Justice Department memo reveals legal case for drone strikes on Americans

[Valmy]

Are these drone strikes considered assassinations? Serious question.

I believe they are officially acts of war, as we are at war with Terrorism, and the targets are considered combatants.

[Ideologue]

Did someone get a box set of SNL vids for Christmas? 

Man, I was trying to find the Kelsey Grammar 20,000 Leagues Under the Sea one the other day, and no dice.  That sketch was awesome.

[Ideologue]

I can't bring myself to get very worked up about the targeting of terrorists by drones or any other similar means. Is the collateral damage from drone strikes higher than the collateral damage from, say, rockets fired from manned fighters?

And if not, what can we do to get those numbers up?

[mongers]

My concern is with the practicalities of their use, maybe a subject for another thread. 

The use of drones seems to lower the bar in several areas, because there's no one riding the thing, there's no risk of losing US lives or a shoot down resulting in a Gary Powers international incident, drones are more deniable and even in the case of the Iranian capture of the US drone seems to generate less controversy (ie no US hostage)

So Obama seems to be relying on them more and more, maybe he's getting a touch of the LBJ syndrome, at first caring a great deal about collateral damage and now not being so bothered, hence deploying them increasingly, just so long as a target is taken out ?

Hasn't the CIA guy who oversaw the early days of the Afghanistan/Pakistan drone program gone on record to say, the US is relying too heavily on them and neglecting other policy tools ?

My main concern is US forces withdraw from Afghanistan and the Karzai 'administration' can't hold its shit together and collapses in a little over a year.
So what if the US can carry out a drone strike on the day Taliban leaders take over the Afghan president's offices, there always be more Islamists to take their place.  And the US will be face with having to implement a program on steriods, DronesPlus ?

Better to be now ratcheting down the campaign and try and co-op/negotiate with those 'militant' willing to fold into a wider national Afghan coalition ?

As an aside, doesn't a drone campaign that's successful in it's own internal objectives of taking out lots of taliban leaders, run the risk of just creating a lot of churn, enabling more younger, extreme militants to take up leadership position ?
Eventually someone has to negotiate with these people ?

[Ideologue]

So what if the US can carry out a drone strike on the day Taliban leaders taking over the Afghan president's offices, they'll always be more Islamists to take their place.

No.  Their numbers are finite.

[derspiess]

Did someone get a box set of SNL vids for Christmas? 

No, but Easter is coming up (hint, hint).

[The Minsky Moment]

Are these drone strikes considered assassinations? Serious question.

I believe they are officially acts of war, as we are at war with Terrorism

No we are not.

[The Minsky Moment]

Here's the problem:

The only possible justification for using this kind of force without securing warrants or following court procedures is as an excercise of some war power.
But the authority to declare war is vested in Congress and these drone strikes are targeted in countries we plainly are not at war with.

Now the modern reality is that we don't really declare wars anymore.  It isn't practical to hamstring the use of military force by requiring a formal preceding declaration of war of Congress.  So the constitutional kludge of a solution is the War Powers Resolution.  Basically, it allows the President carte blanche do use military force but only for a limited time, then he has to get authority from Congress.  And although every President has insisted they aren't bound by it, every one has also agreed to act in accordance with it because no one dares test in the courts the unvarnished executive authority to employ unilateral war powers.

The war power resolution worked pretty well but it presumes that the use of miliatary force will involve some kind of deployment of soldiers, sailors or airmen to carry out - the Resolution is triggered by the entry of United States Armed Forces into "hostilities" or foreign territory.  As long as physical commitment of forces to a zone of hostilities is required, the Resolution will ensure that Congress will ultimately be able to approve or disapprove the action, unless the President can somehow wrap everything up in 60 days.

The tricky thing about a drone campaign is that it effectively evades all this.  The drone campaign as a whole is continuous and long-term but any particular act of entry to hostilities by an instrumentality of the armed forces is ephemeral.  So what  results is a series of logically connected but functionally separate, transient acts of war.  That not only allows effective evasion of Congressional authorization and responsibility, it also raises the potential danger of blurring the lines between conduct of war and conduct of criminal law enforcement, including the improper use of military instrumentalities to carry out law enforcement tasks.

[Berkut]

That is no different however in using a Tomahawk to blow up a terrorist camp in some other country though.

Drones just let us do what we have always been able to do expensively, cheaply. There is no difference in kind between lacuning some cruise missiles into the tribal areas of Pakistan, and using a drone to launch a Hellfire.

I think there is a greater issue here, really - and that is the fact that the exercise of deadly force by the state against those perceived to be threats, but under circumstances that simply do not fit into anything that would traditionally resemble "war" is largely undefined from any kind of legal standing. It mostly seems like states that can do it, do do it, and there isn't much anyone can do about it, no real oversight, and no particular control outside of international political pressure.

This mostly works out acceptable ok so far because it has just been the "good guys" doing so, but what about when it is not?

I don't see this as a law enforcement issue however - that I just do not buy. Dealing with international organizations intent on creating terror is not law enforcement, it is something else. Perhaps it is just my lack of imagination, but I cannot even conceive of how a well intentioned administration could handle threats like Al-Quaeda and the like using strictly law enforcement tools.

[Scipio]

Here's the problem:

The only possible justification for using this kind of force without securing warrants or following court procedures is as an excercise of some war power.
But the authority to declare war is vested in Congress and these drone strikes are targeted in countries we plainly are not at war with.

Now the modern reality is that we don't really declare wars anymore.  It isn't practical to hamstring the use of military force by requiring a formal preceding declaration of war of Congress.  So the constitutional kludge of a solution is the War Powers Resolution.  Basically, it allows the President carte blanche do use military force but only for a limited time, then he has to get authority from Congress.  And although every President has insisted they aren't bound by it, every one has also agreed to act in accordance with it because no one dares test in the courts the unvarnished executive authority to employ unilateral war powers.

The war power resolution worked pretty well but it presumes that the use of miliatary force will involve some kind of deployment of soldiers, sailors or airmen to carry out - the Resolution is triggered by the entry of United States Armed Forces into "hostilities" or foreign territory.  As long as physical commitment of forces to a zone of hostilities is required, the Resolution will ensure that Congress will ultimately be able to approve or disapprove the action, unless the President can somehow wrap everything up in 60 days.

The tricky thing about a drone campaign is that it effectively evades all this.  The drone campaign as a whole is continuous and long-term but any particular act of entry to hostilities by an instrumentality of the armed forces is ephemeral.  So what  results is a series of logically connected but functionally separate, transient acts of war.  That not only allows effective evasion of Congressional authorization and responsibility, it also raises the potential danger of blurring the lines between conduct of war and conduct of criminal law enforcement, including the improper use of military instrumentalities to carry out law enforcement tasks.

The problem is that the white paper expressly claims these assassinations are authorized by the law of war.  So I would like to see that actual analysis, not just their conclusions.

[grumbler]

Here's the problem:

The only possible justification for using this kind of force without securing warrants or following court procedures is as an excercise of some war power.
But the authority to declare war is vested in Congress and these drone strikes are targeted in countries we plainly are not at war with.

Now the modern reality is that we don't really declare wars anymore.  It isn't practical to hamstring the use of military force by requiring a formal preceding declaration of war of Congress.  So the constitutional kludge of a solution is the War Powers Resolution.  Basically, it allows the President carte blanche do use military force but only for a limited time, then he has to get authority from Congress.  And although every President has insisted they aren't bound by it, every one has also agreed to act in accordance with it because no one dares test in the courts the unvarnished executive authority to employ unilateral war powers.

The war power resolution worked pretty well but it presumes that the use of miliatary force will involve some kind of deployment of soldiers, sailors or airmen to carry out - the Resolution is triggered by the entry of United States Armed Forces into "hostilities" or foreign territory.  As long as physical commitment of forces to a zone of hostilities is required, the Resolution will ensure that Congress will ultimately be able to approve or disapprove the action, unless the President can somehow wrap everything up in 60 days.

The tricky thing about a drone campaign is that it effectively evades all this.  The drone campaign as a whole is continuous and long-term but any particular act of entry to hostilities by an instrumentality of the armed forces is ephemeral.  So what  results is a series of logically connected but functionally separate, transient acts of war.  That not only allows effective evasion of Congressional authorization and responsibility, it also raises the potential danger of blurring the lines between conduct of war and conduct of criminal law enforcement, including the improper use of military instrumentalities to carry out law enforcement tasks.

Thanks, MM.  That's the sort of analysis I was hoping to see here.  I am now convinced that it does not have a thing to do with US citizenship, other than the ickeeness of the US government waxing US citizens in some peoples' minds, but that's just the context in which the debate seems to be framed.

It is something to think about, for sure.

I would, again, call to mind the piracy analogy.  Just as all civilized nations are permanently at war with all pirates, so I would argue all civilized nations are permanently at war with all terrorists.  Just as any military and naval forces can be employed against all pirates, so I would argue that all military and naval forces can be employed against all terrorists.  Thoughts?

[Scipio]

Here's the problem:

The only possible justification for using this kind of force without securing warrants or following court procedures is as an excercise of some war power.
But the authority to declare war is vested in Congress and these drone strikes are targeted in countries we plainly are not at war with.

Now the modern reality is that we don't really declare wars anymore.  It isn't practical to hamstring the use of military force by requiring a formal preceding declaration of war of Congress.  So the constitutional kludge of a solution is the War Powers Resolution.  Basically, it allows the President carte blanche do use military force but only for a limited time, then he has to get authority from Congress.  And although every President has insisted they aren't bound by it, every one has also agreed to act in accordance with it because no one dares test in the courts the unvarnished executive authority to employ unilateral war powers.

The war power resolution worked pretty well but it presumes that the use of miliatary force will involve some kind of deployment of soldiers, sailors or airmen to carry out - the Resolution is triggered by the entry of United States Armed Forces into "hostilities" or foreign territory.  As long as physical commitment of forces to a zone of hostilities is required, the Resolution will ensure that Congress will ultimately be able to approve or disapprove the action, unless the President can somehow wrap everything up in 60 days.

The tricky thing about a drone campaign is that it effectively evades all this.  The drone campaign as a whole is continuous and long-term but any particular act of entry to hostilities by an instrumentality of the armed forces is ephemeral.  So what  results is a series of logically connected but functionally separate, transient acts of war.  That not only allows effective evasion of Congressional authorization and responsibility, it also raises the potential danger of blurring the lines between conduct of war and conduct of criminal law enforcement, including the improper use of military instrumentalities to carry out law enforcement tasks.

Thanks, MM.  That's the sort of analysis I was hoping to see here.  I am now convinced that it does not have a thing to do with US citizenship, other than the ickeeness of the US government waxing US citizens in some peoples' minds, but that's just the context in which the debate seems to be framed.

It is something to think about, for sure.

I would, again, call to mind the piracy analogy.  Just as all civilized nations are permanently at war with all pirates, so I would argue all civilized nations are permanently at war with all terrorists.  Just as any military and naval forces can be employed against all pirates, so I would argue that all military and naval forces can be employed against all terrorists.  Thoughts?

That just supports the argument that the white paper is the forerunner to an extended justification for killing unpopular Americans, on American soil, with drones, without due process.

[dps]

these drone strikes are targeted in countries we plainly are not at war with.

Don't see how this particular bit matters.  We targeted a lot of weapons in France in 1917-18 and again in 1943-45 without ever being at war with France.

[Razgovory]

Obviously not a lawyer, but can't we treat terrorism like piracy, sort of like considering them at war with all humanity?  The US has launched several anti-piracy campaigns in it's history.  Is there no precedent there?

[The Minsky Moment]

The way I look at the problem is to start from first principles.
The drone strikes appear to qualify as sustained, ongoing campaign.  Thus, if the justification for evading the normal due process requirement for the use of governmental force is that it is a military campaign, then as a constitutional matter a Congressional declaration of war should be required.  But other than the decade-old AUMF, which is specific to the planners and perpetrators of 9/11, that authorization doesn't seem to exist.

Grumbler invokes the example of piracy, which under accepted of law of war, could justify a military campaign using military means without formal pre-authorization of a state of war.  And it is not unreasonable to analogize modern day terror organizations to pirates.  But it is a bit more tricky.  It's one thing to identify old time pirates on the high seas - but present day terrorist organizations make more of an effort to blend in and that creates a lot of very gray areas.  Take one concrete example - the Hamdan case.  Is Osama bin Laden's former chaffeur a terrorist such that he places himself outside of all protection of the law?  The DOD thought so, although the Supreme Court took a more nuanced view.  And if a driver is enough to qualify, how far to we go?  bin Laden's barber?  The guy who delivers his paper?

Such a campaign calls for some very fine judgments and very debatable distinctions.  But who makes those judgments and distinctions, what kind of review or control exists, and how does the sovereign citzenry come to learn about any of this?

It comes down to the age old problem: Quis custodiet ipsos custodes? 
The American answer was the Constitution but if the government acts on or even past the far margins of that document, where does that leave us?