damage.
Only in the bizarre world of Mark can that be considered “shoot first”. The questions are all asked and answered a dozen times before it even reaches the President’s desk.
Because your personal life is not military, it’s civilian.
February 21, 2010, 7:50 pmMark Field says:
This is dodging the issue. The due process clause expressly prohibits the President from doing what the hypothetical proposes. It expressly prohibits Congress from authorizing it. You have yet to provide a single basis for saying that the President can legally assassinate a US citizen who poses no immediate threat.
There’s actually nothing you or Oren have said which makes this obvious. Why do you believe this?
Remain outlaws? What are you talking about? They haven’t even been charged with anything.
That you continue to argue that a US citizen who is merely suspected of being an “enemy” can be assassinated by Presidential order (notwithstanding the due process and treason clauses) strikes me as quite odd. In fact, it strikes me as quite scary.
Depends on what you mean. There’s a “strong” version of the unitary executive and a “weak” version. I subscribe to the “weak” version: the President possesses the executive power and is solely responsible for all that happens in the executive branch. This says nothing about the scope or extent of executive power, merely that the President has it.
The hypothetical we’re discussing is preventive, not pre-emptive, for 2 reasons: (1) the person poses no immediate danger; and (2) the person hasn’t been shown to be guilty to an independent tribunal.
As I’ve pointed out repeatedly, this is NOT a “check”. That the John Yoo of targeting has “independently” approved the hit is no safeguard.
Your suggestion is also inconsistent with the unitary executive theory, whether strong or weak.
This is doubtful for practical and institutional reasons. If the President has such power as you’ve given him, it’s hard to see how Congress could intervene. Nor is it likely that Congress would. Regardless, it’s irrelevant: Congressional review after the fact isn’t what due process manifestly requires.
You actually have no idea what the process is. You’re simply inventing it.
You’re dodging. You ignored the part about that pesky due process clause. I’m constrained by law, the President is too; a different law, perhaps, but a law all the same.
February 21, 2010, 9:01 pmSoronel Haetir says:
Mark Field,
Okay, I do in fact subscribe to a strong unitary executive theory. I believe that agencies like the SEC are in fact violative of a proper understanding of the structure the Constitution lays out.
That does not, however, change the fact that you seem to be arguing for an entirely novel form of due process. Do you actually think the courts would accept this argument? You could, I suppose, argue that the courts have this wrong, just like I believe they got it wrong with regard to executive agencies.
I don’t see your argument that Congress will refuse to perform its job having much force. That is within Congress’ discretion. That they choose to be lax in one instance and micromanage in another does not change the distribution of ultimate authority.
Here we are simply in disagreement over what forms immediacy. I am in agreement with Oren that you are trying to make immediate far too narrow. Congress gets to decide who the enemies of the US are. I believe that power falls squarely within the power to declare war and to make rules for the armed forces. Whether they exercise that power well or poorly or not at all it is still solely theirs. And in this case Congress has made such a determination and given the President at least some direction on how it is to be acted upon.
Your use of words like murder and assassinate again make me think your problem is that modern weapons allow choices to be made on an individual basis. While killing the enemy may not be the goal of war it has long been one of the routes to victory. Mistakes have always been made in determining who the enemy is, I just don’t see how that fact gives rise to some novel form of process being due.
February 21, 2010, 9:42 pmMark Field says:
Novel????? That’s what’s so appalling about this whole discussion. The rule I’m talking about is not “novel”, it’s been the rule for 800 fucking years.
The courts have what wrong? Neither you nor Oren can point to a single court decision which justifies your position.
Let me try this one last time. It used to be common for Parliament to attaint someone of treason. The reason we have a prohibition in the Constitution against bills of attainder is that Parliament abused this power in ways which were manifestly unjust. So no, it’s not really accurate to say that Congress can identify our enemies.
Leaving that detail aside, note a couple of points about this history. First, even the English king — and even kings who claimed to be absolute monarchs — didn’t believe that they alone could condemn someone. No, those kings believed they had to have Parliament (or the judges) do it for them. Why? Because paragraph 39 of Magna Charta (I quoted it earlier in this thread) expressly forbade the kings from doing it.
Second, even though you just said Congress can declare who’s an enemy, you agree that it can’t identify a specific person; no, that would violate the bill of attainder clause. Instead, the President now magically has the power, which even absolute monarchs didn’t try to exercise, of identifying someone as a traitor and summarily executing him. And this despite the fact that it’s universally agreed (and that’s not rhetorical — it’s universal) that the due process clause enacts paragraph 39 of Magna Charta at a minimum and that the treason clause contains specific limitations on the power to find someone guilty of treason.
For all this you’ve cited not a single authority. Your whole argument consists of reiterating a mantra that the President gets to decide, when that is the very point under dispute.
I understand that you disagree, as a policy matter, with the Constitution. If you want to change the due process clause, you have the ability to advocate that via amendment. What you don’t have the right to do is just ignore it. Neither does the President.
As I said before, this is not my position. The law of homicide has always made distinctions based on various factors, including the immediacy of a threat and its significance. It’s the absence of those factors which leads me to object to your conclusion.
February 21, 2010, 11:18 pmSoronel Haetir says:
This is going to sound strange, but death in war is not punishment. Not in the way an execution order is. Just like confinement as a POW is considered non-punitive. It is the result of bad planning or bad luck or just having taken on a stronger opponent than you can handle. The normal processes that apply to criminal punishment just don’t apply in war.
Given that I believe I am arguing the status quo, from a position so historical that I don’t see it facing serious court challenge I think you’re the one who would need to come up with a court ruling that the executive cannot use legislatively authorized military force against enemy actors on foreign soil. I understand that you are arguing that the targets of these missile strikes are not actually enemy actors or at least are not so clearly enemy actors as to warrant such military action. I’m just not aware of any authority that says such a determination resides anywhere other than the political branches.
February 22, 2010, 12:09 amMark Field says:
The surreal thing is, I believe you honestly think this is true. The truth, however, is that what you’re asserting is a radical departure from the law and even practice of nearly a thousand years. The law I’ve relied on isn’t some novel modern doctrine, it isn’t “liberal” (unless you think Simon de Montfort was a liberal /sarcasm). The power you claim was one which Henry VIII didn’t think he had, nor any of the Stuarts. At least 3 clauses of the Constitution directly refute your position. In response you’ve cited not a single legal authority, nor could you, yet you seem to believe the burden is on me.
I weep for my country.
February 22, 2010, 12:35 amSoronel Haetir says:
In what way is it novel to use military force on foreign soil against legislatively determined enemies? That seems like the very core of republicanism to me. Who else besides the legislature is going to decide what class of persons are hostile to the country? Everything you’ve said so far makes me think you simply disagree with the assessment the legislature has made that military force is an appropriate response to the threat posed.
Certainly I have a difficult time reading your statements that letting a suspected terrorist slip by without action as being the correct option as anything other than disagreement with that legislative determination about the degree of threat and the types of responses that are appropriate. Do you have a different interpretation for me?
Also is the touch stone for you actually US citizenship? Do you object on legal grounds to these targeted killing policies when they are used against non-citizens? And if not how do you reconcile that with the language of the due process clause which contains no such limitation? And if citizenship doesn’t matter how is any such due process right to be asserted by a self-purported target? I’m just having a hard time reconciling your agreement that actual enemies are fair game with any such right. Help me here please, I want to believe that you aren’t just looking for some way to neuter the AUMF because you disagree with it but that’s about as hard for me to believe as it apparently is for you to believe I think my position to be non-controversial.
February 22, 2010, 1:25 amOrenWithAnE says:
Why don’t you provide a single instance where due process was held to apply to a citizen outside the control of the US — e.g., not a prisoner. Due process has never meant anything to anyone until they are in shackles in front of a judge. It is a restriction on how the law may operate, not on what happens outside the realm of where the law operates.
I’m not talking about Congressional review after the fact, I’m talking about Congress writing better procedures for future attacks. Congress can of course intervene by simply changing the rules for these things (presumably incorporating them into the UCMJ) — the Constitution is crystal clear that Congress has this power.
There are 3 more significant conditions to this power that bear reminding you but I’m too tired to repeat them ad nauseum.
At the very minimum, Boumedienne kicks in and the guy gets Habeas.
You cannot seriously be suggesting that an individual on the loose in Somalia has the same due process rights as a suspect in handcuffs, are you?
And you are ignoring that Due Process has never once in the history of Anglo Saxon law ever constrained a military action (as opposed to a civilian one).
There never was due process of law for those on the wrong end of a bomb. At most, due process for an enemy soldier kicks in when the handcuffs go on.
February 22, 2010, 2:04 amSoronel Haetir says:
I’ve also been intending to add that part of the reason I am opposed to a categorical rule saying “Paris can’t be a battlefield” is that while I agree a missile strike in Paris is a ridiculous idea there are other operations I can see being entirely appropriate, such as a snatch-and-dash. The French would simply have to decide, much like the Germans and Italians are, how they would react to such an event. Forbidding such actions is entirely within Congress’ power but they have chosen not to do so as far as I am aware. And again the ultimate choice is left with the President, and whether it was worth it in the end is left to the voters.
I have another example of how due process does not apply in war. You could lose your property simply by having built where a battle happened to take place. Your house destroyed simply because one commander thought it was blocking his line of sight or because he suspected enemy forces were hiding behind it. Such an action is going to be entirely condoned and you aren’t likely to see any compensation for it.
February 22, 2010, 2:18 amMark Field says:
When a single individual is not on any battlefield and there is no immediate danger from the person. Again, you’ve yet to provide even a scintilla of legal argument in your favor.
The argument I’m making here heavily depends on the specific facts of Oren’s hypothetical. The possible facts constitute a spectrum, and the result could change depending on where we are along that spectrum. Your argument consists in taking a situation which lies far to one end of that spectrum and treating the rule applicable at that particular spot as if it were the rule across the whole spectrum. That’s as illegitimate as insisting that midnight is sunny.
If you can’t understand why it’s wrong to impose the death penalty by presidential fiat on a suspected terrorist, then there’s little more I can say. To state your case is to refute it.
Not necessarily, but it is for purposes of this discussion. It simplifies the issues. As I said above, the law is heavily affected by the facts.
Because my position is not based simply on text (though I’ve emphasized that because the text is clear), but also on historical practice as well. The historical practice demonstrates that the restrictions of Ch. 39 of Magna Charta were never thought by anyone to apply to non-subjects. As I’ve noted, however, even the most despotic English kings didn’t believe they could act the same way towards their own subjects as they did towards foreigners.
Two responses. First, you’re certainly right that this can happen, but you’ve left out the legal rationale for it: the doctrine of necessity. Oren’s hypothetical expressly excludes any application of that doctrine in the particular case. My view of the legal issue would be different if the terms of the hypothetical were.
Second, the person whose house is destroyed in such a case has a claim for compensation under the 5th Amendment. Don’t you think it peculiar that the very same Amendment protects the individual in that case, yet, under your theory, fails to protect him in a much more extreme situation (death v. property loss, necessity v. no necessity)?
February 22, 2010, 10:42 amMark Field says:
Why don’t you provide one where it was held not to apply? In fact, why have you failed to provide any legal authority whatsoever?
The SCOTUS held in Reid v. Covert that the 4th and 5th Amendments apply to US citizens abroad.
Utter nonsense. Just to give an easy example using Roman Polanski, the courts held that he had a due process right to defend a civil suit against him despite his flight from justice. IOW, his very escape from shackles didn’t deprive him of his due process rights.
In any case, your statement assumes the conclusion. The debate here is whether the law (i.e., the Constitution) DOES apply. You can’t just assert that it doesn’t.
No. The amount of process due depends on the specific circumstances of any case; that’s well-established law. But the core principle — that the Executive can’t just go out and kill a citizen on its own say so — applies in many more situations than, say, Miranda warnings.
Then it should be easy for you to give me an example consistent with your hypothetical.
There are hundreds, if not thousands, of examples where enemies of English kings took refuge overseas upon charge of treason. I’m not aware of even a single one in which those persons were assassinated. In every case I know of (and that’s a LOT), they waited until they could get him back in England for trial. In many cases, that was never.
Again, you’re assuming your conclusion. In your hypothetical there’s been no determination by anyone other than the Executive that the person actually IS an enemy soldier.
Can or should we trust the Executive unconditionally? Not unless you believe that it got every case at Gitmo right (in which case I have some houses in CA to sell you at their 2006 prices). And not unless you believe the treason and bill of attainder clauses have no force or effect.
Should we trust the Executive conditionally? Sure, in cases of necessity. But you ruled that out.
February 22, 2010, 11:05 amSoronel Haetir says:
Mark Field,
I am starting to suspect that we simply see the example in incompatible terms.
I see someone planning an attack or aiding those who are planning an attack or at least suspected of doing so, such a person has, as far as I know, always been fair game in war. Even a prior attack with no evidence for future attacks is enough for this standard to be met, it is simply the fortunes of war. The tools appropriate for the task change depending on where the person is but not the fact that they are a legitimate target. Law of war has never, to my knowledge, required that the enemy be subdued rather than killed, it will be practical considerations that tip the scales to one or the other. That mistakes will be made in such determinations doesn’t alter that *some* process* needs to be used, I prefer a process where any mistake militates in favor of eliminating suspected terrorists.
As far despotic kings, what you say is true so long as those subjects stay within the borders. I’m not aware of any traditional legal principals that require care to be taken towards subjects mixed with the enemy forces, at least before capture. I know you are going to respond to this with a claim that we are not so clearly at war as that or that the US citizen target is not so clearly mixed up with the enemy as to warrant such treatment now, that is part of how we don’t see the hypothetical in the same terms.
So long as we continue to be stuck with incompatible framing neither of us is going to convince the other of anything, not even that we each hold our position in good faith.
February 22, 2010, 12:06 pmMark Field says:
What I said is also true even when the accused traitors went beyond the borders.
As I understand the hypothetical, it involves
1. A US citizen
2. Away from any battlefield, and
3. Not posing any immediate risk to the US.
If you change that hypothetical to put the person in the middle of an enemy army, then my analysis might differ (though note that Lincoln’s conclusion didn’t differ, though the legal basis for it did).
I’m willing to believe you hold your view in good faith; hell, even John Yoo may hold his insane views in good faith. I think you are, like Rick when it came to the waters of Casablanca, misinformed.
February 22, 2010, 12:58 pmOrenNotKerr says:
The death sentence is carried out on prisoners who are already behind bars. That is quite the distinction.
They did, however, kill quite a number of their subjects during the various civil wars (without a warrant, of course).
I cited Quirin, you didn’t like it and believe it was wrongly decided. That’s the closest we got.
February 22, 2010, 4:11 pmSoronel Haetir says:
I see the argument as being very much about #3 and a little about #2. What is “immediate”? Does the person actually have to be traveling to where they intend to detonate a bomb? How about making the bomb, gathering the precursor materials? Attending a terrorist training camp with no set target in mind? How about helping others travel to do any of those things or escape a prior attack in an underground railroad sort of way? How about just being the person who helps get some of the chemicals but never see a finished bomb?Depending on your definition of “immediate” only the first might count or they might well all qualify.
And again where is the battlefield when you are faced with an enemy that intentionally hides among civilians of all stripes? Someone could well be hiding in Paris or Hamburg doing most of the tasks outlined above. Just because a drone missile attack isn’t necessary or appropriate in either of those places doesn’t make them any less a battlefield, it simply changes the correct method of attack.
I do agree that once someone is in custody then due process kicks in. And the less like a traditional battlefield the location of capture the stronger the showing that needs to be made.
February 22, 2010, 4:37 pmMark Field says:
I doubt the dead man sees much distinction. Dead is dead.
Yes, but mostly in battle. If you have an example of a king ordering a hit on someone, I’m happy to hear it.*
The defendants in Quirin were given a trial. It was a trial before a military commission, but it was a trial. I can see how that helps my side of the argument; I can’t see how it helps yours.
From Reid v. Covert:
“At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. …
The language of Art. III, 2 manifests that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. …
The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there. …
The Government urges that the concept “in the field” should be broadened to reach dependents accompanying the military forces overseas under the conditions of world tension which exist at the present time. It points out how the “war powers” include authority to prepare defenses and to establish our military forces in defensive posture about the world. While we recognize that the “war powers” of the Congress and the Executive are broad, we reject the Government’s argument that present threats to peace permit military trial of civilians accompanying the armed forces overseas in an area where no actual hostilities are under way. The exigencies which have required military rule on the battlefront are not present in areas where no conflict exists. Military trial of civilians “in the field” is an extraordinary jurisdiction and it should not be expanded at the expense of the Bill of Rights.”
Oddly enough, the words you bolded aren’t there.
*No, Thomas a Becket doesn’t count.
February 22, 2010, 4:41 pmMark Field says:
What the word “immediate” did in the hypothetical (actually, the words “no immediate”) was to remove the case from the doctrine of necessity/self-defense. I have already agreed that in cases of necessity/self-defense, different results can be justified. This left us with a clear question of the scope of presidential power and the extent to which the Constitution circumscribes that power. Note, in this regard, my quotes from Reid v. Covert, above.
Again, you’re fudging the terms of the hypothetical. The terms were that the person was away from the battlefield. This means I don’t need to worry about defining the battlefield, so that the issue of presidential power is the only one at stake.
Nevertheless, I’ve answered your question about the “battlefield” previously. The term is flexible, but it’s not unlimited. In the same way, the exact moment of dawn is subject to reasonable disagreement, but it’s not sunny at midnight. Paris and Hamburg are not battlefields.
February 22, 2010, 4:49 pmSoronel Haetir says:
Ah, finally. You are simply playing evasion by definition rather than actual answer.
Somewhat like the question I’ve heard prosecutors ask “If a single witness were to convince you that the defendant is guilty beyond a reasonable doubt would you be able to vote for conviction?” The simple and quick answer is “yes”, it just wouldn’t be very likely that a single witness could accomplish that task.
In the same way by simply defining that the person is away from a battlefield you ignore the reality that the person is in fact on a battlefield. You are playing a similar game with immediacy. If I were to accept that the person is away from a battlefield then sure I could accept that they aren’t a legitimate target. But a belligerent does not have the option of going on and off a battlefield, at least not without suing for terms. Once someone decides to enter the fray they remain a legitimate target. In the past there simply hasn’t been the ability to pick and choose targets with such refinement. Just because armies would disengage it does not follow that the enemy was off limits.
Your definitions are much like the comment in the Amnesty International thread about how many universal human rights types want to define the terms of international law in such a way that it is impossible for a western country to respond to any asymmetrical attack. I recognize the game but choose not to play it.
February 22, 2010, 5:19 pmOrenNotKerr says:
Of course he does. In the former instance, he pleads to be allowed the rest of his life in jail, in the latter, he is (essentially) pleading the right to continue to war against us.
Here there was no exigency since Covert was already behind bars. There is manifest exigency in an enemy combatant that is on the loose currently engaged in planning or supporting attacks against the US.
You might want to ask the Irish about that …
February 22, 2010, 6:22 pmMark Field says:
Wait a minute. I didn’t come up with this hypothetical. It’s rather unfair of you to accuse me of setting the rules when someone else did so.
Sure they do. It’s one of the commonest events in war. Soldiers desert; they go home; they wander away; they disappear into the civilian population.
Again, I didn’t set the terms of this hypothetical. I’m not playing a game, I’m going with what I was given.
Main Entry: exigent !ek-su-junt
Pronunciation: ˈek-sə-jənt
Function: adjective
Etymology: Latin exigent-, exigens, present participle of exigere to demand – More at – exact
Date: 1629
Results
1. requiring immediate aid or action – ∼ circumstances *
Looks the same as “immediate” to me, and you expressly ruled that out. I’ve repeatedly acknowledged that if there is an immediate threat (or an exigent one, if you now like that synonym better), then the doctrine of necessity/self-defense could apply.
Hey, I have substantial Irish ancestry. I’m fully aware of that history. But it isn’t really relevant to what we’re talking about.
*I left out the second definition, which seems irrelevant.
February 22, 2010, 7:28 pmAndrew says:
Hi – thanks for the post. I never know what I will come across when I scroll these blogs. But just wanted to let you know I really liked yours. Keep it up.
Andrew
March 12, 2010, 10:30 pm