Obama’s executions without judicial review

Are they indeed without judicial review? Or is it just that the review is secret?

 

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Considering that Holder said, of the targeted killings, "due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process," we can assume there is no judicial process involved.

He did say that the executive branch reviews the evidence, and points out (no doubt correctly) that decisions often have to be made swiftly, even in real time, to kill a particular target.

He said they do keep specific Congressmembers apprised of what actions were taken.

http://www.mainjustice.com/2012/03/05/prepared-remarks-holders-address-at-northwestern-university/

 

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Only a matter of time before the same practice is used on US soil.

 

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Why so glum?

 

But of course it's not "just a matter of time" before the U.S. military does any such thing (though it is only a matter of time before law enforcement uses lethal force).

This specific case of militarily conducted targeted killings so far has been limited to cases where "capture is not feasible" and only against targets that have a "definite military value" according to Holder. It's possible that it could happen in the U.S. but it's not inevitable.

 

More than reasonable for a trained officer to use judgment re level of force in a situation where an officer or the public is in imminent danger. However, this issue is around legalising arbitrary murder - and protecting those that authorise such with no oversight whatsoever.

There are countless individuals who pose a threat. Without due process anyone can end up on a threat hit list - including political opponents and those critical of special interest groups. To imagine that abuse of this legislation can not occur is naive.

If this is in the interest of national security - lets at least present said plots and plotters for scrutiny via a legal oversight & accountability process.

I concur.

I disagree - this is for another discussion.

Exactly.

Yes, if it can be proven that them is a clear, credible and legitimate threat to an exact definition (to be precisely determined) of "national security".

The Constitution forbids this "terrifying power". And yet it has come to pass.

Which is the duty of Congress and without such we engage in despotism.

 

How do you know that?

Thats what they say. Note, the definition of "terrorist" is infinitely flexible.

Thats a bit like saying insider trading is policed by insider traders.

 

Not true, the Congress still has the ability to Impeach.

And clearly any of those abuses would result in impeachment or worse.

Nope, war and terrorism don't lend themselves to the drawn out process of judicial review which is structured around having the suspect in custody.

 

As Congress *is* informed (it's not a huge secret), and the order comes after a thorough review within the Executive branch (and only when traditional methods of capturing the target are found to be infeasable), Eric Holder disagrees.

And if they go wild and start bumping off "possible" threats without ample evidence, or even if they start killing people in the thousands, I might take your point more to heart. Taking that into account, your fears are not directly relevant what has been happening, except to the extent you see the prior killings as the start the slippery slope. If we find ourselves actually on the lower parts of that slope you envision, I'd agree with you, but there's no evidence that is where we're headed that I can see.

Again, this has been used only when other methods wouldn't have worked well and only when they saw a significant threat that they felt was well founded enough to consider the action.

You are free to disagree with their assessment, and as I said that the system would be even better of Congress made allowances for an ex parte secret proceeding before a judge prior to taking the action in such cases. But that the current system could be improved doesn't mean the current system is better than the alternative.

It's perfectly fine to say that one doesn't trust the executive with this power...but trust is a subjective matter.

We should (again, I think, on an ex parte basis and in secret), but Congress has not (and I suspect will not), so what do we do in the face of a Congress that doesn't want to be accountable? I think States and localities were right to set up review boards and internal affairs divisions to investigate cases where police killed suspects...but that does mean I oppose the police's use of deadly force in locations where such oversight does not exist.

It's not unreasonable to assert that they should not have such power...but it seems to me that in both military and law enforcement situations there are times when the use of deadly force is not objectionable...even when you know that you might not have all the facts. As long as the intended target has military value, and there are no better methods available for neutralizing the threat, imo some deference has to be given to the people we elect to run the military.

If they abuse it, and if Congress refuses to act in the face of the abuse, we can vote against the politicians responsible in the future.

OTOH, I can see why some people lean the other way (say, pacifists), but my intuition on what's right is very different from theirs.

The military often acts on partial or even incorrect intelligence. Militaries throughout the ages always have, and people (sometimes innocent people) have died as a result. We have been known to bombs targets thinking they had military value and discovered we just bombed a wedding or an aspirin factory. The military simply cannot get a judicial decree every time they want to engage a target, so there has to be some question of when the courts must be consulted (and it had better be a bright line test).

Ordinarily, the rules of engagement are set by the executive. Congress has ways of intervening in that process *if they want to*, but generally do not. The Courts historically defer to the political branches on those questions.

This is the same sort of situation. The executive has set the rules of engagement for these targeted killing scenarios, and let Congress know what those rules are. Congress has the power to step in and place additional restrictions on things if they want (within limits that are too complicated to go into...as due to the President being the sole commander-in-chief there are lines Congress cannot cross).

The possibility of Congressional action is the check and the balance here. If the Attorney General went to court tomorrow to get a ruling on the next planned targeted killing, the judge wouldn't even have jurisdiction to hear the matter. The courts do not issue "advisory opinions" and Congress has set up no framework for them to adjudicate the matter.

I do not believe the Constitution does. In fact, that's the question, isn't it? What is "due process" in the case of military actions taken overseas against individuals?

In England, they also have due process rights, and it's always been understood to mean "any process the law expressly requires" and that's it. So if the law says you get a trial, then you get a trial...but if the law is silent then you don't. U.S. law diverged from that when the courts decided that there are certain minimum requirements that must be met, even if the law is silent or worse, if the law expressly says that minimum process is not required.

But there are and always have been exceptions to that. Military actions and certain law enforcement actions are among the most obvious exceptions. The court hasn't really death with the question of what the due process clause means in this context (and I sincerely doubt they wouldn't defer to the commander-in-chief clause). The fifth amendment, covers all "persons" after all. If you took it literally and didn't allow a military exception, it seems to say that our military cannot ever kill anyone absent "due process." So that exception is clearly necessary. But who decides who is a military target? If the answer were "judges" and not the President, then the military would *still* have to go to court prior to ever firing a bullet at a new enemy (again, no "advisory opinions" so the courts can't give blanket authority to kill "every enemy soldier" or anything like that, it would have to be case by case, and that's a Constitutional issue under the "Case or Controversy Clause").

Another exception is "collateral damage", i.e. innocents inadvertently killed in taking out the principal target. No judicial process is required before taking an action that deprives them of their lives.

But let's assume these individuals who are targeted are "persons," and the President can't designate them "military targets" to take advantage of the exception, then you get into the weeds of "what is due process in this case?" Context matters, and always has. If this were a trial, that would be one thing, but this is (I hope you'd agree) at the very least a quasi-military / quasi-foreign relations issue. Courts generally defer to the executive on military and foreign relations matters unless there is a law enacted by Congress that constrains the President. There isn't, and Congress is unlikely to pass one.

There is also the Bill of Attainder Clause, but that only applies to Congress declaring that someone is to be executed, not the executive.

I disagree. Congress is unlikely to act because of both political cowardice *and* (just as important) the fact that the power isn't being egregiously abused (I would say "not being abused at all", but I respect that you disagree).

I guarantee you that if Obama uses a drone strike to take out Romney, Santorum, Gingrich and Ron Paul because "their plans for Iran are dangerous", Congress will act. (Just kidding.) If the power is used against someone where quite obviously the evidence was shaky, or the targeting motivated by non-military considerations, Congress is very likely to at least have a vigorous debate to weigh the evidence for itself. Congress can and does sometime stand up to Presidents who seem to overreach (like FDR and the court packing scheme).

In the meantime, you are free to vote Obama out of office, or to vote for Congressmen and women who are just as outraged as you are, to bring the matter up in the next legislative session.

Checks and balances remain, and despotism is averted.

 

The process remains a closed system beyond independent scrutiny. Determining what is feasible/unfeasible is relegated to the same body ordering the hit - no due process or oversight beyond a select few insiders.

Yes, that is a primary concern. The slippery slope is well worn via a series of precedents that have evolved via fear based/knee-jerk reactions initiated to protect the American people and which has now resulted in the legitimising of murder/assassination of Americans (and others).

The slope includes illegitimate surveillance, rendition, torture, detention without trail, and the clearly inhumane treatment of individuals such as Bradley Manning. We are expected to believe that a process will not be abused when we have clear evidence of various nefarious processes occurring beyond legal accountability. There is a distinct trend towards more and more morally questionable actions.

To touch on a non American instance - Bin Laden could have been captured alive no? Gaddafi could have been protected, no? We are seeing barbarous activities celebrated in the name of revenge justice.

On that note, when I hear the inarticulate babbling from the current mob of Presidential candidates I cringe.

All reasonable on the local level and without observable broader agendas which of course is the very essence of an increasingly secretive and autocratic government.

Yes, no question - standard protocol on the ground, albeit without neutralization having to be legislatively legitimised to protect parties from present or future prosecutions.

Hypothetically, yes.

There is no legislation that absolves the military from war crimes.

I appreciate your deeper insights here, points that I may well bypass in drawing conclusions. Perfectly reasonable, particularly in terms of conventional warfare where war is declared and the sides are clearly demarcated. I fear under the present ill defined "war on terror" where the enemy is indistinct - the above illustrates an entirely new form of legality. And one that the Constitution specifically excludes - a government beholden to the people, not a government who can arbitrarily designate a person - US citizens, as an enemy and summarily execute such. Thus is the hallmarks of autocracy - a organ beyond the reach of the law.

This is a huge area to explore.

The Magna Carta, Fifth Amendment, Habeas Corpus, etc are being slowly dismantled at our peril.

The key is - "in time of War or public danger".

IMO collateral damage is unacceptable - particularly when the benefits of the action that sustains collateral damage is even slightly questionable.

Yes of course - very gray area and clearly in the interest of national security. I believe a detailed public debate on what exactly constitutes national security and what constitutes legitimate danger to national security and thus defensible, is way overdue. Is Afghanistan, AQ, An Other really a legitimate threat to US security?

Thus the slippery slope.

Perfectly reasonable. I think my entire issue rests on the fact that in this day and age we are enacting legislation that undermines something as civilizationally enshrined as the Magna Carta.

He he. Hope he misses Ron Paul. Quite agree, I utterly doubt that eventuality. G_d forbid.

Again, I tend to agree. Still worrying that this was passed so seamlessly.

Of course.

Unless the checks and balances are so subtly and steadily eroded and we wake up in 1984.

 

And since this is a military operation, of which Obama is Commander in Chief, that's exactly what you would expect.

Do you really think the Military should run it's targeting operations by Congress just because one of the military targets might have a US passport?

If we did, our targets would use that for effective defense against air strikes.

Which is what you want to happen because clearly you want to slow down the Military's operations against AQ.

 

There is no legitimate military threat against the USA.

 

Really?

What makes you think Al Qaeda is now suddenly incapable of carrying out attacks in the USA?

 

These potential, limited and isolated attacks are called "terrorist threats" - they bear no resemblance to a legitimate "military threat" which one can define as a clear and imminent threat of bombardment and/or invasion by a foreign entity against the USA.

As opposed to - Iran faces a realistic "military threat" from Israel and USNATO.

 

Why didn't al-alwaki submit to a criminal trial, instead of risk execution without trial? He knew he was wanted.

 

Untrue.

Your definition of Al Qaeda's capability as limited simply ignores the reality of asymmetric warfare and it's potential scope.

Indeed one could claim that 9/11 was a series of limited isolated attacks, but that doesn't mean that they weren't devastating to the country.

So yes, Al Qaeda indeed does have the ability to invade and bombard the US and it's oversea's assets and has done so in the past, repeatedly, causing grave destruction.

Since that time they have not renounced their intentions to again strike at the US (and our allies) and there is no credible information that suggests they still couldn't pull off another very damaging attack in the future.

And foreign based terrorism is beyond the ability of our domestic law enforcement operations and so our military is indeed the appropriate force to use to bring an end to Al-Qaeda.

Indeed they do.
And for good reason.

 

He most likely did not think he would get hit, and I assume he knew it would be execution either way. I am not disputing his guilt.

 

Could one of you link the original document (i.e. the policy) so that people may decide for themselves?

 

There is no written policy, at least not a declassified one. The most we have is knowledge that actual strikes targeting individuals have occurred, that U.S. citizens are not considered "off limits" for targeting, Eric Holder's speech (which is, again, here) , and speculation by many many others.

It is merely an extension of the President's powers as Commander-in-Chief, legally speaking, the Congressional grant of power in 2001 (which has not been withdrawn) which gives the President the power to:

http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html

Which would seem to allow broad authorization to go after al Qaeda and the Taliban. It's not unlimited (hence they needed a second resolution in 2002 to authorize the war in Iraq), but it clearly contemplated going after al Qaeda (and that means going after the people who are a part of and vital to the operations of al Qaeda).

The outrage is that we have a mission whose goal it is to kill a specific al Qaeda target. If our missions were to kill al Qaeda operatives generally, that would apparently be A-OK. (Or, if it's not okay, then someone will need to explain to me how, legally, any war can be fought, ever, without each military unit having a judge and lawyers following them around, ready to hold hearings at a moments notice).

The logic of the opponents (which is defensible, though I disagree with it) is that if the U.S. had a chance to kill Hitler in 1942, it would have been illegal to do so, because that would be "murder."

Since we can and do target high profile individuals in wars, and even targeted Castro in a non-war, the practice is actually long-standing. The real objection, I think is that some people feel terrorism is really just a "crime" and not an "act of war", and you can't target a criminal's associates in this way. Legally speaking though, Congress gave the President (Bush at the time) the authorization to treat this as a war, and that means its participants have the rights that the laws of war allow, not every right a criminal proceeding would allow.

The fix here is to petition Congress to circumscribe the President's authority, not for the courts to vastly overstep theirs and start forbidding duly authorized military operations ordered by the Commander in Chief.

In the absence of some law limiting Presidential discretion, I don't see the legal distinction between the President saying "Kill those terrorists in that particular building" and "Kill that particular terrorist in that particular building." In either case, the President could be mistaken about whether the people to be killed are in fact terrorists, so the likelihood of a mistake being made can't be the distinction. People die in wars, and sometimes it's blameless people who die because a bomb gets dropped on the wrong target.

 

Oh ok, I get it now. This is just another thread on how horrible America is for killing enemy combantants (U.S. citizens or not) on foreign soil without a trial. Which is bull shit whining in your part. Would you have been against us killing a Russian defector durring the cold war or a Nazi spy durring WW2 just because the were American citizens? Fuck no you wouldn't have so STFU and stop crying about nothing. They are NOT doing this on Amreican soil and they are not doing it without evidence, and just because they don't show they evidence to YOU (a nobody, doing nothing) doen't mean its not there.