Holder: US can legally kill Americans in terror groups

[The Brain]

How was this handled in the Civil War?

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

Is the situation now different legally than back then? Regarding what is necessary to off citizens in arms against the US. Or are there just political differences?

[The Minsky Moment]

Is the situation now different legally than back then? Regarding what is necessary to off citizens in arms against the US. Or are there just political differences?

The Insurrection Act requires the existence of an insurrection within a state that is severe enough to prevent effective enforcement of state or federal law in that area with respect to a significant portion of the population.  The secession of the Southern States easily qualifies.  A couple of US citizen al Qaeda guys does not.

[grumbler]

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.

Not so.  States used state force against pirates without any need for a declaration of war.  As I have pointed out before, a strong case could be made that terrorists, like pirates, are in a permanent state of war against all civilized countries.  Terrorists, like pirates, can be killed where capture is not practical, and tried by special courts if and when captured.  They are not entitled to treatment as PoWs, because they are criminals.

If a US law is needed to nail that argument down beyond any legal doubt, then I think getting such a law passed would be easy.  This isn't really uncharted territory.

[Razgovory]

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.

Spring of 2005 if I recall.  You and I had an argument about it (since it was in the news), I pointed out that Democrats were doing the same thing that Republicans did during the Clinton administration.  You said this was untrue as Republicans weren't actually blocking appointments they were delaying them.  I suggested then it's possible that the Democrats were doing the same thing we could only tell with time.  Then you became quite.

It might be that JR is quite because he's not here yet.

EDIT: Unfortunately all records gong back that far have been lost.

[The Brain]

Quite.

[Razgovory]

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.

No, you were toeing the Bush line of "Illegal combatant", which attempted to have it both ways by creating a nebulous grey area in between.  Bush was forced to partly back away from this decisions by the courts and Obama has essentially continued the amended Bush administration position.  A lemming like me is still not entirely pleased with it, but it is not the position of you or Bush right after 9-11.

[Razgovory]

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.

Not so.  States used state force against pirates without any need for a declaration of war.  As I have pointed out before, a strong case could be made that terrorists, like pirates, are in a permanent state of war against all civilized countries.  Terrorists, like pirates, can be killed where capture is not practical, and tried by special courts if and when captured.  They are not entitled to treatment as PoWs, because they are criminals.

If a US law is needed to nail that argument down beyond any legal doubt, then I think getting such a law passed would be easy.  This isn't really uncharted territory.

States or Feds?

[Scipio]

We do try people in absentia, although it is rare and difficult to do properly.

Summarily convicting people who have purposely absented themselves from the jurisdiction after trial beginning happens all the time, though.

[The Minsky Moment]

Not so.  States used state force against pirates without any need for a declaration of war.  As I have pointed out before, a strong case could be made that terrorists, like pirates, are in a permanent state of war against all civilized countries.  Terrorists, like pirates, can be killed where capture is not practical, and tried by special courts if and when captured.  They are not entitled to treatment as PoWs, because they are criminals.

If a US law is needed to nail that argument down beyond any legal doubt, then I think getting such a law passed would be easy.  This isn't really uncharted territory.

I don't see how that rebuts what I said.  The very first federal criminal statute criminalized piracy and made it punishable by death.  Accordingly pirates may be pursed and force used against them just as would be the case with any other criminal suspect.

[grumbler]

I don't see how that rebuts what I said.  The very first federal criminal statute criminalized piracy and made it punishable by death.  Accordingly pirates may be pursed and force used against them just as would be the case with any other criminal suspect.

maybe I misunderstood your intent, then, when you argued that "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."  The US Navy's anti-piracy actions were not (in my mind, at least) "rare Federal criminal proceedings" nor were they part of "properly declared wars."  It is true that piracy was not longer an issue in US waters, but the US maintained a strong anti-piracy patrol in the Med in those early years.

[The Minsky Moment]

The US Navy's anti-piracy patrols were conducted under the color of federal statute, which made piracy on the high seas a criminal offense punishable by death.  As such there could not be any 5th amendment problem.   The power to try and punish felons implies the power to enforce the law by seeking out and apprehending such felons, including the use of any reasonable force to do so.  And since the piracy statute as enacted in 1790 and subsequently amended relates to actions on the high seas, the US Navy would be a logical and appropriate organization to perform those tasks.

[Hansmeister]

Spring of 2005 if I recall.  You and I had an argument about it (since it was in the news), I pointed out that Democrats were doing the same thing that Republicans did during the Clinton administration.  You said this was untrue as Republicans weren't actually blocking appointments they were delaying them.  I suggested then it's possible that the Democrats were doing the same thing we could only tell with time.  Then you became quite.

It might be that JR is quite because he's not here yet.

EDIT: Unfortunately all records gong back that far have been lost.

I vahuely remember this topic and of course I would be unhappy with the outright blocking of nominees for no declared purpose other than political agreement, not fitness for office.  And this is exactly what the Democrats did, blocking their nominations for years.  Now I would distinguish that from blocking nominees due to specific qualitative objections or placing a hold on a nominee for a specific action until it is addressed.  In case of the Clinton administration the GOP did what happened in every administration and that was to slow down the approval of nominees at the end of a President's second term in office in order to maximize appointment opportunities for the incoming President.  The Democrats changed the rules at the beginning of Bush's Presidency using blocks as a way to try to cripple the administration from the onset.

I don't think though blocks or holds are in the long term constructive and should be used, if at all, only in the most severe of circumstances.

Obama has taking this to a whole new level, recess appointing nominees without ever submitting documentation to Congress for hearings, and most recently in a blatantly unconstitutional manner recess appointed nominees without Congress being in recess!  I guess he figures they can implement his policies until they will get tossed off by the courts.

[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.

No, you were toeing the Bush line of "Illegal combatant", which attempted to have it both ways by creating a nebulous grey area in between.  Bush was forced to partly back away from this decisions by the courts and Obama has essentially continued the amended Bush administration position.  A lemming like me is still not entirely pleased with it, but it is not the position of you or Bush right after 9-11.

No, you retard, I was actually making the same argument you were making just a few posts back.  They are illegal combatants, not entitled to the Constitutional protection due to being combatants, not entitled to geneva protections due to being unprotected combatants as defined under the geneva conventions.

The only thing they are entitled to is a "competent military tribunal", as defined by the geneva convention, to determine if they are legal or illegal combatants.  Once determining that they are illegal combatants we should hang them from the neck until dead.

This has always been my position, and I agrued this position vehemently over the years, especially with JR.  And I was critical of Bush for deciding to bring some of them on trial because he believed we had enough evidence to convict in court.  It is simply not a just system if you change the way you treat them simply based on how much evidence you have.

[grumbler]

The only thing they are entitled to is a "competent military tribunal", as defined by the geneva convention, to determine if they are legal or illegal combatants.  Once determining that they are illegal combatants we should hang them from the neck until dead.

  You don't understand the concept of "rule of law' at all, do you?

You are in a perfect place for people with your mentality. The damage you can do by advising people to avoid thinking is actually minimal there.

What someone is if they are not a lawful combatant is a criminal.  Even criminals have to get trials before they are hanged.

[Razgovory]

Spring of 2005 if I recall.  You and I had an argument about it (since it was in the news), I pointed out that Democrats were doing the same thing that Republicans did during the Clinton administration.  You said this was untrue as Republicans weren't actually blocking appointments they were delaying them.  I suggested then it's possible that the Democrats were doing the same thing we could only tell with time.  Then you became quite.

It might be that JR is quite because he's not here yet.

EDIT: Unfortunately all records gong back that far have been lost.

I vahuely remember this topic and of course I would be unhappy with the outright blocking of nominees for no declared purpose other than political agreement, not fitness for office.  And this is exactly what the Democrats did, blocking their nominations for years.  Now I would distinguish that from blocking nominees due to specific qualitative objections or placing a hold on a nominee for a specific action until it is addressed.  In case of the Clinton administration the GOP did what happened in every administration and that was to slow down the approval of nominees at the end of a President's second term in office in order to maximize appointment opportunities for the incoming President.  The Democrats changed the rules at the beginning of Bush's Presidency using blocks as a way to try to cripple the administration from the onset.

I don't think though blocks or holds are in the long term constructive and should be used, if at all, only in the most severe of circumstances.

Obama has taking this to a whole new level, recess appointing nominees without ever submitting documentation to Congress for hearings, and most recently in a blatantly unconstitutional manner recess appointed nominees without Congress being in recess!  I guess he figures they can implement his policies until they will get tossed off by the courts.

So are you against what the GOP is doing or not?