Holder: US can legally kill Americans in terror groups

[Admiral Yi]

Ahhh, so the issue is not so much that the US is killing US citizens retail, but that they are doing so retail?

I know what you meant to say.

Not so much the difference between wholesale and retail; more like the difference between individualized service and mass marketing.

[Berkut]

OK, so if we assume this is a terrible policy, and is in fact a vile breach of US government power in violation of the restrictions placed on it by the COnsitutition, what is the alternative?

Do we simply let US citizens lead, organize, and participate in attacks on the US without targetting them individually, and just hope to take them out by accident? What does that mean exactly?

We cannot keep their name on a list of potential targets? Does that mean if their name does come up as being at such and such location, we should refrain from attacking that location unless there is some non-American there to blow away sans due process?

A related question: What is the major practical problem with this practice (beyond the practical problems with the idea of the US going after terrorist targets in general in this manner)? Is there some kind of realistic concern that today it is terrorists, but tomorrow it might be tax evaders or some other not quite so obvious a threat?

[Gups]

I'd think smoking dope would be as bad for you lungs as smoking tobacco.

Almost certainly worse. But only a few smoke 20 joints a day.

[Admiral Yi]

@Berkut

It's the principal of the thing.  Even if we catch a guy red-handed raping and murdering, we don't string him up on the spot, we give him a trial.

That's why I raised the question about trials in absentia.  Let's say there's enough proof to find him guilty of whatever.  Then we say turn yourself in or we go shoot on sight.

[Iormlund]

OK, so if we assume this is a terrible policy, and is in fact a vile breach of US government power in violation of the restrictions placed on it by the COnsitutition, what is the alternative?

Do we simply let US citizens lead, organize, and participate in attacks on the US without targetting them individually, and just hope to take them out by accident? What does that mean exactly?

We cannot keep their name on a list of potential targets? Does that mean if their name does come up as being at such and such location, we should refrain from attacking that location unless there is some non-American there to blow away sans due process?

A related question: What is the major practical problem with this practice (beyond the practical problems with the idea of the US going after terrorist targets in general in this manner)? Is there some kind of realistic concern that today it is terrorists, but tomorrow it might be tax evaders or some other not quite so obvious a threat?

What's the problem of getting a judge involved?

Either that or you kill him silently as it's always been done, instead of trying to legalize state assassinations.

[Berkut]

@Berkut

It's the principal of the thing.  Even if we catch a guy red-handed raping and murdering, we don't string him up on the spot, we give him a trial.

That's why I raised the question about trials in absentia.  Let's say there's enough proof to find him guilty of whatever.  Then we say turn yourself in or we go shoot on sight.

I get the idea behind the principle, I am just saying that if we accept the principle, what is the practical effect? How do we deal with these people if we accept that the current policy is not acceptable?

[Berkut]

OK, so if we assume this is a terrible policy, and is in fact a vile breach of US government power in violation of the restrictions placed on it by the COnsitutition, what is the alternative?

Do we simply let US citizens lead, organize, and participate in attacks on the US without targetting them individually, and just hope to take them out by accident? What does that mean exactly?

We cannot keep their name on a list of potential targets? Does that mean if their name does come up as being at such and such location, we should refrain from attacking that location unless there is some non-American there to blow away sans due process?

A related question: What is the major practical problem with this practice (beyond the practical problems with the idea of the US going after terrorist targets in general in this manner)? Is there some kind of realistic concern that today it is terrorists, but tomorrow it might be tax evaders or some other not quite so obvious a threat?

What's the problem of getting a judge involved?

I don't think any kind of judicial proceeding could possibly meet any non-trivial standards of trial or evidence.

Although I guess it would depend on what the burden of proof needed to issue a Warrant of Extreme Threat or whatever they would call it...hmmm.

Another problem would be getting any kind of necessary legislation passed, I would think. Still, the idea has potential. It's not like there are hundreds of these out there, right?

Either that or you kill him silently as it's always been done, instead of trying to legalize state assassinations.

I think that is what is happening right now. It is sitting in one of those oh so convenient "grey" areas.

[Hansmeister]

If Ashcroft had said this JR and the other hacks would've been crying Bushitler and other nonsense, yet as long as it is a Democrat we get only silence.  Good thing to know they were always unprincipled partisans.

The laws of war are applicable here, the Constitution places that power chiefly in the executive (with legislative oversight), there is no room at all for the courts in this, which is why I've always objected to attempts to bring Al Qaeda to court.  The only proceedings similar to legal proceedings (but not the same) we should indulge are hearings in front of Military Tribunals.  Unfortunately Bush started the slipprey slope of co-mingling civil law and law of war on an ad hoc basis whenever it was convenient.

Yes, I'm quoting one of the unprincipled partisans right now.  You never did respond to comment about blasting Democratic obstructionism back in the Bush administration.  As far as I know JR hasn't even posted in this thread.

I didn't reply since you made a vague and unsubstantiated complaint.  When have I decried Democratic "obstructionism"?

And JR not having commented is exactly my point.  When Bushitler was in the WH he would've been the first one to wave the bloody shirt, yet now he is quiet.

[Hansmeister]

Oh and for the record I think this is a bad position.  I don't deny that the US government should have the power to kill citizens who have taken up arms against it.  No Government can survive without that power.  But looking for the power to do so through due process is silly.  It's trying to have it both ways.  They are either enemy combatants or criminals.  You can't be both.

And this is what I had been saying since right after 9-11, but then the Democrats were all screaming bloody murder.  Now with a Democrat in the WH all the little lemmings come around to my position.

And since I'm not a partisan hack I won't change my position simply because of who is in the WH.

[Berkut]

Do we simply let US citizens lead, organize, and participate in attacks on the US without targetting them individually, and just hope to take them out by accident? What does that mean exactly?

I guess I do not understand.  How does following the constitution and legal processes equal simply letting crimes be committed?

Well, there is a debate about whether or not killing Americans overseas is or is not following the constitution and legal processes, so your question is a logical fallacy in that in order to answer it I would be forced to concede the answer.

Would you like to rephrase without the fallacy?

[The Minsky Moment]

Hmm just saw this thread.
Didn't realize I was required to comment.

Anyway, having given great thought to the matter, I find this whole policy very troubling.  I blame George Bush and Adolf Hitler.

[Hansmeister]

Hmm just saw this thread.
Didn't realize I was required to comment.

Anyway, having given great thought to the matter, I find this whole policy very troubling.  I blame George Bush and Adolf Hitler.

At least you have a good sense of humor.

[The Minsky Moment]

It cannot be denied that on matters concerning the prosecution of the conflict formerly known as the Global War on Terror, the policy of the Obama Administration has not differed in substance from that of the Bush Administration c.2006-08, just in rhetoric.  In some ways that is OK, in some ways not OK - in the same respect as the late Bush admin policy was in some ways OK, some ways not OK.

The issue raised here in Tim's post is a thorny one because the Fifth Amendment does not use the word "citizen".  Read literally, it applies to all persons and operates as an absolute limit on state action.  On an originalist view, that literal interpretation makes sense, because the only circumstance in which the early Republic would be involved in killing people via state action other than through the rare federal criminal proceeding would be through properly declared wars.

Times have changed quite a bit since then, and generally speaking the US government does not declare its wars before it starts the business of killing bad guys.  On a literal reading of the Fifth Amendment, this is somewhat problematic even without wading into the war powers controversy.  But as the US has been doing this for quite a long time now, and there are some compelling practical reasons for permitting this, in practice there is now an exception to the Fifth for killing of overseas bad guys as designated by the President.  Given that implied exception, why should this practice not be extended to citizens - given that the Fifth Amendment makes no distinction between citizens and non-citizens?

The logic works but the doctrine says otherwise.  Because in Johnson v. Eisentrager and Hamdi v. Rumsfeld, the Court recognized key distinctions between citizens and non-citizens concerning the level of process that is due, notwithstanding the apparent lack of such distinction in the Constitutional text.  Combined with the other Bush-era constitutional decisions, current doctrine appears to be that some minimal level of due process and review must be provided whenever the government takes action either within its de facto territorial jurisdiction or vis-a-vis a US citizen.  And given that doctrinal background, it is hard to see how Holder can justify his position as a legal matter.

[The Brain]

How was this handled in the Civil War?

[The Minsky Moment]

How was this handled in the Civil War?

Lincoln invoked the Insurrection Act which gave him legal authority to supress the rebellion by force.