Justice Department memo reveals legal case for drone strikes on Americans

[grumbler]

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?

Pirates are not "outside all protection of the law."  Nor was the identification of pirates on the high seas as simple as the movies would suggest.

Had Hamdan been the driver for some pirate lord rather than a terrorist lord, he would be entitled to the same protections of habeus corpus and due process as he now has.

And, I would note, the pirate precedent shows that it is entirely possible to have normal criminal courts deal with these kinds of criminals.

[Razgovory]

Though he is ignoring me, I'm with Grumbler on this one.

[CountDeMoney]

Though he is ignoring me, I'm with Grumbler on this one.

I'll be sure to let him know.

[Razgovory]

You do that, and while you are at it could you relay all my posts to Berkut.

[Hansmeister]

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.

We are at war, but not with a nation state.  In 2001 Congress gave the President pretty wide latitude to pursue the war against Al Qaeda.  Given the nature of our enemy this is an indefinite expansion of Presidential power to wage war around the world to defeat our enemy.  thus, the president's actions are completely justified and legal.

Congress can take that power away, just as it authorized it, but I don't see that happening anytime soon.  just as I predicted years ago the anti-war movement proved to be a group of partisan hacks who simply put Al Qaeda before their country as long as the opposition party controlled the White House.

In the end we either continue to pursue our enemy or stick our heads back into the sand until the next attack.  Though drone attacks are not nearly as good as capturing terrorists in order to gather more intel, but apparently drone attacks are morally superior to waterboarding.

[Ed Anger]

HANS SUPPORTS OBAMA.

[Hansmeister]

HANS SUPPORTS OBAMA.

As I've said in the past I'm an ideologue, not a partisan hack, unlike most of the posters here.

[Eddie Teach]

As I've said in the past I'm an ideologue, not a partisan hack, unlike most of the posters here.

I'd have trouble coming up with more than half a dozen posters that label could aptly be used for.

[derspiess]

As I've said in the past I'm an ideologue, not a partisan hack, unlike most of the posters here.

I'd have trouble coming up with more than half a dozen posters that label could aptly be used for.

In terms of strict allegiance to a party-- I'm with you on that.  In terms of antipathy *towards* a certain party, I disagree.

[Eddie Teach]

As I've said in the past I'm an ideologue, not a partisan hack, unlike most of the posters here.

I'd have trouble coming up with more than half a dozen posters that label could aptly be used for.

In terms of strict allegiance to a party-- I'm with you on that.  In terms of antipathy *towards* a certain party, I disagree.

Ok, who is against Republicans just to be against Republicans and not on ideological grounds that couldn't be considered a partisan Democrat?

[Hansmeister]

As I've said in the past I'm an ideologue, not a partisan hack, unlike most of the posters here.

I'd have trouble coming up with more than half a dozen posters that label could aptly be used for.

In terms of strict allegiance to a party-- I'm with you on that.  In terms of antipathy *towards* a certain party, I disagree.

My antipathy towards the msm is far higher than against the Democrats, due to their immense dishonesty. My opposition to the Democrats is ideological, since I consider their views a perversion of the American Constitutional ideal.

[derspiess]

As I've said in the past I'm an ideologue, not a partisan hack, unlike most of the posters here.

I'd have trouble coming up with more than half a dozen posters that label could aptly be used for.

In terms of strict allegiance to a party-- I'm with you on that.  In terms of antipathy *towards* a certain party, I disagree.

Ok, who is against Republicans just to be against Republicans and not on ideological grounds that couldn't be considered a partisan Democrat?

80% of Languish.

edit: and probably 95% of non-American Languishites.

[Eddie Teach]

I'm not seeing it. Most of Languish is against them on ideological grounds, especially the foreign contingent.

[fhdz]

The Republican Party has managed to take almost everything that made it great and systematically set fire to it. Why wouldn't a reasonably informed person be against them, even if you're not necessarily going to be pro-Democrat?

[The Minsky Moment]

In 2001 Congress gave the President pretty wide latitude to pursue the war against Al Qaeda.

Let's be precise: the authorization relates to "nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" 

Assuming the President's determination is subject to a rule of reason, that authorization relates to a finite, determinate group of people.  For example, it wouldn't extend to organizations that played no role in 9/11 and indeed didn't even exist at the time but subsequently formed and adopted al-Qaeda franchise names.  Nor would it extend to organizations or individual jihadis that are not al-Qaeda affiliated at all and had no role in 9/11.

Given the nature of our enemy this is an indefinite expansion of Presidential power to wage war around the world to defeat our enemy.

The point of requiring declaration of war is to limit Presidential warpowers to particular, definite objects as set by the coordinate branch.  An expansion of Executive warpower that is indefinite and unbounded  is antithetical to our constitutional system.