Who Says Assassination Targets Took Up Arms Against the United States?

Yesterday, in the course of defending the Obama Administration's policy of targeted killings of accused terrorists, including American citizens overseas, White House spokes-lackey Jay Carney vaguely cited "ample judicial precedent" for snuffing enemies of the United States. He did, however, gloss over a rather long and storied history of something called "due process" during the course of which the government is supposed to prove it didn't grab the wrong poor bastard, either by accident, or through malice. Here's how the exchange went:

Q    But let's be clear.  This is giving a legal justification for killing American citizens without any trial whatsoever, without any evidence.

MR. CARNEY:  Again, I would point you to the ample judicial precedent for the idea that someone who takes up arms against the United States in a war against the United States is an enemy, and therefore could be targeted accordingly.  That's I think established in a number of cases, and I'm not even a lawyer and I'm aware of that.

But how do we know the someone is being snuffed because he actually "takes up arms against the United States" and not because some facial recognition software went haywire or, worse, because he's inconvenient or offensive to U.S. officials in a way that doesn't legitimately command punishment? All we have is the word of the administration that enemies of the United States are being targeted for death. But the case hasn't been proven in any way that's open to scrutiny.

Yeah, due process is hard because you have to show your work and convince (supposedly) skeptical observers. It's supposed to be that way.

Comments

[Sevo]

It would be nice to see this "ample judicial precedent" to see if it applies.

[Aresen]

I am sure the Nazgul SCOTUS will find it if required.

[Bill Dalasio]

It's a tax! - John Roberts

[Hyperion]

Penaltax!

Some filthy rich person with an income who is not totally dependent upon the state could be hiding a jar of coins under their bed.

Get these drones into the hands of the IRS now!

NEED MOAR REVENUE!

[The Late P Brooks]

someone who takes up arms against the United States in a war against the United States is an enemy, and therefore could be targeted accordingly.

"John" is Jay Carney?

[John]

So that is not strictly speaking true? You manage to be retarded on this subject even though you are on the right side of it.

[Auric Demonocles]

Brooks is right. You were making the same argument yesterday: It's OK to kill these guys without a trial because they are combatants. How do we know they are combatants? Because we say they are.

[John]

No Brooks is an idiot. I do we know anyone who is not wearing a uniform is a combatant? Do you plan to give full trials to anyone not wearing a uniform? And when you do, what incentive will there ever be to fight by the rules of war? Why wear a uniform and risk being killed when you can be a terrorist and get a full trial before anyone will touch you?

[tarran]

Holy excluded middle Batman!

[John]

I think there is a middle ground. See my post below on doing some kind of a tribunal on this. But in REASON land anything short of a District Court trial is just me being Red Tony and getting my war boner on. This board is full fucking retard on this subject and always has been.

[PS]

I have a solution to that.

Don't fight asymmetric wars. If a country is fucking with you so badly that you need to declare war on them, then go to war with them, and do it full scale, no police action, no nation-building, no fucking peace-keeping. If they are harboring terrorists that are fucking with you--and they do nothing or can't control them--ditto.

[John]

Don't fight asymmetric wars.

that is a great idea. Now if you can just get our enemies to stop fighting asemetric wars against us, you will really be onto something.

Now you can turn an asymetric war into a conventional war. You just kill the entire enemy population. But I don't think that is the result you are looking for.

[PS]

No, it's exactly the result I'm looking for.

If the US would only fight full-scale wars, we'd have to be really committed to fight them, like bomb Hiroshima committed. And once you let slip the dogs, then let them do their job, which is raining holy terror on the enemy.

And anyone else who saw that commitment would think twice about pushing the US to that point.

Being able to fight these half-ass police action bullshit wars allows politicians and citizens to have their cake and eat it too.

[PS]

It's purely hypothetical of course, because there's now that the police action has been used repeatedly there'd never be the political will to do this sort of all-or-nothing solution.

[$park?]

We've always been at war with Eastasia terrorism.

[Auric Demonocles]

If the US would only fight full-scale wars, we'd have to be really committed to fight them, like bomb Hiroshima committed. And once you let slip the dogs, then let them do their job, which is raining holy terror on the enemy.

And anyone else who saw that commitment would think twice about pushing the US to that point.

This would be President Demonocles' foreign policy. We don't go to wars often, or start them at all, but my God, we will end them.

[$park?]

We don't go to wars often, or start them at all, but my God, we will end them.

So you spineless pussies are willing to give the terrorists a free attack before you'd be willing to do anything about it.

/John

[PS]

This would be President Demonocles' foreign policy. We don't go to wars often, or start them at all, but my God, we will end them.

How about a Constitutional amendment: No police actions, nation building, peace-keeping, or wars on nouns.

I can dream, can't I?

[$park?]

Now you can turn an asymetric war into a conventional war. You just kill the entire enemy population. But I don't think that is the result you are looking for.

PUNY ARGUMENT! JOHN SMASH!

[R C Dean]

Actually, I'm all in favor of fighting asymmetric wars.

The kind that leave a generation of our opponents with no stomach for provoking us again. You know, like Germany and Japan. Compare and contrast post-WWI Germany with post-WWII Germany; at the end of the day, was leaving Germany pretty much intact after WWI really the humane thing to do?

This namby-pamby "no disproportionate force" ROE, followed by years of corruptocrat "nation-building", doesn't seem to be working. Why not try something different?

[Almanian.]

All we have is the word of the administration that enemies of the United States are being targeted for death.

Uh. NO, JD. We have it on the word of the MOST BESTEST TRANSPARENT ADMINISTRATION IN THE HISTORY OF MAN's word.

Why do you support teh terrrrrrrrrristzzs, JD?

[$park?]

Come on guys, we're at war and sometimes in a war shit happens. Can't we all just drop it and move on to more important matters. I hear someone in North Korea made a video...

[Tim]

Obama is the Chosen One.

[John]

This is a valid point. And there are lots of ways to deal with this issue short of having a federal trial. You could have a tribunal of military officers review every case and make a determination. You could have federal judges on such a panel or even members of Congress.

People need to be realistic about this. The American public is not going to agree to making the President go try someone in absentia in federal court every time. That may suck but it is true. So instead of dying on that hill and ending up with a system with no oversight, why not be creative and create something better than this?

[califernian]

You could have a tribunal of military officers review every case and make a determination

Good god.

[John]

The country has had military tribunals numerous times over the years. In fact, many other countries such as the UK and Peru and Sicily set up specialized terrorism courts. There is nothing sinister or out of the ordinary about such things. They are simply compromises made during difficult situations.

But what the fuck, go full retard on this. Demand full US District Court trials or nothing. That way you can ensure that we get no oversight whatsoever.

[Capt Ace Rimmer]

Not to even mention that what passes as "due process" in this country is a poor excuse for due process so the lack of any due process is fucking mind blowing.

[R C Dean]

Ya know, at some point doing what you need to do to snuff our enemies does more damage to the Constitutional Republic than those enemies are worth.

Much as I love to see bona fide AQ members get greased, I think we have passed that point. The Thomas Moore quote comes to mind, as does Me today, you tomorrow.

[John]

I don't see how we have passed that point. If we have, we passed it a long time ago, like pretty much from the beginning of the Republic. I would say the Alien and Sedition Acts were a lot worse than greasing AQ members, even if they are citizens. During the civil war, the US Army shot looters on sight and hung partisans with impunity.

This is a problem but it is hardly the first or the worst problem the country has ever faced.

[geekster]

See, it's comment like that that will make me rendition your ass to Yemen, blow you up, then spend a few hours putting turbans on pictures of you in Photoshop and creating a jihadi web posting history.

Signed,
Barack Obama

[Bobarian]

This post made me laugh and cry at the same time...

I would have started it off with:

Friend,

See, it's comment(s) like that that...

Because all the missives I get from the One start off like that.

[geekster]

Apologies for the grammatical errors.

Yeah. It's thoughts like that that make me want to smack most 'progressives' I know right in the mouth with a 2x4. I am, by no stretch of the imagination, a doctrinaire libertarian but it's really starting to get deep.

Why do you NEED an assault rifle? Do you seriously think the United States is going to become a tyranny?

You mean like a country where the government controls the economy and maintains the right to indefinitely detain, torture, or murder anyone it wants to, including it's own citizens, on insultingly weak pretenses?

You watch too much Fox News!

And... scene.

[Groovus Maximus]

OT Counselor, speaking of The Iron Law, I have completed my project of The Groovy Medical Iron Law. Would you care to take a look-see to test for logical integrity?

Also, Madison's Constitutional Republic is is dead.-(((

[R C Dean]

Sure, post it and I'll give it a look.

[Groovus Maximus]

Thank you. I'll send it to you first. I had a few inspirations, like you, some commentariat here, and Dr. PG since she adores chess so much. Three of them came directly from med school.

[The Late P Brooks]

that is not strictly speaking true?

Strictly speaking, it is true that there may occur a situation in which police officers serving legitimate warrants may in actuality be threatened by a suspect's trained specialty breed guard dogs.

[John]

If you take up arms against the country, you are an enemy and said country can take up arms against you.

The devil of course is in the details. But don't worry about that. That is too hard. Better to clutch your pearls instead.

[Virginian]

If you don't think American citizens being deliberately killed without trial is a topic of concern, then you're pearl clutching?

Dude, this is why people call you Red Tony.

[Virginian]

Aghh scratch the don't.

[John]

Thousands or even millions of people have been killed in previous wars without "trial". That is called war.

It is one thing to say that Al-Alwaki hadn't taken up arms and therefore we had no right to kill him. I would tend to agree with that statement. It is quite another to say that it didn't matter if he had because he was an "American citizen" as if every American is entitled to take up arms against the government without any risk of being killed in combat, which is what Brooks is saying.

Yes, if you make war against the US you are legitimate target, I don't care if you are a citizen or not. That much of what Carney said was true.

Call me whatever you like. It doesn't make you any less of an idiot who manages to fuck up a winning argument. If you don't like someone pointing out facts you don't like tough shit. Life is really hard when you are stupid.

[$park?]

Life is really hard when you are stupid.

Take it from someone who has firsthand knowledge.

[Virginian]

But we're not talking about making war. We're talking about making YouTube videos.

John Walker Lindh, for example, made his choice and suffered the consequences for it. Al-Alwaki is still entitled to his 1st and 5th Amendment rights. Or was. Because he got blown up by a missile. But the President said it was ok so no problems.

[John]

But we're not talking about making war. We're talking about making YouTube videos.

Sure. And that is why I think the Al Alwaki killing was illegal. But that doesn't mean there can't be other killings that would be legal.

[Auric Demonocles]

If you take up arms against the country, you are an enemy and said country can take up arms against you.

We aren't arguing that point now. We're arguing that you have to prove this person has taken up arms against the US.

[John]

We aren't arguing that point now. We're arguing that you have to prove this person has taken up arms against the US.

Brooks is arguing just that point. See above. He sites Carney saying just that and then acts like it isn't true.

Yes, you are absolutely right that there should be some level of proof that the person took up arms. But Brooks would deny even that. And that is why is a moron on this subject.

[The Late P Brooks]

If you take up arms against the country, you are an enemy and said country can take up arms against you.

Get your fucking story straight.
Or are you going to just stick with declaring every square inch of the planet a battlefield, and every single person you don't agree with an armed combatant actively waging war against America?

[John]

I would say a battlefield is one in which people have taken up arms against you. Do guns only work in this magical place known as a "battlefield"? I think the guns make the battlefield not vice versa. My story is perfectly straight.

You in contrast, have no story beyond the Administration says it so it must be wrong no matter fucking self evident it is.

[John Thacker]

I think the guns make the battlefield not vice versa. My story is perfectly straight.

So your answer is, yes, every square inch of the planet is a battlefield, since we can send our guns there. There's certainly no requirement in these policies that the person being attacked be currently in possession of a gun, so you couldn't have meant that it's their guns creating the battlefield.

The controversy here really isn't about drones. It's about these policies crossing the line from war (where killing American citizens fighting for the enemy is perfectly fine) past police actions to pure assassination, and assassination with a fair amount of collateral damage.

Now some people are fine with assassination of various civilian but propagandist members of groups, and I can easily imagine practical cases for it. However, I think that the level of due process Constitutionally required is a little bit higher when assassinating named targets, particularly when US persons.

[$park?]

every single person you don't agree with an armed combatant actively waging war against America

If only it were that simple. See, sometimes actual crazy extremists make actual threats against America. When this happens it's just bluster and can be dismissed as pure nuttery without needing to send in the drones. However, now and then the REAL bad guys will attend a wedding or hide in a mud hut, these are the dangerous ones that must be killed before they sail to our shores and nuke one of our cities.

[John]

That is right sparky. US Drones have only ever killed children and wedding guests. They have never once actually gotten anyone involved in combat or actual terrorism. Nope. They actually read the wedding announcements in the Islamabad Newspapers to come up with their target lists.

You are onto them.

[Hyperion]

John, where do we draw the line?

When the government starts declaring war on 'domestic terrorists', you know, evil people with more than 7 days worth of canned goods in their home, or who drive around with Ron Paul bumper stickers, and start targeting those folks, with drones. Is that ok too? What if one of your kids is collateral damage in one of those strikes? Is that ok too?

That's where we are headed, it's just a matter of time.

[John]

The same place we draw the line with the rest of the military, at the US border. As far as overseas goes, unless it is absolutely impossible to capture the person, then the military should never kill US citizens, period.

[Virginian]

You're 20 years too late on that one man.

[Mechafenris]

..the military should never kill US citizens, period.

You only need that bit for it to be true.

[Adam330]

As far as I'm aware, the administration has presented no evidence that anyone it has killed with a drone strike was involved in combat or actual terrorism. In fact, where such evidence has been requested, including in lawsuits, the administration has refused to disclose it. Are you aware of a place where they presented such evidence? On the other hand, there is plenty of evidence that the strikes have killed children and wedding guests?

[John]

Yes. Just google it. When they have good evidence, they love to tell the world this or that leader was whacked.

These guys were legit targets

http://www.miamiherald.com/201.....tedly.html

And so was this guy

http://www.huffingtonpost.com/.....67076.html

And hundreds of others. Even the administrations worst critics admit that they get the right guy 70% of the time.

[Adam330]

I don't see any evidence that these guys were currently terrorists in these articles. The closest thing to evidence is that they appeared in videos. The guy in the first article is alleged to have supervised some attacks and planned attacks, but no actual evidence is presented for the allegations. The guy in the second article apparently was a religous leader and involved in the media wing. No mention of him even allegedly being involved in any actual or planned terrorist attack.

Maybe these guys were terrorists, but my point stands that the administration has not come forward with any evidence proving that. Getting the guy they were targeting is certainly not sufficient.

[Scooby]

70% would get them a Gentleman's C, if not for the fact that they should be graded down for the 30% that includes innocent children, medics, etc.

[Virginian]

There have definitely been terrorists killed. The issue is that the government fires a missile into a house that contains:

1 Mid level shot caller, three spear carriers, two teenagers in training, three women, seven children younger than fourteen years old, two old people and four or five people that were just walking down the street.

The moral calculus is fucked up.

[Cavpitalist]

That is right sparky. US Drones have only ever killed children and wedding guests. They have never once actually gotten anyone involved in combat or actual terrorism.

Dear God, this is a shitty, immoral, cowardly asshole of an argument. I don't know you, but if you really think this is a legitimate argument, you're a shitty, immoral, cowardly asshole of a human being.

If we don't a.) have an authorization to wage war IN THE SPECIFIED COUNTRY we're shooting missiles into, b.) have an IMMINENT (dictionary definition, not 'we have no proof it isn't coming at some point') threat to neutralize that can't be neutralized in any less-violent manner, and actual PROOF that we're killing militants, than killing ONE innocent child for every 100 "terrorists" is the murderous act of a shitty, immoral, cowardly asshole of a nation. It's random fucking killing, on the pretense that at least some of those people killed needed to die anyway, and we are too lazy and chickenshit to take our time and do it the right way.

Drug laws sweep up a bunch of shitty people, but they're still immoral and chickenshit. Your entire theory on waging war is chickenshit and cowardly to the extreme.

I never had a problem fighting in Iraq, because I knew who the bad guys were. The bad guys were the guys who purposefully blew up innocents to help themselves win the war. Those people deserved to die, and I'm happy to say that many of them did. You are their philosophical brother.

[The Late P Brooks]

Better to clutch your pearls instead.

I'm not the one with monsters under my bed, pal.

[Jordan]

Top. Men.

[Ron]

"What difference does it make anyway"
See this retort is good for everything as long as your in power that is.

[Adam330]

"Again, I would point you to the ample judicial precedent for the idea that someone who takes up arms against the United States in a war against the United States is an enemy, and therefore could be targeted accordingly. That's I think established in a number of cases, and I'm not even a lawyer and I'm aware of that."

Is there any case supporting this where the person has not joined the armed forces of another state? That's a pretty critical detail given that killing enemies is only justified under the laws of war, which apply only to armed conflicts between states.

[John]

Yes. Herbert Hans Haupt was a US Citizen who joined the German Army in World War II an was captured in the US on a sabotage mission. He was tried by military tribunal and executed.

http://en.wikipedia.org/wiki/Herbert_Hans_Haupt

[Adam330]

Not sure how that is responsive. He joined the armed forces of another state. I asked "Is there any case supporting this where the person has not joined the armed forces of another state?"

[John]

I think joining an international terrorist organization is the same as joining the armed forces of another state. If you join Al Quada, you are doing so to make war on the US.

[Adam330]

I think you are wrong. The general laws of war apply only to armed conflicts between states. The only portion that applies to conflicts with non-state actors is common article 3 of geneva convention. That article only permits targeting of people who are actively taking part in hostilities.

In addition, the Haupt case is quite different because he was subject to a military tribunal where the government had to prove his guilt. Haupt wasn't "targeted." He was arrested, tried, and executed.

[Auric Demonocles]

That was possibly the worst example you could have tried to use.

[John Thacker]

Clearly he was going to refer to the assassination of Ezra Pound, except that in that case it proved feasible to capture him instead.

[Mechafenris]

He was still captured and given a trial. He wasn't zapped in his home (regardless of the time period, they didn't "shoot on sight" and he got his due process as provided by the Constitution, even if it was a military tribunal.)

The problem here isn't blowing shit up (we do that anyway)... the problem is WHO GETS TO SAY who gets blown up. No one is saying how Obama "makes sure" it's the bad guy. It is nebulous and open to "interpretation"... that last part should make you shit your pants because it is not only illegal, it is systematically dismantling the Constitution and undermining the rights of ALL human beings... regardless of where they hang their hat (or turban).

The rights enumerated in the Constitution are not granted by the Constitution. We have them by being born... the government is not allowed to cross that line... ever.

This is pure and simple the beginning of "quashing dissent"... because power given is never relinquished by evil men.

[The Late P Brooks]

It is quite another to say that it didn't matter if he had because he was an "American citizen" as if every American is entitled to take up arms against the government without any risk of being killed in combat, which is what Brooks is saying.

ORLY?

[Bill Dalasio]

Of course, as I think John may have suggested yesterday, it's hard to claim that either of the two most prominent cases of this policy being used - al-Awlaki or Samir Khan - that those assassinated had been "taking up arms".

[John Thacker]

Yes, it's closer to imagining the US assassinating Ezra Pound during WWII on FDR's whim.