Off With Their Heads!

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Can the president order a terror suspect on American soil summarily killed? "Signs point to yes" says Steven Bradbury, head of the Justice Department's Office of Legal Counsel, to Sen. Feinstein in a closed-door Senate intelligence committee meeting, according to this Newsweek account.

Yes, that's the Justice Department of the United States of America.

[Link via Rational Review.]

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  1. Alright, that’s going a little far even for me.

  2. I wonder if it matters whether the suspect is a citizen. By using the Flight 93 example, I’d have to say not. This is one of those ‘extreme cases make bad law’ scenarios.

  3. Wow, its almost like the administration considers terrorist to be out-of-uniform soldiers instead of civil criminals.

    Oh, wait, they are.

    Why can’t people get their head around the idea that terrorist are merely covert military teams requiring a military style response? Just because today a relatively small number of terrorist can do as much damage and accomplish as much politically as a battalion in the past doesn’t change the essential dynamic.

    If a dozen guys in uniform paddled ashore or crossed the border and started shooting up the first place they reached, no one would think that the President couldn’t order the most immediately available military units to kill them. Nor would anybody object if he decided to ambush them before they could actually strike. So, why doesn’t the same basic concept apply if the military units are disguised as civilians?

  4. Hmm, reminds me, did the public ever learn the identity of the government agent that pumped 5 rounds into the back of the head of that accidental “terrorist” on the London subway?

  5. Shannon…Since this war is going to last forever, it’s going to require a certain amount of re-thinking of the entire American political and legal process. For instance, if an American on American soil was suspected of joining Al Qaeda, should the President be able to order him/her killed without due process? What if info linking this person to Al Qaeda was wrong? Now we have assassination teams wandering America killing people by mistake. That might bother some folks.

  6. Doesn’t anyone here watch 24? It’s already been done…and torture of citizens, cabinet members even, all routine. Lives are at stake!

    Wait, it’s not real? I thought it was like 48 Hours or 20/20.

  7. Shannon,

    both the “guys in uniform” and “[actively] shooting” would invalidate the part where they’re just suspects.

    The reason this hullabaloo has arisen is because anyone can count as a “terror suspect”.

    Dumb Powerline readers (Glenn Reynolds, I’m looking at you!) have tried to confuse the issue by conflating terrorists and terror suspects – I presume they’re hoping they’ll get snazzy uniforms later.

  8. Shannon, even prisoners of war aren’t summarily killed (at least not officially).

  9. Shannon Love,

    So, why doesn’t the same basic concept apply if the military units are disguised as civilians?

    My suggestion is that you read Ex parte Milligan and Ex parte Quirin as well as the Steel Seizures case.

  10. Johnny Clarke,

    “Now we have assassination teams wandering America killing people by mistake.”

    Well, that is why all the rules of civilized warfare place a great burden on combatants to differentiate themselves from non-combatents. To bad, its now considered acceptable behavior in some quarters and of course when mistakes get the blame is always placed on the agents of the local liberal democracy and not on the war criminals who intentionally created the confusion in the first place.

    I realize that slippery slope arguments are absolutely required in these types of discussions but I think it will some time before we see teams of “assassins” (interesting choice of word) roaming the country whacking hoards of innocent people.

    A more relevant question is: Does the President have the authority to order an attack on military units operating on American soil. I say he does. It seems to be an inherent excutive power.

  11. CTD,

    Remember the Oregon attorney who was actually arrested due to an FBI foul-up (much of which was based on FBI arrogance regarding the Spanish police)? One gets the feeling that collectivists Shannon Love simply don’t believe in individual, personal freedom, but have simply accepted a default statist position.

  12. I haven’t RTFA, but I would imagine circumstances would have to be paramount. If there’s credible evidence someone is about to kill others if not eliminated immediately, then it doesn’t really matter if he’s a foreign agent or a terrorist or whatnot. You take him out. Any of us would do the same thing. But if someone is merely suspected of belonging to a terrorist organization, then you arrest him and put him through the legal process. Seems simple enough to me.

  13. Shannon-

    1) Enemy soldiers can be killed if they are fighting, in the same way that a cop can shoot somebody who’s shooting at him. The difference between the guy in custody and the guy fighting in the field is that we have ways of dealing with the guy in custody without shooting him right away. We can investigate him to learn more about the threat against us, we can question him, we can even (if we feel like living on the wild side!) put him in front of 12 Americans and put forward the evidence that proves he’s a terrorist.

    2) Like somebody else said, we’ve been told that this war will go on forever. Can a Constitutional Republic, governed by the rule of law, survive in a state of eternal war on its own soil?

    3) When the enemy does its utmost to blend in among us and maintain secrecy, maybe we should ask that the government meet some standard of proof before shooting somebody that it claims is a terrorist. Just a thought.

    4) Since American citizens can join terrorist groups, it’s conceivable that summary execution could apply to US citizens. So let’s think about this a little:

    Say that there’s some eccentric guy with some crazy theories and a lot of guns. He’s been audited by the IRS, he’s been in a land dispute with the federal government (his land is adjacent to a National Park and there’s some issue concerning an access road), and he publishes some sort of weird newsletter. One day, the cops raid his home and say that they found guns, fertilizer, and maps and surveillance photos of a federal building. They shoot him on the spot, and (in what is surely a coincidence!) the authorities take his land now that he’s no longer around to challenge the taking in court.

    Oh, and you subscribed to his newsletter. That $20 you sent him makes you a terrorist sponsor. A federal employee may be heading to your house to put a bullet in the back of your head.

    Welcome to the post 9/11 America!

  14. I think Jimbo may have hit an essential truth. I harbor grave doubts that lead me to believe many in the citizenry are unlikely or unable to differentiate from stuff they’ve seen on the vast wasteland of entertainment from the stuff they see in the vast wasteland of the 24 hour news cycle. I really wonder if this issue will get half the notice from said citizenry that it deserves.

    Assassination squads roaming the country offing anyone that can palusibly be claimed *afterward* to have been a suspect ought to scare the hell out of us all.

  15. A more relevant question is: Does the President have the authority to order an attack on military units operating on American soil.

    Actually, Shannon, according to the story the question is can the president order a terror suspect on American soil summarily killed?

    “Terror suspects” and “military units operating on American soil” are two very different things. Why are you pretending they’re the same?

  16. when mistakes get the blame is always placed on the agents of the local liberal democracy and not on the war criminals who intentionally created the confusion in the first place.

    Oh please!! This is not a matter of apportioning fricken BLAME!! It’s a matter of determining what’s appropriate behavior for our own military! Nothing more, nothing less!

    Does the President have the authority to order an attack on military units operating on American soil. I say he does. It seems to be an inherent excutive power.

    Interesting that that sounds an awful lot like what happened at Waco. I will grant that at a certain point the distinction between criminals and military enemies becomes nebulous. We may need to revisit our whole notion of the rules of engagement. But I think it has to rest on the nature of the actual threat.

  17. fyodor and Jason-

    I’m pretty sure that it’s already legal to kill somebody who’s in the middle of executing a terrorist attack. You can shoot the guy with the boxcutter who’s charging toward the cockpit, or the guy whose finger is about tho hit the detonator for a bomb. That’s already legal.

    But I can’t think of any justifiable shooting scenario that doesn’t involve thwarting an attack in progress or shooting somebody who resists capture with lethal force. I can’t see any justification for ordering the death of somebody who will carry out an attack later in the day. Aside from my wimpy liberal objections, there’s the fact that it might make more sense to at least try to take him alive and interrogate him. Since some people love to cite scenarios from 24 to justify extreme actions, consider last night on 24 when a guy with crucial info was shot before he could help the authorities.

  18. Remember back in the 90s, when Waco and Randy Weaver were still in the news, and instead of Islamic terrorists the fear was that right-wing militia memberss from Idaho and Montana were going to try to overthrow the government and set up a white-supremacist nation in its place?

    If this summary-execution-for-terror-suspects thing becomes law, I’m sure the first few dead people will be Muslim Arabs who wouldn’t possibly be mistaken for One Of Us. But I think that would change before too long.

  19. Shannon Love,

    Also, basically you answer your own question. The further the President is away from a “repel attack” situation the less power the President has as a unilateral decisionmaker. After all, its the Congress and not the President which has the vast bulk of the war regulating power in the federal government.

    Does the President have the authority to order an attack on military units operating on American soil. I say he does. It seems to be an inherent excutive power.

    That’s called the “repel attack” power amongst constitutional scholars. It is inherently different from what is being claimed here – the right to summarily execute someone suspected of being a terrorist. If someone is merely a “suspect,” which precludes the idea that they are an a known active individual, then its clear that the more normal avenues of decision-making are appropriate and the President has no unilateral authority to decide otherwise.

  20. thoreau,

    I agree that executing a lone terror suspect who is not an immediate threat (like having his finger on the button of a bomb) is barbaric and beneath contempt.

    There may be gray areas, such as when a group of apparent terrorists pose a potentially lethal threat to would-be captors, as Reno apparently (regardless of whether she had reason to) saw at Waco. But if we’re really talking about a lone suspect without the means to immediately kill people, this shouldn’t even be an issue.

  21. fyodor,

    Its sort of unfortunate that most people don’t understand the basic constitutional analysis one should take in this area regarding which branch’s power is paramount.

  22. Oh, and you subscribed to his newsletter. That $20 you sent him makes you a terrorist sponsor. A federal employee may be heading to your house to put a bullet in the back of your head.

    Welcome to the post 9/11 America!

    Mental note… cancel all subscriptions.

  23. Jeff-

    If they ever accuse Jacob Sullum of terrorism (those drugs fund terror, you know) we may all be on the hit list.

  24. Lets not forgot those bedraggled vegetarians who protested Honey Baked Ham and were monitored as suspected terrorist. That homeland security guy who arrested the vegetarian who took down his license plate could’ve shot her, had he only know what we know now.

  25. You know, if this is being debated even here, then maybe we really are doomed. Just imagine what’s being said elsewhere {insert scene change}.

    We can already stop people in the middle of heinous crimes using deadly force, if necessary, without extraordinary claims of executive power. “Summary execution”, however, means something else, and it’s completely unconstitutional. We have courts and due proccess and stuff. I suppose there might be some gray area if we had an actual war on our soil, but terrorist attacks by themselves are not an “invasion”.

  26. Pro Libertate,

    In many cases they would be more properly known as “extra-legal executions.”

  27. If a dozen guys in uniform paddled ashore or crossed the border and started shooting up the first place they reached, no one would think that the President couldn’t order the most immediately available military units to kill them.

    What on earth does this fantasy have to do with the president ordering a killing of a terrorist suspect on US soil?

    MILITARY GUY #1: “Oh, look, a dozen swarthy guys in civilian clothes paddled ashore and started shooting up the place.”

    MILITARY GUY #2: “Darn. What should we do?”

    MILITARY GUY #1: “They might be terrorist suspects. Let’s call the president for orders.”

  28. Fodderstompf,

    Its obviously a very poorly thought out analogy.

  29. “Why can’t people get their head around the idea that terrorist are merely covert military teams requiring a military style response?”

    because i can’t read tom clancy without giggling.
    for the pc gamers out there:

    some of our beloved citizens are stuck in a really ridiculous level of farcry with a lot of bazookas, but the terrorists are played by the annoying fireball demons from doom 3. and they’re all like “kablammo!” and the demons go “rara!!! satan!!!” and die and then everyone eats freedom cream.

  30. Extremely “extra”, Hakluyt. Unless you meant “extra” to mean “very” 🙂

    I wonder if all the people who support this nonsense understand the implications. Even if you think Bush is Jesus Christ in a suit, what about the next president? If we continue to allow the limits on the federal government (on any branch, not just the executive) to be stripped away, what will be left in the end? Whether it’s the war on terror, the war on drugs, the war on tobacco, the war on fat, the war on other countries (thought I forgot that one, didn’t you?), the war on science, whatever, there’s always someone somewhere who needs absolute authority to take action. To protect the children, of course.

    Ultimately, the idea of limited government and specifically defined powers is what I care about most. That’s more important than any war or any other single issue.

  31. Pro Libertate,

    Why do you hate America and Fox News? 🙂

  32. Yeah, I’m becoming some kind of radical. I should’ve skipped Con Law–it gave me funny ideas. Maybe the country moved while I was standing still?

  33. Obviously, law enforcement officials could legally kill someone who is presently committing an act of terrorism and who will beyond reasonable doubt cause harm to other people if not immediately prevented from doing so. The “finger on the button” example clearly falls into that category — but so does an ordinary gunpoint robbery. A police officer can already kill someone in the act of committing a violent crime, if that is the only way to stop him. So to apply that logic to terrorist acts is not, on the face of it, anything new.

    What worries me is that by claiming it as some kind of principle that applies to the “war on terrorism,” the “Justice Department” intends to establish far broader powers. By saying that since obviously the President might have to order the killing of a terrorist lest imminent harm come to innocent people, I fear they mean to undermine the principle of due process — arguing that since we might have to make an exception to the rule, we don’t really need the rule anyway. It’s a dreadful logical fallacy, but enough Americans are fooled by this sort of thing to sway elections. From this article I don’t think anyone is specifically suggesting pre-emptive murder of terrorist suspects — but they’re floating the special case to sleaze the principle past us.

    (I may well be paranoid, but that doesn’t mean they’re not out to get me!)

  34. “Ultimately, the idea of limited government and specifically defined powers is what I care about most. That’s more important than any war or any other single issue.”

    Amen to that, and I’m one of those nanny statists.

    No justification for skipping due process no matter the topic under discussion. That’s what “nation of laws” is all about.

  35. Pro Libertate, I had forgotten the implications of outmoded constitutional government on our ability to wage the War on Fat. Capital idea! We shall begin summary executations of purveyors of obesity-inducing substances immediately!

  36. Look. Our government isn’t supposed to be particularly efficient. In fact, it was designed not to be. To protect us from overreaching fools in power, whatever their intentions.

    On top of that, our political and economic systems heavily depend on us being a very open society. The War on Terrorists seem to think we can restrict travel and close our borders to stop terrorists, not realizing that our economy would completely tank if we did so.

    Therefore, with an inefficient government and an open society, we are particularly vulnerable to terror tactics. Given that we are arguably the most successful society in history, I’m thinking what we don’t want to do is destroy or even damage that society because a few nutjobs managed to kill a few thousand people. We did the right thing after 9/11–we took the war to the people who shared responsibility for the attack. Then we got stupid and started mucking around domestically. Bad idea, and we will pay the piper for that mistake in one way or the other.

    Egad.

  37. I realize that slippery slope arguments are absolutely required in these types of discussions but I think it will some time before we see teams of “assassins” (interesting choice of word) roaming the country whacking hoards of innocent people.
    (emphasis added)

    Ms. Love, how about “death squads?” You prefer that choice of words?

  38. Jennifer,

    Actually, Shannon, according to the story the question is can the president order a terror suspect on American soil summarily killed? “Terror suspects” and “military units operating on American soil” are two very different things. Why are you pretending they’re the same?

    The phrasing of the article is creating the logical fallacy of begging the question. Labeling someone a “suspect” is to automatically classify them as a civilian. Likewise, soldiers are not killed “summarily” when they are killed in the field.

    Again, the question is: If the executive believes that it has identified a military unit operating on American soil can it attack it without warning? All other considerations aside, the answer is a definite yes.

    As the article itself points out, this situation will almost never arise in the real world. Capturing terrorist will always be a higher priority than killing them whenever possible. The odds that a situation will arise when an attempt to capture is deemed to dangerous is very low. The political cost of killing someone mistakenly will make the executive unwilling to act in all but the most dire circumstances. All the slippery slope hysteria is just empty posturing.

    A police officer, say a sniper, can kill a “suspect” without warning if the “believe” that the person presents an immediate threat. I think we can safely say that the Constitution grants the same authority to executive.

  39. Jennifer,

    Actually, Shannon, according to the story the question is can the president order a terror suspect on American soil summarily killed? “Terror suspects” and “military units operating on American soil” are two very different things. Why are you pretending they’re the same?

    The phrasing of the article is creating the logical fallacy of begging the question. Labeling someone a “suspect” is to automatically classify them as a civilian. Likewise, soldiers are not killed “summarily” when they are killed in the field.

    Again, the question is: If the executive believes that it has identified a military unit operating on American soil can it attack it without warning? All other considerations aside, the answer is a definite yes.

    As the article itself points out, this situation will almost never arise in the real world. Capturing terrorist will always be a higher priority than killing them whenever possible. The odds that a situation will arise when an attempt to capture is deemed to dangerous is very low. The political cost of killing someone mistakenly will make the executive unwilling to act in all but the most dire circumstances. All the slippery slope hysteria is just empty posturing.

    A police officer, say a sniper, can kill a “suspect” without warning if the “believe” that the person presents an immediate threat. I think we can safely say that the Constitution grants the same authority to executive.

  40. Pro Libertate: We did the right thing after 9/11–we took the war to the people who shared responsibility for the attack.

    !!!!

    /derail

  41. Shannon, as long as we’re talking about shooting bad guys about to do bad things, that’s okay. Or if three Canadians drove a tank across the border and looked like they weren’t willing to pull over, well, okay, let’s start shooting. But the executive already has the power to do those things, which makes the whole discussion a little odd.

    Anyway, I read the article, and it’s pretty clear that what they really meant was killing people under my first scenario. I don’t object to that, but it’s just a law enforcement issue, not anything else. There are certain situations where the military can be used domestically (even with posse comitatus), so if the president authorized the shooting down of a commercial airliner to stop a plane from flying into the Super Bowl, that would probably be legal. Though I wouldn’t want to be the president who issued such an order.

  42. Shannon Love,

    The problem is your willingness to conflate various categories of persons.

  43. oncogenesis, are you objecting to the invasion of Afghanistan? I’m no war junkie, but I have to say that I thought we were 100% justified in that move.

    Iraq is another issue, which I think even warhawks acknowledge was a debatable move.

  44. Did summary executions on American soil take place before? I am reasonably sure they happened durng the War of 1812 and the Civil War against spies, saboteurs, and deserters. So, if the question is: is it legally possible for there to be summary executions, the answer is yes. There is undoubtably a applicable precedent under which it could be allowed. Should it be standard operating procedure, no.

  45. Shannon-Is there any action which the present Administration has undertaken of which you disapprove?

  46. If the govmint knows of a terrorist and they know the location of the terrorist (so that they can kill them), why can’t they just capture them? Government is all about false dichotomies. Morons.

  47. “my sources say maybe.”

  48. 8 ball, I have a Washington Mutual “Power of Yes” Magic 8-Ball that gives only affirmative answers. Say, I wonder if that’s what the White House legal staff used in its evaluation of FISA?

  49. As the article itself points out, this situation will almost never arise in the real world.

    Didn’t they write memos on torture…um, I mean, frat pranks…and insist that it was merely an academic exercise to establish the parameters of executive authority?

    Maybe this is just an intellectual exercise and nothing more. But these guys have forfeited the right to have their intellectual exercises treated as idle speculation. It’s like the difference between me and Mahmoud Ahmadinejad: If I start talking with my colleagues about how to calculate the critical mass of plutonium for an explosion, you can bet that I’m trying to understand some physics. But if Ahmadinejad summons his best scientists to his office and asks them to do the calculation, the assumption is that he isn’t simply indulging his life-long desire to study physics.

  50. Thoreau,

    The guy on 24 (Sydney from The Pretender) was shot by his abused underage sex slave from Kiev, not Jack “How Much Do You Want This To Hurt” Bauer. I know that happens all of the time, but we can’t extrapolate to every real life situation.

    The real question is this: who would you rather have on the government payroll, Jack Bauer or Michael Chertoff. Hell, I’d rather have Donald Sutherland than Chertoff.

    Does anyone have The Equalizer’s number?

  51. oncogenesis, are you objecting to the invasion of Afghanistan? I’m no war junkie, but I have to say that I thought we were 100% justified in that move.

    Yes, I’m objecting to the invasion of Afghanistan, but moreso to the non-invasion of Saudi Arabia, the latter country “sharing” the most responsibility for the attack.

    Iraq is another issue, which I think even warhawks acknowledge was a debatable move.

    You tread too lightly. I prefer to say invading Iraq was stupid and criminal.

  52. Pro Libertate:

    Iraq is another issue, which I think even warhawks acknowledge was a debatable move.

    I suppose that I could be considered a warhawk. I supported the invasion of Afghanistan 100%. ( I was “calling” for an invasion of Afghanistan prior to 9/11 because of the Taliban’s treatment of women, girls, and gays. I have a stubborn liberal internationist streak that I can’t seem to eliminate.)

    I also supported the invasion of Iraq, but I always considered it a crapshoot and debatable. Now, I waver between feelings of guilt and naive hope. The anti-Iraq folks here make me feel rather guilty at times. My support for the war was only personal, since I didn’t vote for Bush in either election. (How could anyone vote for Bush or Kerry? I’m no conspiracy theorist, but voting for a member of Skull and Bones just seems very wrong to me. I hate those fuckers!)

  53. oncogenesis,

    The invasion of Iraq may well have been stupid, but it was not necessarily criminal (at least according to international law, which is a fuzzy subject).

    I definitely agree with you that Saudi Arabia would have been a preferable target to Iraq. I guess you can’t blame Bush for not wanting to invade his man-lover’s kingdom.

  54. You know, if this is being debated even here, then maybe we really are doomed. Just imagine what’s being said elsewhere

    Exactly. I go to a libertarian site and I get people defending torture, detention without trial, and now summary executions on US soil.

    If tomorrow the President declared that we need a centrally planned economy to defeat terrorists, there would be some self-described libertarians explaining that this is perfectly fine.

  55. thoreau,

    You should know by now that libertarians have less of a problem with killing than centrally-planned economies! ; >

  56. Note that even in World War II the German saboteurs who landed in Long Island were given trials–military trials to be sure but still trials.

  57. Maybe we’re all Duubyists (or however Doctorx spells it) after all.

  58. David T.,

    They even got to go before the Supreme Court to challenge the constitutionality of their trials (granting cert seriously pissed off the FDR administration I must add).

  59. “Yes, Mr. President, of course that’s legal.”

  60. So many people are just so damn predictable on these issues. They should just come out and say that there is nothing the President shouldn’t be allowed to do in the name of protecting us from terrorism.

  61. the problem is that ‘the war on terror’ doesn’t actually exist. and the emperor doesn’t have any clothes on! there, i said it, what a relief.

  62. The phrasing of the article is creating the logical fallacy of begging the question. Labeling someone a “suspect” is to automatically classify them as a civilian.

    Again, the question is: If the executive believes that it has identified a military unit operating on American soil can it attack it without warning? All other considerations aside, the answer is a definite yes.

    If the executive believes that a handful of guys are a hostile military unit, I’d say that with the massive military-industrial-homeland-security complex at their disposal they can capture the guys and find out what the fuck is going on. And given the government’s demonstrated incompetence, I’d like to have a higher standard than what the executive branch “believes” before they go kill a small group of people who, on the surface, appear to be ordinary civilians. At a minimum, they should have to explain to an independent government official why they think the people in question are in fact a hostile military unit. And, as it happens, the Founders had the brilliant idea of providing for a group of independent officials who can render judgement in such matters.

    Now, if all hell is breaking loose and the bombs are dropping and the tanks are rolling then, yeah, go in blazing without consulting the judges. But if all hell isn’t breaking loose, and all we have is the executive branch’s suspicions, maybe they should run it by somebody else first.

    The political cost of killing someone mistakenly will make the executive unwilling to act in all but the most dire circumstances.

    This administration got itself re-elected despite all manner of fuck-ups. I don’t think American Presidents fear the consequences of incompetence.

  63. Man, you guys have really gone off the deep end in this discussion. If you are basing all of your, “the president can murder anybody he wants” discussions on the story that spawned this thread, then I think you need to work on your reading comprehension. That story cited a few examples where the president is clearly justified in ordering the use of lethal force (the flight 93 example, “terrorists about to use a dirty bomb”).

    Nowhere in that story do I see an implication that the president CAN order the murder of a person on American soil. Maybe an even bigger point is this: what makes you think the president WOULD order a murder? It is far better, tactically, to capture a criminal than to summarily kill him.

  64. I hate to do this, but it begins to occur to me that we’re due for that shoe-dropping attack on our soil. I occasionally think al Qaeda decided to lay off to avoid losing another Muslim country to the U.S., but that’s probably wrong.

    Anyway, what happens then? Obviously, the argument will be that the government needs to take the gloves off even more. USA PATRIOT II, formal suspension of the writ of habeas corpus, etc., etc. I don’t think that’s a paranoid exaggeration, either. And I’m willing to believe that the Administration means well enough, though their lack of principles when it comes to the Constitution and our liberties is quite distressing. To avoid a Bush argument, let’s pretend the next attack happens under the next watch, with, say, John Warner as president.

    Frankly, even if New York gets nuked, I’m not willing to trade in large parts of the Constitution for another system. I’ll refrain from discussing the military response to such an attack; suffice it to say, I think we would just take over everything and tell the world to screw off if they didn’t like it. Arabia Disney, anyone? Fortunately, I think such a horrific attack on us is pretty unlikely. For now.

  65. wayne, I think the not-what-they-talked-about-in-the-article discussion started because of the headline. I ranted a bit, but then backed down some after reading the article. The only caveat I’ll add is that I find the whole discussion a mite fishy (in a nonparanoid way) in that the Administration needs no extra powers to do such things. The speculation at DOJ obviously must’ve gone further than the article related; otherwise, what’s the story? Cops can shoot bad guys in the act? That’s news?

  66. If divisions of Canadians were streaming accross the border, they would be lawful targets under the law of war and the military could just shoot any Canadian soldier. An Al Quada terrorist is an enemy combatant, not a criminal. If Bin Laden magically appeared on the whitehouse lawn, the marines gaurding the Whitehouse could just shoot him no questions asked. It is a wierd concept to get your mind around, but under the laws of war the number of the combatants doesn’t matter. All that matters is that they are combatants. The devil of course is in the details. Unlike Canadian soldiers, Al Quada fighters do not wear uniforms and blend into society. How do you know that this particular person is an Al Quada fighter? That can be a difficult question to answer. Theoretically, however, if the government knew for a fact that a particular person in this country was an Al Quada fighter, say Edger Padia for instance, they could just shoot that person no questions asked. Of course in reality you would prefer to capture that person rather than just kill him because you can get intelligence from a captured person. But, legally, killing him would be perfectly acceptable. Sounds strange but it is true.

  67. Pro Libertate:
    OK, let’s summarize then:

    Can the president order the execution of a person on US soil? The answer is no, and furthermore it would be dumb (no Bush jokes please) to do so. It is much preferable to arrest a terrorist.

    Can the president order the military to use all appropriate force to thwart an imminent attack on Americans? The answer is yes, of fucking course!

  68. wayne-

    I’m mostly arguing with Shannon Love, not the article. Shannon Love’s position may or may not be related to what’s in the article, but we routinely go off on tangents on this forum. If Shannon Love is advancing an argument that I’ll disagree with, I’ll do what internet forums were invented for: I’ll argue with her.

  69. “Theoretically, however, if the government knew for a fact that a particular person in this country was an Al Quada fighter, say Edger Padia for instance, they could just shoot that person no questions asked.”

    Actually, that is not accurate. As a former soldier, I can tell you that you are trained that you can NOT “just shoot an enemy soldier”. I will admit that a confrontation with an enemy soldier is likely to be a very hair-trigger experience, but US soldiers are not allowed, or encouraged, to execute anybody. For example, if you catch Edgar Padilla asleep in bed you take him prisoner. US soldiers are not murderers, they are JUST LIKE EVERYBODY ELSE ON THIS BOARD.

  70. Did somebody here call US soldiers murderers?

  71. T,

    By my reading of Shannon’s posts all she (or he) is saying is that the president has the authority to use military force to counter an imminent terrorist attack, i.e. the flight 93, or dirty bomb scenario. If my interpretation is correct then I agree with her.

  72. Real Bill-

    Yeah, who’d’ve thunk that a military lawyer would say that US soldiers simply shoot any enemy that they see?

    And wayne, I offer you my ritual congratulations for having post #69 in this thread!

  73. “Did somebody here call US soldiers murderers?”

    Yes!

    “…say Edger Padia for instance, they could just shoot that person no questions asked.”

    There seems to be the general belief here that US soldiers simply gun down enemy soldiers, willy nilly.

  74. T,

    Normally, I would have plotted and planned to do post #69, and probably been beaten to it. Wouldn’t you know that I was not even aware that 69 was coming around? Ah, serendipity!

  75. They should just come out and say that there is nothing the President shouldn’t be allowed to do in the name of protecting us from terrorism.

    …continuing that thought, I’d like to ask ’em, sometime…

    Is it okay for the President to mercilessly rape a terrorist suspect, if, in fact, he suspects that there’s a ticking timebomb? Is it okay for the President to mercilessly rape a terrorist suspect’s innocent, fourteen year old daughter if, in fact, he suspects that there’s a ticking timebomb? Is it okay for the President to mercilessly rape a fourteen year old boy, if, in fact, he suspects that the boy might be a terrorist and if, in fact, he suspects that there’s a ticking timebomb? …I just want to ask these people, is there anything–anything at all–that the President shouldn’t be allowed to do if, in fact, he suspects that there’s an f’n ticking time bomb?

    Is it okay for the President to slaughter the entire White House kitchen staff and serve them as the main course, with a nice chianti, at a state dinner if, in fact, he suspects that there’s a ticking time bomb? Is it okay for the President to practice polygemous beastiality in the White House if, in fact, he suspects that there’s a ticking time bomb? Can the President have his wife, children, dog Milly, three of the Supreme Court justices and a minority whip marched up to a wall and shot if, in fact, he suspects they’re terrorists and that there’s a ticking time bomb? Tell me, is there anything–anything at all–that the President shouldn’t be allowed to do if he suspects that there’s a terrorist and a ticking time bomb?

  76. Tell me, is there anything–anything at all–that the President shouldn’t be allowed to do if he suspects that there’s a terrorist and a ticking time bomb?

    1) Tax increase
    2) Gun control

  77. “Tell me, is there anything–anything at all–that the President shouldn’t be allowed to do if he suspects that there’s a terrorist and a ticking time bomb?”

    Actually, I think you left out the word, “reasonably”, i.e. if he reasonably believes… That is the test that is applied in a court of law for lethal force cases. The raping, and torturing, and bestiality I will treat as hyperbole.

  78. Good point, Wayne. I spent 4 years in the Infantry and we were taught that the rules are very strict when it comes to enemy combatants in, say, an ambush kill zone. If you’ve secured the area afterward and one of the enemy is still alive, guess what, you can’t just kill them. They would be POWs and would have rights.
    Of course, that was decades ago, and the Geneva convention is old fashioned, so who knows, maybe bayonetting prisoners is allowed now.

  79. thoreau,

    That was funny!

  80. As for all the “ticking bomb” arguments, let’s consider this mentality:

    “On the other hand, Sunstein says, the president would be on less solid legal ground were he to order the killing of a terror suspect in the United States who was not actively preparing an attack.”

    So…a terror “suspect” is dead and the president finds himself/herself on “less solid legal ground”. I’m sorry, that’s just insane.

  81. The political cost of killing someone mistakenly will make the executive unwilling to act in all but the most dire circumstances. All the slippery slope hysteria is just empty posturing.

    Like the public outrage over the “suspected terrorists” killed in London and Miami?

  82. “Like the public outrage over the “suspected terrorists” killed in London and Miami?”

    Think, little piglet, think.

  83. Theoretically, however, if the government knew for a fact that a particular person in this country was an Al Quada fighter, say Edger Padia for instance, they could just shoot that person no questions asked.

    For example, if you catch Edgar Padilla asleep in bed you take him prisoner.

    I hope you guys mean Jose Padilla. Edgar Padilla is a point guard.

  84. Well, since Jose Padilla is already in custody, we decided to use his brother Edgar as an example. Of course, if he is a point guard, then maybe we ought to just shoot him and be done with it.

  85. Of course, if he is a point guard, then maybe we ought to just shoot him and be done with it.

    Would that be a shooting foul?

  86. I’m busting my gut over this thread. It’s sort of like the urge to laugh that some people get at a funeral.

  87. Actually, I think you left out the word, “reasonably”, i.e. if he reasonably believes… That is the test that is applied in a court of law for lethal force cases. The raping, and torturing, and bestiality I will treat as hyperbole.

    Um…normally, I don’t take offense at anything I get here in these forums, but I take exception to this! How dare you, sir?

    …I worked very hard to make that comment 100% hyperbole, and I think I was entirely successful in that endeavor. If you don’t think so, well then you just don’t know good hyperbole when you see it!

    That having been said, there’s a grain of truth there about the Administration’s defenders being willing to give the President a free pass on, well, just about anything so long as it involves a terrorist and a ticking time bomb. If some Administration defender out there would like to step up and posit a potential scenario involving a terrorist and a ticking time bomb, one that involves circumscribing the President’s actions, I’d love to hear about it.

    …’til then, the White House kitchen staff as the main course sounds like a great “Flying Circus” bit to me. …and I’m holding on to all the subsidiary rights!

  88. wayne,

    Perhaps my attempt at irony (paging Mr Nice Guy!) fell on deaf ears. I was pointing out that given the complete lack of public outrage over the certainly mistaken “suspected terrorist” killings in London and Miami, it seems implausible that the prez’s newfound judge-jury-executioner power would be held in check by fear of political repercussions. That’s if one can get past the vomitous notion that the president has the authority to order any killing he thinks he can get away with.

  89. “…could Bush, for instance, order the killing of a Qaeda suspect known to be on U.S. soil? Bradbury replied that he believed Bush could indeed do this, at least in certain circumstances.”

    How about those mexican soldiers that cross into US territory while doing protection work for drug cartels? If they are in uniform can the prezz order them shot? If thery are not wearing their uniforms?

    How about if a Pakistani queada operative was wearing a Pakistani uniform on US soil?

    How about Jack Anderson, would it have been OK for the plumbers to kill him if Nixon ordered it?

  90. Give ’em hell, Shultzie!

    (I apologize in advance if you are offended by my use of the above diminutive.)

  91. For example, if you catch Edgar Padilla asleep in bed you take him prisoner.

    I hope you guys mean Jose Padilla. Edgar Padilla is a point guard.

    I think I just found the Padilla I would most like to take prisoner while asleep in bed. I would not be any more rough than necessary.

  92. Damn, Darkly, you found a good one there!

  93. So, what if the President thought the best way to protect our nation was to interrupt Stevo’s liaison with Kendra Padilla?

    I would take up arms to defend Stevo’s rights.

  94. If this summary-execution-for-terror-suspects thing becomes law, I’m sure the first few dead people will be Muslim Arabs who wouldn’t possibly be mistaken for One Of Us. But I think that would change before too long.

    I find myself actively “hoping” (is that the right word) that he next successful terrorist is a McVeigh or a Ted K. Really, I’d prefer no terrorist attacks, but I think that is unrealistic, sadly.

  95. Since some people base their counter-terrorism policies on what they see on 24, here are some things you should know:

    Jack Bauer uses #1 pencils on standardized tests…. Jack Bauer doesn’t associate with anything that is #2.

    Jack Bauers calender goes from March 31st to April 2nd, no one fools Jack Bauer.

    Jack Bauer once won a game of rock paper scissors using niether rock, paper nor scissors.

    Jack Bauer doesn’t miss. If he didn’t hit you it’s because he was shooting at another terrorist twelve miles away.

    There are no such thing as lesbians, just women who never met Jack Bauer.

    Jack Bauer arm once wrestled Superman. The stipulations were the loser had to wear his underwear on the outside of his pants.

    In 96 hours, Jack Bauer has killed 93 people and saved the world 4 times. What the fuck have you done with your life?

    When the boogie man goes to sleep, he checks his closet for Jack Bauer.

    When Jack Bauer goes to the airport and the metal detector doesn’t go off, security gives him a gun.

    If Jack Bauer lost his edge and became a total pussy his name would be Chuck Norris.

  96. Apparently we aren’t benefiting much by capturing Mouassaui. The courts won’t win the WOT, or any other wars. That is why the Constitution gives the President Commander in Chief powers. Once a suspect jumps up in court screaming “I AM al Qaeda” the bailiff should shoot him on the spot. Lest he eventually escape from jail, see Yemen, and kill millions of us.

  97. Y’know, if I was the paranoid sort, I might notice that President Bush only started defending–or even mentioning–his spying-without-warrants program after he got caught with his hand in the cookie jar. I might also observe that he seems to be mounting a preemptive defense on the idea of summary executions.

    If I were truly paranoid, I’d be inclined to think that Bush is expecting to get caught again soon….

  98. Here’s a scenario to mull over. The President believes that a private elementary school principal in Allentown is a Qaeda operative. In order to make sure he does not escape and to minimize risk to federal personnel, he orders the elementary school’s destruction while the suspect is there. Sadly, but inevitably, some of the other staff and about 50 pupils were in the school at the time and were all “collaterally damaged”.

    Would the President be on solid legal ground?

    Pakistan thinks that some terror suspects are holed up in a motel in Tampa. Pakistani operatives blow up the hotel, killing the suspects, and several other innocent people who happened to be in the motel. This was done with Presidential approval. Is the President on solid legal ground?

  99. Ken, my friend, you forgot the fava beans, though I congratulate you on your chianti selection.

    Don’t turn around, by the way.

  100. Y’know, if I was the paranoid sort, I might notice that President Bush only started defending–or even mentioning–his spying-without-warrants program after he got caught with his hand in the cookie jar. I might also observe that he seems to be mounting a preemptive defense on the idea of summary executions.

    If I were truly paranoid, I’d be inclined to think that Bush is expecting to get caught again soon….

  101. Lest he eventually escape from jail, see Yemen, and kill millions of us.

    How do you sleep at night?

  102. Not very well, with a four month old in the room. Go ahead and keep minimizing the threat. Once we’re hit by a WMD, the no WMD crowd will be discredited and disdained.

  103. Go ahead and keep minimizing the threat. Once we’re hit by a WMD, the no WMD crowd will be discredited and disdained.

    When this WMD hits us, will it have a little brass identity tag on it saying “I came from Iraq?” or “With love from Saddam”?

  104. Likely, it will have a Syrian postmark.

  105. Likely, it will have a Syrian postmark.

    Lucky for us we’re bogged down in Iraq, huh?

    The more I think about it, the more detrimental to liberty it becomes, basing civil liberties on something hypothetical that “might” happen. I went to the library a couple of days ago, and spent much time out of sight between those tall, flammable stacks of books; have you ever realized that all it takes is ONE GUY with a book of matches to turn that library into a mass funeral pyre? Hmm, we’d better change the laws to reflect this ease with which one man can kill a lot of people.

  106. Where one stands on the question of how large, intrusive or powerful government should be depends significantly on how one is willing to trade liberty for security. (Or at least perceived security.) The constitutional questions regarding the extent and limits of executive power, especially in time of (real or perceived) emergency, are interesting in purely academic terms but of little consequence otherwise. I state that not as an endorsement but as an observation.

    As I commented to Mr. Bailey shortly after 9/11, the libertarian agenda died for the foreseeable future when the WTC collapsed. People are willingly handing over whatever was left of their liberty to prevent a threat that so far, in actuarial terms, is no greater than the annual deaths caused by the flu or traffic accidents. Doubtlessly, some day some terrorists will indeed gain access to tactical nuclear devices and use them. It isn’t a matter of if but only of when. Short of that, however, the real threat posed by real terrorists today has been, to put it mildly, outrageously exaggerated.

    As for circumstances under which a policeman or a soldier can shoot someone, it should be noted that any police shooting is reviewed to determine whether lethal force was justified and that soldiers have fairly explicit rules of engagement and are also subject to review. The real question above was what the president could or could not order, which goes to whether and under what circumstances the president could be held accountable short of impeachment proceedings or a clear ruling from the Supreme Court. But that is always the case for any presidential action whatsoever, isn’t it?

  107. Go ahead and keep minimizing the threat.

    I will, thanks!

    I cannot believe that people are so pants-shittingly scared over people whose main weapons so far have been 1) homemade bombs and 2) our own airplanes, more so than they were when the USSR had several tens of thousands of megatons worth of nukes pointed at us.

  108. Assassination squads roaming the country offing anyone that can palusibly be claimed *afterward* to have been a suspect ought to scare the hell out of us all.

    SWAT teams, anyone? Throw-downs? Ring a bell?

  109. Phil,
    I was, and still am, pants-shittingly scared of the nukes in Russia. Glad you added the ‘so far’ to your post.

  110. Mr Ard, how do you leave your house every morning, what with all the dangers surrounding you?

    Seriously, people are so afraid of everything, it boggles my mind as to how they survive.

    Being on this planet has been such a privledge, of course I don’t want to give it up, especially not to a group of religious nutjobs, but at the same time I don’t worry about when I’ll be forced from my mortal coil. Does it really matter? You do what you can to minimise your chances of dying, but to varrying degrees. I still get onto airplanes, drive to work everyday, and being somewhat of an A-type personality, I engage in some risky behaviours like riding motorcycles, jumping out of airplanes, and playing ice hockey.

    Why should I be worried enough about some religious nutjobs to give up my way of life? I love it!

  111. Lowdog, I participate in plenty of risky behaviors. Fortunately, since I’m white, I don’t get pulled over and busted for them. Also, my boy’s new dirt bike has a thousand times more chance of killing him than nukes or chemical weapons. However, that is no reason to stop monitering, and yes, killing those who’s aim is to kill us, whether they’re in Pakistan or Poughkipsee.

  112. Ok, that’s great. Now you’ve admitted that you should be more worried about dirt bikes than terrorists.

    So why, again, should I be worried about terrorists enough to give up due process or any other freedom that makes this country great?

    That’s all I’m asking.

  113. It is all about risks and rewards. To me, the risk of getting busted for one of my petty crimes because of a warrentless wiretap, is less than the reward of still having an economy left to ply my trade.

  114. It is all about risks and rewards. To me, the risk of getting busted for one of my petty crimes because of a warrentless wiretap, is less than the reward of still having an economy left to ply my trade.

    What about the risk of summary execution because something about you made you a “terror suspect”? Back in the 90s, being a white male member of a Western gun club would have been enough to put you on the shit list.

  115. I would say your risk of being busted for one of your petty crimes due to a warrentless wiretap (or any wiretap, for that matter) is probably higher than the possibility some terrorists destroy our economy. (Really, aren’t you giving them way too much credit?)

    And as Jennifer postulates, without real boundries concerning what, exactly, a terrorist is, how can you be sure that your petty crimes won’t soon or someday become a “terrorist act” and you’ll be in some real trouble, not from terrorists, but from your own government?

  116. How many anthrax envelopes would you need to hear about before you stop opening your mailbox, Lowdog? It wouldn’t take much to create massive economic disruption. The western gun club option sounds about right in your second scenario.

  117. Pro Liberate said,

    “Therefore, with an inefficient government and an open society, we are particularly vulnerable to terror tactics. Given that we are arguably the most successful society in history, I’m thinking what we don’t want to do is destroy or even damage that society because a few nutjobs managed to kill a few thousand people. We did the right thing after 9/11–we took the war to the people who shared responsibility for the attack.”

    We could have done even better than that, and not even gone to “war” at all. We could have pursued Osama as a “pirate.” If the Taliban interfered or attacked our people in any way, then we could have gone to war to take out that regime, but the key should have been to get Osama and his goons — which the American people falsely believed was true in supporting the Afghani adventure.

    Unless it is state-sponsored (and we have PROOF of such sponsorship), terrorism is little different from gangsterism. We metaphorically declare “war” on gangsters, but the constitution and normal law still apply in our “prosecution” of it. Just so, going after terrorists is similar to — and should be subject to the same strictures as — going after gangsters who may also have and affiliate organizations in several countries (the Mafia, for example).

    PL’s first point that I cited above is very important. Our society is consciously, deliberately different than the societies that went before it. Maintaining those differences despite hardship and peril is our unique challenge. If we organize our affairs like any other country, if we treat our own people and our enemies as any other country does, we are no longer different in any way about which we should boast or be proud. If such organization and such treatment result in a more powerful, perhaps more efficient government and a markedly less open society, along with a corresponding loss in the prosperity that the opposite has brought us, then it’s game over. We will have lost the struggle in the most profound way possible, going into the history books as just another failed political experiment.

    The United States must behave differently in the world, if it is to retain what makes it unique and worthy. The fact that most politicians, and most people, not only fail to see this point but often actively disagree with it, is one cause for fear that we will lose any claim we ever had to “unique worthiness.”

    Ask yourself: what domestic policy, what foreign policy are compatible with a deliberately inefficient government and a generally open society? Do our present policies satisfy the requirements? If not, which set of things must yield?

  118. How many anthrax envelopes would you need to hear about before you stop opening your mailbox, Lowdog? It wouldn’t take much to create massive economic disruption. The western gun club option sounds about right in your second scenario

    How does this example apply to the notion of the summary execution of suspects, James?

  119. I’ll try to connect the dots. Perhaps instead of summarily executing suspects the president could summarily consign them to working in a post office?

  120. I would have to hear about a aweful lot of anthrax envelopes before I became worried enough to stop checking the mail.

    And what Jennifer and Mr Ridgely said…

  121. Good question. Dropping off poison mail is not quite as obvious as rushing a cockpit with box-cutters. Summary execution without evidence that an attack is in progress is probably more power than the president needs. But, then again, had we knocked off Atta Sept. 10th, 2001, who knows?

  122. But, then again, had we knocked off Atta Sept. 10th, 2001, who knows?

    Can you imagine a scenario where an attempted capture on US soil would have been impossible but killing would have been easy?

    And don’t say “Well, what if he was on an island in a lagoon with sharks that have laser beams on their foreheads and it’s impossible to get across?” In some crazy scenario like that, where he’s unreachable, he’s also pinned down and won’t be able to do what he was originally planning to do.

    I cannot think of any scenario where summary execution is feasible but a capture attempt (with allowance for self-defense shooting during the attempt, of course) is not. Nor can I think of any scenario where summary execution is preferable to capture.

    Some people just like the thought of killing bad guys. Those people should play more video games and leave national defense to grown ups.

  123. In another development, The German courts have released a convicted member of the cell that planned 9-11, upon appeals.

  124. If by capture you mean Gitmo, and not the court system, I’ll buy that.

  125. In another development, a member of the Lackawana 6 terror cell has just broken out of prison.

  126. My bad, it wasn’t one of the Lackawana 6. It was one of the Yemeni escapees, who was known as Lackawana seven or eight.

  127. Where the fuck did this simpleminded troll come from?

  128. I’ve been here as James for years, but the new James is so much smarter than I am, I decided to come clean. Anyway, seeing as that I have almost completely backed off my killing argument, maybe I’m just having a little fun stirring up the coals.

  129. You nutjobs are back fixated on the president ordering summary executions. If, as Thoreau said, this is just for the simple pleasure of arguing amongst yourselves, that is OK and even fun. But, if any of you took that message away from the article that spawned this thread then, I repeat, you really need to work on your reading comprehension.

    James Ard, I was sort of in your corner on this argument until you opined that your whiteness somehow exempts you from the law. If you believe such a thing then please support your position with facts.

  130. Wayne, there’s no doubt the authorities are targeting blacks and Mexicans in their highway drug interdiction efforts in my neck of the woods. I see too many hispanics pulled over for following too closely, searched and busted to not believe there isn’t profiling going on. I think it is a damned shame, which is what I was alluding to in my post

  131. “I see too many hispanics pulled over for following too closely, searched and busted to not believe there isn’t profiling going on. I think it is a damned shame, which is what I was alluding to in my post.”

    Busted for what, being non-white?

  132. Wayne,

    I don’t what military you were in, but in the one I am in, they is something called a declared hostile force. Once someone is a declared hostile force, you can just shoot them. In fact you are encouraged to do so. Granted, if someone surrenders you cannot under the laws of war, just shoot them. Until they surrender or are out of combat (wounded and no longer a threat), they are a lawful target. You shoot them on site. Al Quada has by Congressional resolution been declared a hostile force. The military can just shoot them, unless of course they are out of combat or are attempting to surrender. You statement about not just shooting the enemy is a common barracks lawyer interpretation of hostile force and not true. It is a common myth right up there with the “you can’t use a .50 cal on personel because of propotitionality” myth.

    That said, Al Quada is a guirilla force. Therefore, when they are not actually fighting, you cannot shoot them under the Protocals to the IIIrd Geneva Convention. You can only arrest them. So, I actually was technically wrong in my first statement. Padia, is a guirilla fighter and was not engaged in fighting at the Chicago airport, so the police could not have just shot him. They can, however, arrest him, and try him as a criminal.

  133. “It is a common myth right up there with the “you can’t use a .50 cal on personel because of propotitionality” myth.”

    It is interesting that you bring up the .50 cal thing. My son is in the US Army tight now, and just graduated from basic training on Dec 1, 2005. He told me that in his basic training he was specifically taught that he can NOT shoot the .50 cal at personnel, he can only fire the .50 cal at equipment (trucks, tanks, aircraft, etc). I guess the Army has made this particular myth part of their core training in basic training.

  134. I had a friend in college who was a Marine or in the Marine Reserves. He drove an armored vehicle of some sort, armed with .50 cal. machine guns and grenade launchers. According to him–this was while he was serving–he could fire the grenade launchers at people but not the machine guns. Now I’m sure that they use some creative fictions to deal with the harsh reality of combat (“I was shootin’ at dem dar canteens”), but I doubt seriously that this story is a complete myth. Though I suppose even the military might have its own urban legends.

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