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(NBC News)   NBC obtains formerly secret memo that lays out the case why the government can assassinate some of its own citizens; with link to actual memo   (openchannel.nbcnews.com) divider line 478
    More: Interesting, NBC News, Justice Department, legal case, Michael Isikoff, Americans, Office of Legal Counsel, targeted killings, right of self-defense  
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12126 clicks; posted to Main » on 05 Feb 2013 at 12:51 AM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-02-04 10:25:09 PM  
I have no words.
 
2013-02-04 10:28:16 PM  
1. It is not "assassination"
2. No one biatched at Lincoln when the American troops killed the rebelling Confederacy soldiers. 500k Americans died in that war.
3. If you are in active treason against the United States and planning attacks on them, you make yourself into a military target.
 
2013-02-04 10:29:52 PM  
I gotta be honest - I don't get why this is new. Hasnt this been the known position of the US government for years?
 
2013-02-04 10:30:51 PM  
If this is the memo I'm thinking of, the guy who wrote a lot of this, Marty Lederman, is actually a very nice guy who teaches at my law school. I've chatted with him.

It's very awkward chatting with someone who wrote something like this, when you're not sure if he even believes what he wrote.
 
2013-02-04 10:35:42 PM  

cman: 1. It is not "assassination"
2. No one biatched at Lincoln when the American troops killed the rebelling Confederacy soldiers. 500k Americans died in that war.
3. If you are in active treason against the United States and planning attacks on them, you make yourself into a military target.


I think the language of it makes your #3 not necessarily a requirement.
 
2013-02-04 10:38:08 PM  

cman: 1. It is not "assassination"
2. No one biatched at Lincoln when the American troops killed the rebelling Confederacy soldiers. 500k Americans died in that war.
3. If you are in active treason against the United States and planning attacks on them, you make yourself into a military target.


problem is...the definition of treason gets tossed around rather casually these days.  that's what worries me - that a US president will at some point decide that someone he doesn't like is a de facto terrorist and try to off 'em, legal definition be damned.
 
2013-02-04 10:54:15 PM  
Because once you take up arms against the United States or any nation for that matter, you forfeit your citizenship?

When this anti-war pussies going to realize that sometimes people need to die, and most the time innocent people dying is worth the cost.
 
2013-02-04 11:05:41 PM  
Well it's a lot easier than setting up a fake plane crash in Bermuda.  Oh wait, that was the Qumari Defense Minister, he wasn't a US citizen.
 
2013-02-04 11:08:13 PM  
 Having just finished reading it, it's clearly the Awlaki memo. Same three-part test that was leaked to the media: 1) high-ranking U.S. official declares the person an imminent threat to the United States, 2) unable to capture the person, and 3) conduct undertaken within laws of war. The legal justification is... shaky, and mostly argumentative. The authors rest their justification almost entirely on Hamdi, Mathews v. Eldridge, ex parte Quirin, and a "public authority exception" to general laws, and also, on the idea that it's war.
 
2013-02-04 11:12:05 PM  
Someone please get Her Winkyness to tweet why the MSM Mainstream Media is apparently asking tougher questions of Obama's administration than her former employer ever managed to?
 
2013-02-04 11:19:32 PM  
 
2013-02-04 11:20:04 PM  
So, I'm generally a libby lib-lib, but in this case I don't have much problem with the government's finding. Where, exactly, is people's problem with this?

In order to help me clarify, tell me which, if any, of the following scenarios are problematic:

If there's an Al Qaida base in Afghanistan, do you have a problem with the US military launching a missile to blow up the people inside?

If there is an Al Qaida base in Yemen, do you have a problem with the US military launching a missile to blow up the people inside?

If there an Al Qaida base in Afghanistan, and one of the people in the building is American, do you have a problem with the US military launching a missile to blow up the people inside?

If there is an Al Qaida base in Yemen, and one of the people in the building is American, do you have a problem with the US military launching a missile to blow up the people inside?

To me these are all roughly equivalent scenarios, and I do not have a problem with any of them. I may have a problem with a specific judgement call the President may make, but not with the general right of the President to make it. Being American doesn't make you immune from being a target if you side with the enemy in a battle (IMHO).
 
2013-02-04 11:29:00 PM  
If you don't want to get blown up, don't engage in terrorist activities.

If you don't blow yourself up Uncle Sam will do it for you.
 
2013-02-04 11:35:11 PM  

nmrsnr: So, I'm generally a libby lib-lib, but in this case I don't have much problem with the government's finding. Where, exactly, is people's problem with this?

In order to help me clarify, tell me which, if any, of the following scenarios are problematic:

If there's an Al Qaida base in Afghanistan, do you have a problem with the US military launching a missile to blow up the people inside?

If there is an Al Qaida base in Yemen, do you have a problem with the US military launching a missile to blow up the people inside?

If there an Al Qaida base in Afghanistan, and one of the people in the building is American, do you have a problem with the US military launching a missile to blow up the people inside?

If there is an Al Qaida base in Yemen, and one of the people in the building is American, do you have a problem with the US military launching a missile to blow up the people inside?

To me these are all roughly equivalent scenarios, and I do not have a problem with any of them. I may have a problem with a specific judgement call the President may make, but not with the general right of the President to make it. Being American doesn't make you immune from being a target if you side with the enemy in a battle (IMHO).


Except none of what you describe is the scenario. The scenario proposed by the memo is:

"If there is an Al Qaida base in Yemen, and we want to kill the American citizen in it, is it okay if we target that American citizen?"
 
2013-02-04 11:39:05 PM  
are we still droning on about this crap?
 
2013-02-04 11:42:25 PM  

Rincewind53: "If there is an Al Qaida base in Yemen, and we want to kill the American citizen in it, is it okay if we target that American citizen?"


What is the distinction between this and my 4th scenario? Is it okay if the American is collateral damage as opposed to being a target? What if the American wasn't the only target?

How about these:

If there an Al Qaida base in Afghanistan, and the only person in the building is American, do you have a problem with the US military launching a missile to blow up the person inside?

If there is an Al Qaida base in Yemen, and the only person inside, do you have a problem with the US military launching a missile to blow up the person inside?
 
2013-02-04 11:43:01 PM  

zedster: are we still droning on about this crap?


We're pretty much on autopilot at this point.
 
2013-02-04 11:58:18 PM  
crypticsatellite: I have no words.


Sounds like wise strategy for avoiding drone attacks, Citizen.
 
2013-02-04 11:58:58 PM  

nmrsnr: Is it okay if the American is collateral damage as opposed to being a target? What if the American wasn't the only target?


That's what the central question is: can the government target an American citizen? When the American is unintentional collateral damage, the law is pretty clear that's okay.
 
2013-02-05 12:01:19 AM  
ok, and this is controversial because???

I don't much care what kind of intel we have.  If you're in league with these asswits, you deserve to get blown up.
 
2013-02-05 12:02:21 AM  

Rincewind53: nmrsnr: Is it okay if the American is collateral damage as opposed to being a target? What if the American wasn't the only target?

That's what the central question is: can the government target an American citizen? When the American is unintentional collateral damage, the law is pretty clear that's okay.


We already have - see, War, Civil.  Also, Texas, Waco.
 
2013-02-05 12:17:26 AM  

WTF Indeed: Because once you take up arms against the United States or any nation for that matter, you forfeit your citizenship?


Prove it.
 
2013-02-05 12:19:11 AM  

nmrsnr: zedster: are we still droning on about this crap?

We're pretty much on autopilot at this point.


I find myself unmanned by these conversations.
 
2013-02-05 12:19:28 AM  

Grand_Moff_Joseph: Rincewind53: nmrsnr: Is it okay if the American is collateral damage as opposed to being a target? What if the American wasn't the only target?

That's what the central question is: can the government target an American citizen? When the American is unintentional collateral damage, the law is pretty clear that's okay.

We already have - see, War, Civil.  Also, Texas, Waco.


Neither of those examples relates to the question here, which is about targeted killings of American citizens, without trial. The Civil War was a clearly defined war, where killings occurred as they normally do in war; face to face, between uniformed men. Waco was clearly not deliberate targeted killings without trial.
 
2013-02-05 12:20:28 AM  

Grand_Moff_Joseph: ok, and this is controversial because???

I don't much care what kind of intel we have.  If you're in league with these asswits, you deserve to get blown up.


One of the American citizens in question made the horrible crime of creating YouTube videos. Clearly he deserved the death sentence.
 
2013-02-05 12:20:50 AM  

GAT_00: WTF Indeed: Because once you take up arms against the United States or any nation for that matter, you forfeit your citizenship?

Prove it.


Well, pull a gun on a cop or armed soldier.

The law is people who obey it. Being armed in a war zone makes you fair game.
 
2013-02-05 12:22:56 AM  

Rincewind53: Neither of those examples relates to the question here, which is about targeted killings of American citizens, without trial. The Civil War was a clearly defined war, where killings occurred as they normally do in war; face to face, between uniformed men. Waco was clearly not deliberate targeted killings without trial.


What about the Whiskey Rebellion?
 
2013-02-05 12:24:27 AM  

Rincewind53: nmrsnr: Is it okay if the American is collateral damage as opposed to being a target? What if the American wasn't the only target?

That's what the central question is: can the government target an American citizen? When the American is unintentional collateral damage, the law is pretty clear that's okay.


Okay, so what about the Al Qaida base in Afghanistan with just the American in it? Okay or not? I don't see how being an American citizen materially changes whether or not the U.S. Government has the right to blow you up or not. Either they have good and just cause to order your death without trial, or they don't, where you were born really doesn't seem to make the slightest bit of difference.
 
2013-02-05 12:25:53 AM  

zedster: What about the Whiskey Rebellion?


An armed response to a rebellion is not the deliberate targeted killing of one person.

From Wiki: Before troops could be raised, the Militia Act of 1792 required a justice of the United States Supreme Court to certify that law enforcement was beyond the control of local authorities. On August 4, 1794, Justice James Wilson delivered his opinion that western Pennsylvania was in a state of rebellion.[80] On August 7, Washington issued a presidential proclamation announcing, with "the deepest regret", that the militia would be called out to suppress the rebellion. He commanded insurgents in western Pennsylvania to disperse by September 1.[81]
 
2013-02-05 12:25:57 AM  
www.personal.psu.edu

The Republican Party that cried "Wolf" has done it once too often. No one will care now. Thanks guys. You were too busy crapping over birth certificates, criticism of farking Nazis, fathering only girls, arugula, dijon mustard, Benghazi and President Obama's Magical Time Machine. Now there is a real job to do calling people on the carpet for a serious "Imperial Presidency" issue that needs to be hashed out in public discourse. And you're completely discredited. Thanks, ASSHOLES.
 
2013-02-05 12:28:07 AM  

cman: 1. It is not "assassination"
2. No one biatched at Lincoln when the American troops killed the rebelling Confederacy soldiers. 500k Americans died in that war.
3. If you are in active treason against the United States and planning attacks on them, you make yourself into a military target.


Even if you trust this President, what about the next?  Look at how easily Bush and the neocons took down the institutional barriers to government power that had been built up over decades.  It's not hard to envision a future President ordering a drone strike on a target within America in the name of national security.  We have to be very careful at establishing precedent, because once that power is granted it's almost impossible to take it away.
 
2013-02-05 12:29:07 AM  

Somacandra: [www.personal.psu.edu image 226x250]

The Republican Party that cried "Wolf" has done it once too often. No one will care now. Thanks guys. You were too busy crapping over birth certificates, criticism of farking Nazis, fathering only girls, arugula, dijon mustard, Benghazi and President Obama's Magical Time Machine. Now there is a real job to do calling people on the carpet for a serious "Imperial Presidency" issue that needs to be hashed out in public discourse. And you're completely discredited. Thanks, ASSHOLES.


How about what's left of the left steps up and collectively says "This is wrong" for a change.  The President doesn't come close to having the authority to execute American citizens without trial.
 
2013-02-05 12:32:30 AM  

Rincewind53: zedster: What about the Whiskey Rebellion?

An armed response to a rebellion is not the deliberate targeted killing of one person.

From Wiki: Before troops could be raised, the Militia Act of 1792 required a justice of the United States Supreme Court to certify that law enforcement was beyond the control of local authorities. On August 4, 1794, Justice James Wilson delivered his opinion that western Pennsylvania was in a state of rebellion.[80] On August 7, Washington issued a presidential proclamation announcing, with "the deepest regret", that the militia would be called out to suppress the rebellion. He commanded insurgents in western Pennsylvania to disperse by September 1.[81]


my bad, I was thinking of Shays' Rebellion but looking back that was pre-constitution

//always finds it funny Tea Party identifies with the Boston Tea Party and not Shays' or Whiskey Rebellion which is more in line with their issues since they do have representation
 
2013-02-05 12:32:43 AM  

nmrsnr: Rincewind53: nmrsnr: Is it okay if the American is collateral damage as opposed to being a target? What if the American wasn't the only target?

That's what the central question is: can the government target an American citizen? When the American is unintentional collateral damage, the law is pretty clear that's okay.

Okay, so what about the Al Qaida base in Afghanistan with just the American in it? Okay or not? I don't see how being an American citizen materially changes whether or not the U.S. Government has the right to blow you up or not. Either they have good and just cause to order your death without trial, or they don't, where you were born really doesn't seem to make the slightest bit of difference.


Well, it's about the Due Process clause of the Constitution, which says "...nor shall any person... be deprived of life, liberty, or property, without due process of law."

So any time the United States government deprives an American citizen of life, they need to follow the due process of the law, and many people believe that that would require a trial, and that targeted killings of American citizens outside of immediate battlefield is simply not allowed under the Constitution. This memo argues otherwise, and pegs the "Due Process" on a three part test, allowing such targeted killings against senior-level Al-Qaeda officials when "(1) an informed, high-level official of the United States government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles."

Then, later in the memo, the author essentially says (and I'm paraphrasing here) "Well, of course, imminent doesn't mean imminent in the sense that the attack is going to occur in the next day or so, but imminent means simply that the Al-Qaeda official is actively plotting against the United States." Which means that by their logic, an informed high-level official of the United States can simply declare that an American citizen is actively plotting violent attack against the United States and have that person killed, without trial, and without judicial review, so long as capture is not feasible.

And some of us have a bit of a problem with that.
 
2013-02-05 12:33:49 AM  

Mentat: Even if you trust this President, what about the next?  Look at how easily Bush and the neocons took down the institutional barriers to government power that had been built up over decades.  It's not hard to envision a future President ordering a drone strike on a target within America in the name of national security.  We have to be very careful at establishing precedent, because once that power is granted it's almost impossible to take it away.


It's not about trust. This isn't a blanket license to kill. The three prong test may be broad, but not unlimited. 1) imminent threat, pretty useless, but to even reach this point, Congress needs to pass an Authorized Use of Military Force for the President to even consider a target for striking. 2) Feasability, basically limitiing it only to places where the US doesn't have jurisdiction and doesn't have the cooperation of a friendly government, so we won't be sending drones into Germany. 3) The strike has to be otherwise in keeping with the laws of war, so no undue collateral damage, etc.

You may disagree with the President having this ability, but it's really not that the president can order a drone strike your house because he doesn't like you. It is significantly more strict than that.
 
2013-02-05 12:35:23 AM  

Rincewind53: "If there is an Al Qaida base in Yemen, and we want to kill the American citizen in it, is it okay if we target that American citizen?"


It was a convoy in transit, not a static base. And since the Yemeni legal system had previously dictated that he be captured dead or alive, I wonder what the domestic reaction would have been if the Yemenis had got to him first.
 
2013-02-05 12:35:54 AM  

Rincewind53: And some of us have a bit of a problem with that.


But not if the dude isn't American? Then it's totally okay?
 
2013-02-05 12:37:11 AM  

Somacandra: It was a convoy in transit, not a static base.


I think we both knew that, he was responding to my hypothetical, but do you believe that the distinction that it was a convoy to be material?
 
2013-02-05 12:38:01 AM  

GAT_00: How about what's left of the left steps up and collectively says "This is wrong" for a change.


I'll get right on the horn to Noam Chomsky and Edward S. Herman about that. I'm sure this will all be news to them.
 
2013-02-05 12:41:21 AM  

nmrsnr: But not if the dude isn't American? Then it's totally okay


No. It takes a rather deliberately obtuse reading of my post on the Constitutional issues involved with targeted killings of Americans to imply that I'm totally okay with the targeted killings of non-Americans. It's just that the targeted killings of non-Americans does not raise the same Due Process issues.

Somacandra: It was a convoy in transit, not a static base. And since the Yemeni legal system had previously dictated that he be captured dead or alive, I wonder what the domestic reaction would have been if the Yemenis had got to him first.


I know, but I was using his series of examples. And the Yemeni legal system's dictate isn't really relevant here, since this is entirely about America's actions. Incidentally, we have actually accidentally killed two American citizens in drone strikes: Kamal Derwish in 2002, and Samir Khan at the same time we got Awlaki. Both of those were collateral damage and not targeted killings, and so there has been much less attention paid to them, even though the actual cause of death is identical (death by predator drone).
 
2013-02-05 12:41:42 AM  

Mentat: cman: 1. It is not "assassination"
2. No one biatched at Lincoln when the American troops killed the rebelling Confederacy soldiers. 500k Americans died in that war.
3. If you are in active treason against the United States and planning attacks on them, you make yourself into a military target.

Even if you trust this President, what about the next?  Look at how easily Bush and the neocons took down the institutional barriers to government power that had been built up over decades.  It's not hard to envision a future President ordering a drone strike on a target within America in the name of national security.  We have to be very careful at establishing precedent, because once that power is granted it's almost impossible to take it away.


Then what are we to do?

Should we keep them in play plotting or do we capture them with the possibility of even more lives lost than originally planned?

I understand the "give an inch and they take a foot" philosophy. That is what I believe on many things. Thing is is that it is happening in a warzone area. It is war and we are dealing with a very motivated enemy. These people are in active treason against the US. US constitution clearly gives the President power how to deal with this situation.
 
2013-02-05 12:42:15 AM  

nmrsnr: I think we both knew that, he was responding to my hypothetical, but do you believe that the distinction that it was a convoy to be material?


You were setting out the scenario of what this "actually pertained" to--that's not really a hypothetical. I do think its material. Its a lot easier to pinpoint strike a specific figure from a distance in a line of vehicles than a specific figure inside any kind of reinforced base. The collateral damage (and therefore damage to multiple possible Americans who might or might not be targets) will necessarily be larger in the latter case.
 
2013-02-05 12:44:35 AM  

Rincewind53: And the Yemeni legal system's dictate isn't really relevant here, since this is entirely about America's actions.


Depending on the legal agreement that exists between the countries, its not irrelevant. If certain contingent commitments are made and the conditions that trigger those commitments are reached, then the follow-through it does indeed matter as a principle of international law too.
 
2013-02-05 12:47:44 AM  

Rincewind53: No. It takes a rather deliberately obtuse reading of my post on the Constitutional issues involved with targeted killings of Americans to imply that I'm totally okay with the targeted killings of non-Americans. It's just that the targeted killings of non-Americans does not raise the same Due Process issues.


Which is kind of my point, you're hinging your argument on whether or not the target is American, I'm arguing that, in the abstract (that is, what power the President should be capable of wielding), whether or not the target is American is irrelevant. If it's okay to target people in a base (or a convoy, for Somacandra) then it's okay to target people.

So I'm going to ask again, which scenarios do you have issue with (and not have a legal argument for) targeting people in Afghanistan, targeting people in Yemen, Targeting an American in Afghanistan, or targeting an American in Yemen? And, if you are not against all of them, what distinction are you seeing that I'm not, because to me, they all seem pretty similar.
 
2013-02-05 12:48:32 AM  

cman: These people are in active treason against the US.


Is it actually treason? Treason is defined in the Constution: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. "

Is plotting to blow up a shopping mall "levying war against [the United States]"? Was Timothy McVeigh guilty of treason? How about Adam Lanza? Both employed tactics directly used by Al-Qaeda.  Is Al-Qaeda the kind of "enemy" envisioned by the Founders? Surely they meant enemy nation-states, not political groups.
 
2013-02-05 12:49:28 AM  

Somacandra: GAT_00: How about what's left of the left steps up and collectively says "This is wrong" for a change.

I'll get right on the horn to Noam Chomsky and Edward S. Herman about that. I'm sure this will all be news to them.


How the fark do you not have a problem with the President executing American citizens?  How does everyone not have a problem with that?
 
2013-02-05 12:52:06 AM  

Somacandra: Depending on the legal agreement that exists between the countries, its not irrelevant. If certain contingent commitments are made and the conditions that trigger those commitments are reached, then the follow-through it does indeed matter as a principle of international law too.


Okay, you're right, the third part of the proposed test (dictates of international law) do make the Yemeni law relevant.

nmrsnr: Which is kind of my point, you're hinging your argument on whether or not the target is American, I'm arguing that, in the abstract (that is, what power the President should be capable of wielding), whether or not the target is American is irrelevant. If it's okay to target people in a base (or a convoy, for Somacandra) then it's okay to target people.

So I'm going to ask again, which scenarios do you have issue with (and not have a legal argument for) targeting people in Afghanistan, targeting people in Yemen, Targeting an American in Afghanistan, or targeting an American in Yemen? And, if you are not against all of them, what distinction are you seeing that I'm not, because to me, they all seem pretty similar.


I'm against drone strikes in general. I believe them to be ineffective in the grand scheme, creating more enemies as a side effect of their use than are killed by their intended use. I think the use of drone strikes in Somalia, Yemen, Afghanistan, Pakistan, Mali, and other countries, is often a violation of territorial sovereignty forced on other countries through muscle.

That being said, I believe that drone strikes targeting foreign nationals does not raise the same kind of Constitutional questions as drone strikes targeting American citizens, and that the latter are accorded more protection under the laws of the United States as a result of our Constitution, the document we are supposedly protecting through the Global War on Terror.
 
2013-02-05 12:52:28 AM  

DamnYankees: I gotta be honest - I don't get why this is new. Hasnt this been the known position of the US government for years?


No.

It is new.   Amazing that 0bama is more like Dick Cheney than Dick is.
 
2013-02-05 12:53:22 AM  

GAT_00: Somacandra: GAT_00: How about what's left of the left steps up and collectively says "This is wrong" for a change.

I'll get right on the horn to Noam Chomsky and Edward S. Herman about that. I'm sure this will all be news to them.

How the fark do you not have a problem with the President executing American citizens?  How does everyone not have a problem with that?


I think his point was to use sarcasm to point out that the Left in America has been against this from day frickin' one. After the killing of Bin Laden, Noam Chomsky called Obama a worse terrorist than Bin Laden. There were also howls of outrage on the Left about Awlaki's killing.
 
2013-02-05 12:54:12 AM  

tenpoundsofcheese: DamnYankees: I gotta be honest - I don't get why this is new. Hasnt this been the known position of the US government for years?

No.

It is new.   Amazing that 0bama is more like Dick Cheney than Dick is.


It's not new, but you knew that. The only new thing is that the legal document justifying the policy was released to the press.
 
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