Repulsive progressive hypocrisy

[Vattel]

A core plank in the Democratic critique of the Bush/Cheney civil liberties assault was the notion that the President could do whatever he wants, in secret and with no checks, to anyone he accuses without trial of being a Terrorist – even including eavesdropping on their communications or detaining them without due process. But President Obama has not only done the same thing, but has gone much farther than mere eavesdropping or detention: he has asserted the power even to kill citizens without due process. As Bush’s own CIA and NSA chief Michael Hayden said this week about the Awlaki assassination: “We needed a court order to eavesdrop on him but we didn’t need a court order to kill him. Isn’t that something?” That is indeed “something,” as is the fact that Bush’s mere due-process-free eavesdropping on and detention of American citizens caused such liberal outrage, while Obama’s due-process-free execution of them has not. . . .

Is there even a single liberal pundit, blogger or commentator who would have defended George Bush and Dick Cheney if they (rather than Obama) had been secretly targeting American citizens for execution without due process, or slaughtering children, rescuers and funeral attendees with drones, or continuing indefinite detention even a full decade after 9/11? Please. How any of these people can even look in the mirror, behold the oozing, limitless intellectual dishonesty, and not want to smash what they see is truly mystifying to me.

read more: http://www.salon.com/writer/glenn_greenwald/

[1ProudAtheist]

1. Repuliclown Hypocrisy

It is in every woprd that they say, every thought that they have, and every right that they want to take away.

[there but 4 fortune]

58. NDAA was signed by the leader of which party?

Wanna call names? Demiclowns, according to your logic.

[stevenleser]

2. There is no hypocrisy. Those who were for or against it when Bush did it are still in those camps

The hypocrisy does not exist.

[Vattel]

7. Of course it exists, although we can debate how much of it exists.

My concern is more with the policies than the hypocrisy, though, so I won't argue with you on this.

[stevenleser]

21. Of course it doesnt exist. You cannot link to any examples or you would have done so

You and various others have invented this idea of hypocrisy as a fun talking point, but you have no backup.

[msanthrope]

53. I was completely for a drone strike of Osama Bin Laden. Clinton tried, Bush didn't bother, and

Obama got 'em.

I would have been happy with any of them doing it.

[jeff47]

3. False

“We needed a court order to eavesdrop on him but we didn’t need a court order to kill him. Isn’t that something?”

False.

We need a court order to eavesdrop on him in the United States. No court order is necessary if he's outside the US and talking to someone outside the US.

had been secretly targeting American citizens for execution without due process

False

There is no due process required for any action taken outisde US soil. The executive branch can kill anyone they want any time they want on foreign soil. US Citizenship of the target doesn't change that. This is because the Constitution gives foreign policy entirely to the executive branch. And it has been the case since the founding of the Republic.

or continuing indefinite detention

False.

Congress is the entity keeping Gitmo open by refusing to allow Obama to apply due process.

How any of these people can even look in the mirror, behold the oozing, limitless intellectual dishonesty, and not want to smash what they see is truly mystifying to me.

1. By realizing canards like "US Citizen!!!!" have been created out of nothing in an attempt to weaken Obama's foreign policy record.

2. By believing that those who flee from due process are voluntarily choosing to exclude themselves from due process.

3. By placing our anger over Gitmo at the correct target, Congress. You can't decry Obama having "dictatorial power" and then demand that he exercise dictatorial power and ignore Congress.

[Vattel]

5. You are incorrect:

"There is no due process required for any action taken outisde US soil. The executive branch can kill anyone they want any time they want on foreign soil. US Citizenship of the target doesn't change that. This is because the Constitution gives foreign policy entirely to the executive branch. And it has been the case since the founding of the Republic."

The Constitution doesn't give foreign policy entirely to the executive branch. It gives most war powers to Congress, it gives the Senate and the President together the right to make treaties, etc., etc. Moreover, the President's powers to conduct foreign policy and wage war are limited by Constitutional rights. Which of those rights extends to citizens outside of US territory is very controversial, but it would be obscene if citizens could be murdered at the executive's discretion simply because they were outside of the country.

[jeff47]

8. Citizens aren't magical beings

The Constitution doesn't grant special due process rights for citizens. You seem to believe non-citizens can be executed by the executive branch. Well, non-citizens and citizens are entitled to the same (lack of) due process rights.

As for Congress's foreign power, that's just to declare war and to approve, but not negotiate, treaties. The treaty part because they are, more or less, amendments to the Constitution ("Supreme law of the land&quot .

The Constitution was written before the invention of "Limited War", so it's not completely clear that Congress has to approve anything that isn't total war. Frequently the executive branch will get Congressional approval before any significant fighting, but that is more about keeping Congress happy than a Constitutional requirement. And a single drone strike is quite below the modern definition of "war".

Plus there's a lot of precedent that the President can do all sorts of targeted killing without getting Congress to approve. The CIA was quite busy during the cold war, for example. In the aftermath of that Congress passed laws demanding that they be briefed after such actions, but no one has tested the constitutionality of those laws. Even assuming they are constitutional, briefing doesn't actually give Congress any power over the activities. Their response to something objectionable would be limited to de-funding or impeachment after-the-fact.

[Vattel]

9. Wrong on several points.

First, I am in favor of due process for noncitizens and citizens alike.

Second, the Founders gave all of the powers of war except the CIC power to Congress.

Third, treaties are not like amendments to the Constitution. Where a treaty conflicts with the Constitution, the Constitution overrides the treaty.

Fourth, the Founders had a very broad concept of war. For them a state of war exists whenever there is a willingness to achieve some end through force. They intended that only Congress would have the power to put the nation into a state of war, and the attempt to suggest that they intended only that Congress was to have the power to create "total war" is completely foreign to their use of the term war. This is so painfully clear from the historical record that it is amazing that idiots like Yoo argue otherwise.

Finally, the fact that Presidents beginning with Truman have consistently usurped Congress's war powers and violated civil liberties for the sake of national security merely shows that Presidents are willing to act in ways that civil libertarians and anti-militarists like myself oppose. That is the problem. Obama, by following suit, merely takes us further down the wrong path.

[jeff47]

12. Exactly what "powers of war" are there beyond declaration and CIC?

Because I can't come up with any. Power over the budget isn't a "war power", for example.

Third, treaties are not like amendments to the Constitution. Where a treaty conflicts with the Constitution, the Constitution overrides the treaty.

The Constitution declares that ratified treaties become the "supreme law of the land". While they're not technically constitutional amendments, a treaty can do things a law cannot.

Fourth, the Founders had a very broad concept of war.

Citation needed.

Limited war did not exist until the Korean war.

[Vattel]

14. Here you go:

A delegate to the Virginia ratifying convention, John Marshall, later served as Chief Justice of the US Supreme Court, and in an 1801 opinion wrote, “The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry.”

These powers include:

Art I Sec. 8:
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

Art. I Sec. 10:
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

As for "limited war," the Founders may not have used the term, but they certainly were quite familiar with limited uses of military force. Reprisals, for example, were a sort of limited use of force that nations sometimes employed against other nations. War certainly was seldom regarded as total war in the modern sense of the term.

[jeff47]

19. Things aren't the same

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

Laws were passed, it's now a law enforcement issue not a military issue.

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

Power Congress still has

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;

Budget and budget

To make rules for the government and regulation of the land and naval forces;

Punted to the Executive branch. The law basically says "follow UCMJ", which is mostly defined by the military and thus executive branch.

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

Punted to executive branch, except for funding which is budget

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

See previous entry on UCMJ

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Calling this one a "war power" for Congress is quite a stretch. It says states can't do their own foreign policy and can't raise their own army. Meaning the foreign policy and military granted to the executive is the one with the war power.

Reprisals, for example, were a sort of limited use of force that nations sometimes employed against other nations.

Yet the Constitution doesn't say the executive branch has to come see them to approve a reprisal. Congress issues letters of marquis to individuals, which makes sense since they were not nation-to-nation affairs. Letters of marquis were given to individuals and they conducted the reprisal on their own.

But it doesn't say the executive branch can't conduct reprisals, nor does it say the executive branch has to get approval for one. Is a drone strike the modern equivalent of a reprisal?

War certainly was seldom regarded as total war in the modern sense of the term.

What made Korea a limited war only a small portion of our country's resources were devoted to the war. In all wars before that, the war overtook the rest of the economy. The country's business, for the duration of the war, was war. That's one of the major reasons war needed Congressional approval - everyone would have to work towards winning the war.
Korea and later wars, not so much.

Plus we have the confusion caused by ratifying the UN charter. If the UN asks the US for an army, does Congress have to declare war? Well, the treaty says we have to send troops. Since that's the supreme law of the land, which wins? Well, nobody's taken it to court to find out. Frankly we haven't come across a situation where Congress didn't want to send the troops.

But Congress hasn't taken the executive branch to court to assert power over assassinations. Nor have they passed any laws to claim power over it. Congress passed laws about notification, but those laws did not give Congress veto power over an assassination.

In the absence of Congress saying "no" or trying to do anything to stop it, the Executive can go ahead and do it.

[Vattel]

22. Odd reply. Where do I begin?

The powers I cited are war powers given to Congress. You really don't say anything to contradict that.

"But it doesn't say the executive branch can't conduct reprisals."

As even the pro-executive power Hamilton pointed out, war powers granted to Congress are implicitly denied to the Executive.

"What made Korea a limited war only a small portion of our country's resources were devoted to the war. In all wars before that, the war overtook the rest of the economy. The country's business, for the duration of the war, was war. That's one of the major reasons war needed Congressional approval - everyone would have to work towards winning the war.
Korea and later wars, not so much."

What you say here makes little sense. In the 18th century there were countless European wars that didn't take over the economies of the states involved. The Founders were not thinking only of wars that overtook the rest of the economy when they attempted to grant Congress and not the President the power to place the nation in a state of war.

"Plus we have the confusion caused by ratifying the UN charter. If the UN asks the US for an army, does Congress have to declare war? Well, the treaty says we have to send troops. Since that's the supreme law of the land, which wins? Well, nobody's taken it to court to find out. Frankly we haven't come across a situation where Congress didn't want to send the troops."

The confusion is only yours. Insofar as the UN Charter violates the Constitution, it is not the supreme law of the land. The President and the Senate cannot through a treaty deprive the Congress of its exclusive power to put the nation at war. Any competent constitutional scholar will tell you that.

"In the absence of Congress saying "no" or trying to do anything to stop it, the Executive can go ahead and do it."

Not if it violates Constitutional rights. Granted the question has not been addressed and part of the problem is that our constitutional rights have through abuses of power by the President and Congress, and bad decisions by SCOTUS, been reduced to almost nothing. But that is precisely the problem!

[cliffordu]

10. I REALLY wish I could make this an OP -

Just perfect.

Thanks!

[jsmirman]

25. You are clapping for ignorance

why?

His statement about murdering US citizens abroad is not only wrong, it is insane.

[cliffordu]

44. Your concern in noted. Thanks.

[sabrina 1]

11. Nice try at defending policies that are an anathema to any democracy.

But please show us where in the US Constitution the POTUS has the right to be the judge, jury and executioner of an American citizen?? I have searched myself, did it when the far right Bush supporters were making these claims and not once did any of them ever provide that information. But surely we have all been wrong all these years and every reputable Constitutional lawyer has been wrong.

I will check back later to see what entity gives any country's leader, ours or anyone else's the right to kill people wherever they like. That is one incredible claim.

[jeff47]

13. Show me where he can't

Please find any place in the Constitution where a citizen can do something a non-citizen can't. The only ones I can find are 1) vote and 2) hold office. There is nothing special for citizens in the parts that deal with due process. For example, there is nothing in the fourth or fifth amendments that says anything about citizens.

As for where this power is granted, Article 2, sections 2 and 3. The places where presidents are given the power over foreign policy, except declaration of war.

[Vattel]

15. thankfully, article 2, sections 2 and 3 don't grant any power to kill citizens.

[jeff47]

17. You're still dodging.

You forgot to list where citizens get special protection non-citizens don't.

The sections I listed are the ones that grant most of foreign policy to the Executive branch. Executing people on foreign soil is foreign policy.

So where is it forbidden?

[Vattel]

23. No Founder believed

that the foreign poilcy powers of the federal government are unlimited. They certainly weren't regarded as including the power to commit murder on foreign soil. All of the federal government's powers were regarded as limited by morality and by Constitutional rights.

I don't get why you think I am dodging something. I agree with you that constitutional rights are not limited to citizens.

[jeff47]

27. If they believed that, why didn't they say so?

All they had to do was include that as something forbidden. They didn't.

I don't get why you think I am dodging something.

You claimed it was wrong to execute a US Citizen abroad. I keep asking you, explicitly, where in the Constitution citizens are granted greater due-process rights than non-citizens. Because you are claiming US Citizens have extra protection.

[Vattel]

40. They didn't think that they needed to be that explicit.

Again, I am not claiming that US citizens have extra protection.

[jsmirman]

26. The word "Person" could never be contorted to exclude any "Citizen"

you don't "lose your personhood" when you go abroad, and any definition of the word "person" has never been contorted by a respectable or responsible constitutional scholar, jurist, or lawyer to exclude all covered under the heading of "citizen."

I can't imagine where you are getting these ideas.

[jeff47]

28. You are 100% backwards from what I am saying

A lot of other people are making a big deal about "Killing a US Citizen abroad!!!"

I am saying it doesn't matter, from the Constitution's point of view, if the person killed is a citizen or not.

I'm making the point that there are no additional due process rights for citizens. Citizens and non-citizens receive the same due process rights.

And if you're gonna object to a citizen getting killed on Constitutional grounds, but not object to non-citizens getting killed, you have a bad argument.

[jsmirman]

29. I am saying you are 100% wrong

I am saying there is no possible interpretation of the Constitution that excludes any citizen from the word "person."

And that I am certain that the action you describe cannot be done to a citizen. This is not my opinion, this is Hamdi v. Rumsfeld.

This is not about "having an argument" - this is about you apparently not understanding our Constitution.

[jeff47]

32. Stop and read my posts.

I am saying there is no possible interpretation of the Constitution that excludes any citizen from the word "person."

That's nice.

I'm not saying there is. Read my posts before claiming I'm wrong.

And that I am certain that the action you describe cannot be done to a citizen. This is not my opinion, this is Hamdi v. Rumsfeld.

And I am saying the same rights apply to people, regardless of their citizenship.

The SCOTUS decision restricting the rights to citizens is wrong, because there is no place in the constitution where due process rights are restricted to citizens.

People claiming there's an additional problem with an attack on a US Citizen are wrong, because the problem applies to killing anyone. Not just citizens.

This is not about "having an argument" - this is about you apparently not understanding our Constitution.

Actually, it's about you not reading my posts. When you do, you'll realize I'm arguing for additional due process rights.

[jsmirman]

34. This is what you posted:

"False

There is no due process required for any action taken outisde US soil. The executive branch can kill anyone they want any time they want on foreign soil. US Citizenship of the target doesn't change that."

It's nice that you think there should be a similar right for all "persons" - I'm just telling you what the law is currently clear on, and what it is not currently clear on.

I'm struggling to find an interpretation of your statement - the one above, that I cut and pasted - that doesn't conclude that you said something that is blatantly incorrect. Please note that this post directly quotes your words.

[jeff47]

35. Hamdi was in US custody

The guy getting blown up by a drone isn't.

[jsmirman]

36. Hamdi spoke directly to a US citizen's rights abroad

if you can't hold the body (habeus corpus), you can't murder the body.

Or, put another way, if it's a violation of a person's right to, well, his "person," to hold him against his will without due process, it's a pretty safe bet that it's a violation of a person's right to be secure in their person to murder them. Now if you're talking about some kind of accident, that would be one thing, but that doesn't appear to be what you are talking about at all.

From the Fifth Amendment:

"No person shall... ....be deprived of life, liberty, or property, without due process of law..."

Notice which two are right next to each other? If, under the 5th amendment, a citizen can't be deprived of his liberty, there's not a legal argument in the world that says that under matching circumstances that citizen can be deprived of his life.

I can't go much further with this.

Are you just reading stuff online and trying to take your best guesses? We do actually learn stuff at law school.

[msanthrope]

55. Aristotle was not Belgian. The central message of Buddhism is not "Every man for himself."

And the London Underground is not a political movement. Those are all mistakes.

And "habeus corpus" (sic) does not mean what you think it means.

You are in law school?

When you take Con Law, and I truly hope that you haven't already taken Con Law, I suggest that you look a tad bit more carefully at the 5th amendment, and then answer me this:

"Using the claimed legal justification for Mr. Awlaki's targeting, (the AUMF, of 9/18/2001), what 'due process' violations do you believe accrued to Mr. Awlaki?" Be specific. Cite known authority that establishes Mr. Awlaki's 'due' under the War Powers authorized to the President by the Congress on 9/18/2001.


Go ahead. I've asked Wikipedia lawyer on this site to show me, precisely, what was Awlaki's 'due.' Haven't had a coherent answer, yet.

[jsmirman]

56. Excuse me

habeas corpus means - as we were taught, and as I believe to be as accurate a definition as is available - "show me the body."

In other words, justify to me why you are holding "the body."

I don't see how this contradicts any of what I have said in that regard.

As to the rest of all that, the claim was that no special rights accrue to a US Citizen abroad. That is not correct. You cannot just murder a US Citizen. Under Hamdi v. Rumsfeld, he has, at a minimum, a right to challenge his status as an enemy combatant (which a) was done b) was rejected for a (questionable) lack of standing (it wasn't Awlaki making the challenge) and c) he clearly was entitled to do if he, himself, appeared before a tribunal to challenge his enemy combatant status.

Those are due process rights.

If you're looking for some exact definition of "due process" rights that spans many areas, you are, of course, making a mockery of the question, as what precisely "due process" is has been debated in every area that a due process claim has been raised.

I have no idea what "wikipedia lawyer" is, but you have received an answer as to a "due process" right Awlaki was entitled to by virtue of being a US Citizen, and it is cited to a known authority. And the Court that "ruled against Awlaki" (that is not what happened - it ruled against the "representative" of Awlaki, stating that said "representative" did not have standing to plead his case) did not say anything to contradict that.

[msanthrope]

59. Wow. Just wow.

First of all, who was holding Awlaki? No one. He was non-custodial. Habeas simply doesn't apply.

Second, Hamdi does not apply because Awlaki was non-custodial. (See above. Starting to see a pattern?)

Third, assuming, in arguendo, that Mr. Awlaki had a right to challenge his status, cite the authority that compels the US to forever wait for him to assert his rights? He was non-custodial. What rights does the US owe an enemy combatant who is non-custodial, has ever intention of remaining so?

Further, his 'representative' was his father. Parents do not have the right to file litigation on behalf of their competent, adult children. At no point did Awlaki himself attempt to participate in said suit--he did not authorize or endorse it.

Mr. Awlaki had options. He chose not to use them.

[jsmirman]

61. Ok, now you are not understanding me

And looking back at the thread, I should have said to jeff that I respect his desire to extend additional rights to non-US citizens; I think it's admirable, and I'm not morally opposed to that.

I just know that the translation between "person" and "citizen" and "other people" involves very complicated questions.

I'm much more clear as to what I believe the Constitution and subsequent judicial interpretations of the Constitution say regarding the rights of citizens under the Constitution.

Now, let's get to your post, going from the bottom to the top.

"Mr. Awlaki had options. He chose not to use them."

I'm not disagreeing with that. In fact, I explicitly state that in this thread. The judge ultimately required him to appear before the tribunal. He did not pursue this option.

"Further, his 'representative' was his father. Parents do not have the right to file litigation on behalf of their competent, adult children. At no point did Awlaki himself attempt to participate in said suit--he did not authorize or endorse it."

Far from anything I have studied in any depth ("next friend" doctrine). In Hamdi, the father was deemed to be an appropriate "next friend." Here, the father was not. I don't know if "next friend" doctrine requires authorization or endorsement - or if Awlaki never gave either one (I can look through the briefs, or if you know this for certain, fine); if you can tell me, with confidence, that "next friend" doctrine requires one of the two, or both, I'd be glad to believe you. But that all has to do with dismissal of the action for lack of standing, and is not about ruling on the merits.

"Third, assuming, in arguendo, that Mr. Awlaki had a right to challenge his status, cite the authority that compels the US to forever wait for him to assert his rights? He was non-custodial. What rights does the US owe an enemy combatant who is non-custodial, has ever intention of remaining so?"

I never said anything about waiting forever for him to assert his rights. If you look at what happened in this case, however (and all I previously knew about this situation was that, chronologically, he was on a list of targets, they tried to kill him, he was still on a list of targets, only now it was an explicit list of US citizens targeted for killing, there was a legal challenge to his placement on such a list, that challenge was dismissed, he was killed) what was challenged was an open kill order placed on a US citizen with no judicial review of that executive action. He didn't have to be "in custody" for there to be a challenge under both the 4th and 5th Amendment. The ACLU and CCR thought that, and so do I.

"Second, Hamdi does not apply because Awlaki was non-custodial. (See above. Starting to see a pattern?)"

No, I don't believe that to be correct. Hamdi spoke to the limitations on executive power and the continuing attachment of a US citizen's rights abroad even in the aftermath of passage of the AUMF. Again, the ACLU and the CCR saw a direct application of that ruling to this case, and so do I. Their opinions do not mean this is correct, of course, but I agree with them. Scalia stated that a US citizen should receive the full process of a criminal case, and that opinion was joined by another justice (Stevens), and six other justices (Thomas was the only one to say that the President could do whatever the President wanted to) expressed that there were rights that continued to attach to a US citizen abroad even after the passage of the AUMF.

If the President claimed to be acting under mandate of the need for immediate action, that would be one circumstance. This was not that circumstance. This was an open kill order combined with the opinion that such an executive declaration could not be subject to any non-executive review. That kind of "not responding with an immediately necessary use of deadly force" does run afoul of the 4th Amendment, with its guarantee of "the right to be secure in (one's) person" and the 5th Amendment's restrictions on deprivation of "life, liberty, and property." At heart, the Hamdi ruling and the concept of habeas corpus relate to the right of the body to be free from official molestation and interference. The ruling that such rights continue to attach to a US citizen abroad, even after the passage of the AUMF, is absolutely relevant to this situation. The ACLU and the the CCR believe this, and so do I.

"First of all, who was holding Awlaki? No one. He was non-custodial. Habeas simply doesn't apply."

Please see above.

Let's put it this way: if the Court ever rules on analogous situation to Alkawi's (the maintenance of a citizen's name on an open kill order list) - and I don't think they will be able to duck this question indefinitely - I would *love* to wager you that Hamdi will be cited more than just passingly in the ruling that is handed down.

You disagree, but I am far from alone in believing this. For my part, I am having a hard time understanding why you are so certain that a precedent involving the 4th Amendment (in a post-AUMF world) and the "sanctity of the body" would be so hermetically sealed off from a case involving non-reviewable executive action (in a post-AUMF) world and the 4th Amendment right to be secure in one's own person and the 5th Amendment rights restricting interference with life and liberty. It's been almost three years since I read Hamdi, and I may be missing something that was stated explicitly in the multiple opinions (and I'm off to read it again, in just a moment), but that is not my impression.

[msanthrope]

62. No, I understand you. You are just completely wrong on the law.

Citizenship has nothing to do with this case. Nothing. It matters not whether Mr. Awlaki was US citizen, or not.

As for 'next friend' status, Mr. Awlaki Sr. failed to provide adequate justification for said status. He could not show why his son was prevented from showing up in court himself. Thus, he was denied, and properly so.

Hamdi applies to people in custody. It does not apply to non-custodial enemy combatants. Nor would habeas, since they are not in custody.

You wrote:

If the President claimed to be acting under mandate of the need for immediate action, that would be one circumstance. This was not that circumstance.

The AUMF of 9/18/2001 allows the President to prevent further attacks. Given that Mr. Awlaki was involved in the PETN attacks, Fort Hood, the BA bomb plot, the underwear bomber, and the Times Square plot (not to mention the attack on the Parliament member) Mr. Obama acted correctly in eliminating a person who had done prior attacks, and swore to do more.

The President is not under obligation to arrest people we are at war with.

[jsmirman]

63. You are totally ignoring the issue of contesting one's presence on a kill list

the court in question sidestepped it, as well, finding a lack of standing.

I have now repeatedly expressed that I do not find the requirement that Alkawi appear before the tribunal to be inherently unreasonable or incompatible with the Constitution.

Hamdi revolved around the issue of Hamdi's detention. However - and I have just been re-reading it - it repeatedly focuses on a citizen's right to both liberty and life.

It also references historical understanding of habeas corpus and the essential element of the sanctity of a citizen's body/person.

Your further commentary continues to ignore the question of a contestable executive open order, which was at the core of the ACLU/CCR argument. If you wish to continue to ignore this, I can't see the purpose of continuing to discuss this with you.

Furthermore, the initial issue I was responding to was the concept that citizens have no particular rights in matters surrounding the deprivation of life and liberty. That seems particularly out of touch with the Hamdi opinions, which specifically reference the rights attached to a citizen as the basis for any of the due process considerations that are discussed in the opinions.

You seem to be more interested in continuously repeating a narrow viewpoint and refusing to address anything outside of your repetition of that narrow viewpoint.

[msanthrope]

66. No, I answered that above.

You wrote:

I have now repeatedly expressed that I do not find the requirement that Alkawi appear before the tribunal to be inherently unreasonable or incompatible with the Constitution.

Right. When he didn't show, he left himself open to further action under the AUMF of 9/18/2001. If the President determines that a combatant is not feasibly able to be captured, he can order them killed. Such a judgment was apparently made regarding Awlaki. I would have had no problem with any President making that assessment.

Hamdi revolved around the issue of Hamdi's detention.

Right. Detention. Custodial. Are you getting the pattern yet? When a person is not custodial, Hamdi does not apply.

it repeatedly focuses on a citizen's right to both liberty and life.

Indeed. When one is in the custody of the government, one's life and liberty deserve due process.

When one is on the run from justice, or engaged in combat, or it is not feasible to capture you, things change. Awlaki sent PETN bombs. We sent a drone strike, back. The AUMF authorizes this.

Your further commentary continues to ignore the question of a contestable executive open order,

I am sorry, but what Executive Order are you referring to? The AUMF is not an executive order. Kindly cite?


Hamdi isn't the case you want. (and your analysis here suggests you haven't read Boumediene.) Tennessee v. Garner, and Scott v. Harris. Read those...Awlaki was a convicted murderer hiding out, and actively involved in sending PETN bombs to America. He wasn't in custody, and it wasn't feasible to capture him (unless you have a plan?)

[jsmirman]

70. Argh

I did not see this response.

I said a "contestable executive open order" (as in stemming from the executive branch). You indicate befuddlement at what this could refer to. I must ask if you have read the case:

"Defendants added Anwar Al-Aulaqi to the CIA and JSOC kill lists after a closed executive process. Id. ¶ 6, Ex. E, G, K. In the course of that process, Defendants and other executive officials determined that Anwar Al-Aulaqi satisfied secret criteria that determine whether a U.S. citizen can be killed by his own government. Anwar Al-Aulaqi is now subject to a standing order that permits the CIA and JSOC to kill him."

Garner and Scott are most certainly relevant to this case, as well (and, as such, are cited in the ACLU/CCR brief).

I have not read Boumedine, and as I said, I intend to, and look forward to reading the case.

As to the other stuff, we are going around in circles. If this persists I will quote extensively from Hamdi tomorrow evening (or if the points I am stressing are found in the Hamdi case are somehow contradicted by Boumedine, I will be glad to indicate that).

For now, I am done for the night. Sorry, enough going around in circles (not even back and forth). You've repeated yourself enough for my tastes in this thread. I am also not clear if you realize that I have indicated (long ago) (in this thread) that I don't have a problem with the ultimate outcome of the situation, but that is unimportant. Good night, and thanks for all the fish (or I should say, the same fish, over and over and over again).

[msanthrope]

72. Okay, are you really in law school?

A few hints on writing about the law....

1) Distinguish between your cases. In other words, do not go on about Hamdi for paragraphs and then start writing about another case without clearly indicating that you are doing so. I assume you have quoted from a filing inAl-Aulaqi v. Obama? Well, give the people a link, son! Let them know where you've quoted from, particularly when you decide to quote not from the opinion, but from one of the arguments.

2) Even if you are not quoting, provide names and citations when you can (justia is helpful) when you are referencing specific holdings, passages, etc.

3) Briefs are interesting, but the OPINION is what is the law. So, while quoting what the ACLU thinks is relevant is fine, the real analysis is on the judge's opinion. (see that link?!)

3) Get your facts precisely, particularly when you are discussing governmental action. An alleged 'executive process' is not an 'executive order'. Nor did the ACLU ever prove that any 'executive process' was happening--they merely relied on media reports, and failed to produce even a single affidavit in support of their CT. Using unproven media reports of 'kill lists' is about as reliable as using media reports about 'death panels.' Do you have a named source willing to testify to said 'kill lists' in a court of law? No?

4) As for Awlaki, I suggest you carefully reread the ACLU's filing...they simply do not challenge the Administration's OFAC on Awlaki. They do not challenge his SGDT designation. They do not challenge his affiliation with AQAP.

They do not challenge his UN designation as (QI.A.283.10.) on the 1267 list. Nor did they attempt to delist him.

5) Awlaki had a choice. In Al-Aulaqi v. Obama the judge noted that the US acknowledged his rights if he surrendered:

The United States has, however, repeatedly stated that if Anwar Al-Aulaqi "were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances." (internal citations omitted) p. 8 (Judge's opinion, cited above)

If you read the judge's opinion, particularly page 18, you would note that Hamdi and Garner obligate the administration to use non-lethal force when a combatant has laid down their arms. Mr. Awlaki did no such thing, nor did he attempt to. The protections of Hamdi and Garner do not apply because Mr. Awlaki was not custodial, or anything close to it.

As the judge stated,

All U.S. citizens may avail themselves of theU.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi is thus faced with the same choice presented to all U.S. citizens.(4)
Page 18 of judge's order cited above.

Of course, Judge Bates documented numerous instances of Mr. Al-Awlaki denying that he would ever surrender. He further noted that Mr. Al-Awlaki would have had no problem securing legal counsel as he was apparently able to use video and video conferencing from wherever he was hiding...In other words, you cannot post scores of videos to YouTube calling for jihad, and then have your father credibly argue that you are cut off from the world, thus necessitating 'next friend' status. (See footnote (4) referenced above.)

When you won't surrender, and you send PETN bombs, you will get a response that is commensurate.

6)

Here, plaintiff has presented no evidence that his son wants to vindicate his U.S.constitutional rights through the U.S. judicial system.
p23, opinion above.

Pretty much says it all. I have no tears for a terrorist who thought blowing up planes was the will of his god.

[jsmirman]

78. The cake, you take it

I'll give a substantive response later, but a few things bear quick retort.

I haven't cited and extensively quoted because I wasn't being a tedious weenie here. I tend to make arguments - at this advanced point in law school - by linking from nearly every fact I reference, particularly when writing to a general audience. It's my background in journalism and in law that leads me to err on the side of this. I have offered to do this multiple times in this thread, showing you exactly where I am sourcing various contentions that this justice said this or that justice said this, etc.

But the point in a post like that being anything more than just rhetoric thrown at one person spewing rhetoric in return does not exist here. And we have never reached the point where we are arguing about the same thing. You keep repeating the same stance about his failure to appear before a tribunal, and I keep telling you that I have agreed with that since before you started posting in this thread. Now, if your enormous balloon-sized ego wasn't so internally swelled up that it blocks anything from reaching your ears, you might understand the position I am taking here.

To a few basic things -

1) For you to not understand that the ACLU/CCR stuff was from their brief after I've said something like...

"Garner and Scott are most certainly relevant to this case, as well (and, as such, are cited in the ACLU/CCR brief)."

is... what? Shows this isn't about you reading responses, but is about you proving to yourself how awesome you are and continuously repeating the same point over and over and over again?

2) An alleged 'executive process' is not an 'executive order'. Nor did the ACLU ever prove that any 'executive process' was happening--they merely relied on media reports...

It is you who turned what I said into an "Executive Order," which is a neat little lawyer trick of arguing with something that the other person never said - a trick that I am quite familiar with and try to avoid. The only time I came even close to this was presenting this as an "executive open order," which only someone seeking to be intellectually dishonest or with a predilection to be undiscerning would translate into "Executive Order." Yes, I have commonly heard official Executive Orders described as "open" or "closed" (sarcasm). This was to indicate that the call on Alkawi's killing came from the executive branch; nothing more, nothing less.

And as to the further intellectual dishonesty of pretending that the kill list didn't exist, it's not only that the New York Times and Washington Post reported this, but the absence of any correction or dispute on that count to come from the White House, the absence of any real correction or dispute to come from any corner, the fact that they tried to kill him once with a drone strike, the fact that they eventually killed him with a drone strike, the reality of how the White House will, of course, fight tooth and nail to have anybody who could speak to this sort of question subpoenaed in these cases (see the case you are allergic to, for one such tooth and nail fight) - pick from amongst the above.

But as to the above, I'm glad you've successfully argued with yourself about what an Executive Order is and is not. Seeing as I never called this an Executive Order, the wind bows to you as a defeated opponent. Garbage.

3) You continue to speak as though I have a problem with the ultimate outcome of the situation (the opposite of what I indicated before you started posting in this thread, once you started posting in this thread, as you continued to post in this thread). Yes, you have once again really carried the day by arguing with yourself against a position the person you are addressing has specifically stated that he does not hold.

Our disagreement has always been about two narrow questions: 1) does a US Citizen have additional rights that attach even when that citizen is abroad and 2) do the Hamdi opinions say anything that may have bearing on this question.

These are the questions that were on the table when you came charging into this thread.

I suppose I still don't know where you stand on either of those because you have 1) been interested in repeatedly arguing against positions not expressed and 2) restricted your useful commentary to repeating the same point over and over and over again.

[jsmirman]

79. Nice clear personal attack in subject line/Nice continued distortions

I am done on this topic. I have wasted enough time "arguing" with you in a "discussion" where you continually choose to discuss what you wish to discuss and ignore what points were in contention when you charged into this conversation and what points were not in contention.

Furthermore, your "are you really in law school" is a blatant personal attack, especially in light of my statement that I am in law school, which means that you are asking if I am a liar, which is the nature of contesting a person's statement of facts about him or herself.

Your "a few hints on writing about the law...." is merely condescending and dickish (and misguided, as this is not a legal forum, and, as I have explained, wasting my time on careful and extensive citation is pointless when you insist on this being an "argument" where we argue about utterly different things).

Let me be exceeding clear about how you have distorted the terms of this debate from the very beginning, and contested made up positions that you fancifully attribute to me:
(I will not be linking to posts in this very same thread, as that would be weenie-ish and cluttering)

1) Do you have any idea what questions were at issue when you entered this discussion?

These were the contentions I was responding to:

"A lot of other people are making a big deal about 'Killing a US Citizen abroad!!!' I am saying it doesn't matter, from the Constitution's point of view, if the person killed is a citizen or not."

"The executive branch can kill anyone they want any time they want on foreign soil. US Citizenship of the target doesn't change that."

Do you agree with these contentions? Please answer yes or no.

These were the contentions at issue when you entered this thread. Not whether Alkawi should have been killed by the US government or not, not whether the Alkawi decision was correct or not (issues you insist on making the focus of this "debate," despite the fact that they are irrelevant to the contentions at issue, but more on that, shortly).

As to these contentions, this singular district court judge you are so excited about citing to is not comfortable saying this, the overall Alkawi decision does not support the contentions block quoted above, and this is not surprising, as a decision based on lack of standing and non-justiciability is unlikely to resolve the substantive issues within those contentions.

This is all I have expressed disagreement with; nothing more, nothing less. I made one statement that was imprecise, too quickly made and inelegant when I said "this is Hamdi." I should have been more clear that what I meant was that Hamdi had direct bearing on the questions raised in the block quoted contentions. You may disagree with this (I do not); but re-arguing the Alkawi decision where such a question could not be reached because of standing and non-justiciability is surely not an effective way to debate that question.

2) Your argument is, and has essentially been "I agree with the resolution of this case." I don't have a competing argument, but I do have a repeatedly stated position of "I do not have a problem with the resolution of this case."

Hmm. Pretty dishonest way of waging an "argument," no?

Back to what this particular case turned on - as noted, it was decided that the Alkawi side's complaint could not be addressed as they had a lack of standing and presented a non-justiciable question.

An interesting quotation from the case that you are so fond of, though:

"this Court does not hold that the Executive possesses "unreviewable authority to order the assassination of any American whom he labels an enemy of the state." See Mot. Hr'gTr. 118:1-2. Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas... presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a "drastic measure" for the United States to employ lethal force against one of its own citizens abroad..."

Now, prior to your entry into this thread, I expressed that there was a pretty good argument to be made in favor of viewing the threat posed by Alkawi as "imminent." All the things said in the Alkawi decision quoted above might be very relevant when disagreeing with someone holding a contrary view. However, as I point out, and have repeatedly pointed out, this is not my view.

As to the actual questions being discussed, the above quotation is rather relevant to the idea that (paraphrase) "being a citizen has no bearing on the US' ability to kill someone on foreign soil" (you know, the actual question being discussed, not the question you have declared by fiat to be the question at issue).

3) The judge who rendered the Alkawi decision does engage in some of the intellectual dishonesty you seem so fond of.

It's no wonder you like quoting from that decision. This is less relevant to anything at issue in this thread, but in the interests of thoroughness...

Here are three instances of intellectual dishonesty from that decision:

- The judge dismisses reporting in the Washington Post and New York Times, but is willing to credit "media sources" that link Alkawi to the Fort Hood shootings. That's kind of shitty.

- The judge pretends that the ability to make public statements is the same as the act of initiating traceable communications with a specific individual. That's pretty dishonest.

- The judge indulges in the fiction that someone's statements about US law can make US law any more or less applicable in a specific legal case. That's also kind of shitty.

I don't disagree with the conclusion, but I can't say I'm a fan of all that is expressed in those 83 pages.

Finally)

We may still disagree (and I suspect we do) about the narrow question of whether a ruling in a habeas case like Hamdi can be relevant to any (doesn't have to be this one (Alkawi)...) case involving the 4th Amendment right to security in one's own person and the 5th Amendment right to the life part of "life and liberty" (quotes indicate a concept, not a direct quote).

But we have never gotten out of the blocks of discussing this question because you have repeatedly insisted on distorting what is at issue (at least in my part of it) in this thread. If you wanted to discuss the broader issue of whether Alkawi's death was something to be mourned or celebrated, you should have answered to the OP's post, not to someone who doesn't find it unreasonable that he was killed. I do not wish to have a discussion about the actual question at issue with you because you have shown yourself to be dishonest, distorting, condescending, and unable to focus on the actual premise of a debate.

I have no doubt that your next reply will - once again - move this "conversation" to a topic of your choosing. When that happens, I will concede the last word.

[jsmirman]

64. Question: Have you read Hamdi, recently, or at any point in the recent past?

If you wish to continue this back and forth, I would at least like an answer to this question.

I ask this question in light of the multiple references to the due process concerns inherent in the deprivation of liberty and life, and what seems to be an essential element in these references - the assumption that the deprivation of life is an even more serious predation.

I would be glad to quote you numerous passages from each of the opinions, excepting Thomas'.

[msanthrope]

67. Yes. Hamdi isn't on point here. Hamdi is custodial.

What law school do you go to?

FYI--you might wanna familiarize yourself with Boumediene, it's the new Hamdi...

But seriously...do you get why it doesn't apply to Awlaki?

[jsmirman]

68. "Yes," you would like me to quote passages showing the foolhardiness

of your contention, or "yes," you have read Hamdi?

I am growing tired of your method of engagement here (and also running out of time to commit to this).

Your question (in the body) of the message is also very hard to interpret in any other manner other than "intentionally insulting," however, I will respond "an excellent one that is universally recognized as such."

[msanthrope]

73. In post 70, I used the case you cited to point out to you why your reliance on Hamdi is incorrect.

In Al-Aulaqi-v-Obama, which you quoted from, above, the judge notes that the Administration does not dispute that the protections of Hamdi and Garner would apply if Awlaki availed himself of the judicial process. (see, p. 18 & 19 of Judge Bates excellent opinion.)

He didn't.

Here, plaintiff has presented no evidence that his son wants to vindicate his U.S.constitutional rights through the U.S. judicial system. Plaintiff concedes that he has not spoken to Anwar Al-Aulaqi since he was allegedly first targeted. p 23, opinion cited above.

Hamdidoesn't apply because Awlaki is non-custodial, and is engaged in active combat. I suggest you read the decision on the case you approvingly quote for reasons why.


Let me know when you've passed a bar.

[jsmirman]

69. As to your edit

I'll certainly look into that case.

Back to our "conversation," if your argument is that it is not the same exact case, or even that it is not directly applicable, fine.

If your argument is that it is not relevant, or that it would be very hard to reconcile the opinions expressed by the justices (minus Thomas) in Hamdi with opinions that there are not particular rights that attach to a citizen in the question of the state depriving him of his right to life, or that the questions of deprivation of liberty and deprivation of life are not closely linked, I would strongly disagree. And you would be dismissing the arguments of the ACLU and the CCR as piffle and not serious constitutionally-based arguments.

You do realize that the ACLU/CCR brief references Hamdi, no?

I find this conversation even more frustrating, considering that even ex parte Milligan, to really go back to a seminal habeas corpus case, comments on how the deprivation of life by one's own government is an even more essential deprivation. Are the two things the same? No. Are they closely linked and relevant to each other? Yes.

I'll have a look at Boumediene, but you're being awfully dismissive of attitudes taken by the ACLU, the CCR, and 8 of 9 justices in Hamdi. Is it dicta? Sure. But they each make note of the relation to the deprivation of life.

[msanthrope]

74. Really???

You do realize that the ACLU/CCR brief references Hamdi, no?

And I took the Opinion in that case, and showed you why both I, and the judge, found Hamdi to be not on point.

My substantive answer is in post # 70. Now, two points about your law school education--

1) Do not quote approvingly from an argument or filing without reading the Opinion. When you do that, you open yourself up to what I just did to you--I took the Court's opinion and showed you why you were wrong on the law.

2) If your law school isn't teaching you how to do either process described in point 1, you are paying too much in tuition.

[jsmirman]

77. Good lord

I've been polite, but could you please stuff your condescending bleep in your bleep???

You have got to be kidding me.

Because one lower level judge says something, it's automatically correct, and the arguments made by one side are without validity?

What the hell law school did you go to?

The judge was able to carry with the opinion that was written because it's a long road to disagreeing that Awlaki needed to show up in front of the tribunal. Which I've only agreed with since... the start.

Please, enough, I have no more interest in discussing this with you.

It's bad enough that you wanted to direct me to Boumediene, which - I have now not read, because the gloss of it I looked at first suggested it refers to NON-CITIZENS.

Which means you have entirely missed my point/ignored it/are too vastly chuffed with your marvelous "real world" lawyering to actually hear what I am saying.

The "you are paying too much" nonsense - did you get that out of the book "shit post-law school lawyers say to people in law school"???

You get back to me when you can show me that a district court judge's ruling that rests on standing, not the merits creates precedent for ANYONE on the merits questions.

And as for your unbelievable condescension, perhaps YOU should read the opinion you're waving around:

Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another dayor another (non-judicial) forum.

I suppose I will respond to your other post just above, but you are seriously wasting my time, in an obvious effort to by hook or by crook prove how awesome you are.

[jsmirman]

57. I am also

very unclear as to what further information you would like.

Would you like me to simply copy and paste each of the legal authorities used by the ACLU and the CCR in the Awlaki briefs that make the exact same arguments based on the 4th and 5th amendment that I made (having never - until this last hour - read the briefs, mind you, but having just entered this thread to answer to the claims I responded to)?

The judge didn't rule against those - he didn't rule on the merits - and the positions staked out by the justices in Hamdi v. Rumsfeld make it highly unlikely that those arguments wouldn't carry the day if a case like this was addressed on its constitutional merits by the current Court. I can elaborate on the positions that were taken in the decision referred to, if you would like.

The question of killing a non-citizen extra-judicially is, in all likelihood, a moral question or a question of international law. The question of killing a citizen extra-judicially is most certainly a question of constitutional law.

[jsmirman]

30. It's also

unclear whether there are any additional rights that a citizen has, but does not make what you said any less incorrect.

I know what a citizen's rights are abroad, because that is the exact freaking subject of Hamdi v. Rumsfeld. And because I know what even the conservative Court that decided that case was willing to say.

[jsmirman]

24. This is lunacy

Do you understand anything about the 4th and 5th Amendments to the Constitution?

Arguments about the word "Person" can go down all sorts of paths, but that word is sure as shit not meant to be more restrictive than the word "Citizen." That is simply not open to debate.

You honestly think that because I go on vacation in England, the US Government, acting in its official capacity, can openly murder me, with no due process?

Where do you get this insane idea?

Do you know anything about Hamdi v. Rumsfeld?

[jeff47]

31. The document says what it says, not what you want it to say.

Do you understand anything about the 4th and 5th Amendments to the Constitution?

Yep. Do you understand they don't apply outside the US? (legally outside - there's lots of foreign dirt that counts as US)

Arguments about the word "Person" can go down all sorts of paths, but that word is sure as shit not meant to be more restrictive than the word "Citizen." That is simply not open to debate.

You have my argument backwards. I am claiming the Constitution grants the same due process rights to citizens and non-citizens.

If you are going to complain about the Constitutionality of killing people outside the US, you have a coherent argument.

If you are going to complain about the Constitutionality of killing US Citizens, but not complain about killing non-citizens, you do not have a coherent argument.

Object to killing any people, or no people. Being a US Citizen doesn't grant additional rights in this area.

[jsmirman]

37. Argh, I've given you my full answer in post #36

and as I said there, it really appears that you're reading stuff online and trying to cobble together arguments as best you can, all while finding it unimaginable that they actually teach us stuff at law school. You don't know the law, you don't know what you're talking about, and you're wrong.

[NMDemDist2]

4. lots of liberals have expressed real problems with some of Obama's

policies

and that's one of the biggies

the left is still howling, the pundits aren't the 'left' unless you count Hartman and Goodman and they've had plenty to say

[JoePhilly]

6. Duplicate OP ... with exact same title ...

http://www.democraticunderground.com/1002284718

[FarLeftFist]

16. Glenn wrote an entire article based on polling of 1000 people?!

Starting to reek of desperation.

[Taverner]

18. I agree - HOWEVER - Obama is the best we are going to get

[treestar]

20. Bush was incompetent, not some civil libertarian

No way would Bush have not killed Al-Awlaki on account of due process concerns.

Nice try.

[Honeycombe8]

33. You are downgrading the threat from Awlaki, & I agree with the LEGALITY of killing him.

Consider this: If the police are trying to catch snipers in NYC and are dispersed, armed, to do that, and come upon a man with a rifle, on top of a building, with the rifle pointed at innocent civilians...do they stand in the street & call in for their superior to get a court order so that they will be able to shoot and kill the man?

Awlaki was a LEADER IN AL QAEDA and was actively and publicly urging others to kill innocent Americans. The situation was urgent. They got a lead on where he was, so they struck and killed him, based on his illegal actions and because of the need to save innocent people.

It's not the same as some average guy hanging out in Egypt, and the govt sends an operative to assassinate him. Awlaki was born in the U.S., and while he had not dissolved his citizenship, he had basically abdicated his position as a US citizen, when he crossed over to become a leader in a terrorist grouop whose main aim is to kill innocent Americans.

You need to take all things into consideration. It's not black and white all the time. There are shades of gray. I also have to trust in the nature of hte President that he is not a thug and is not into killing American citizens willy nilly. The White House knows a few things that we do not. And I do believe in the basic ethical nature of President Obama.

There was another American who was killed that day, as well. The NYT said of him: American officials said that the missile strike also killed Samir Khan, an American citizen of Pakistani origin who was an editor of Inspire, Al Qaeda’s English-language online magazine. Mr. Khan, who grew up in Queens and North Carolina, proclaimed in the magazine last year that he was “proud to be a traitor to America,” and edited articles with titles like “Make a Bomb in the Kitchen of Your Mom.”

They had the option to turn themselves in and be tried. Having refused to do so, America not only had the LEGAL right to take them out, they had the DUTY to do so. They were very dangerous, very influential, and were key members of Al Qaeda. Their deaths dealth AQ a big blow in their commitment to killing your mother, your children, your brother for no reason other than they are Americans.

Finally, this matter was adjudicated in the court system, when the ACLU sued unsuccessfully to take Awlaki's name off the hit list. It was determined, by our court system, that it was LEGAL. That was a determination by our JUDICIAL BRANCH.

[renie408]

38. You said this way better than I could.

But this is pretty much what I was thinking, too. It isn't as if Awlaki was some tourist from Des Moines who was assassinated for shits and giggles. And given where he was killed and the difficulty the CIA had in tracking him, when they got the chance; they took it. And I might have that whole intellectual oozing thing, but I am just not too worked up over it.

And Guantanamo is an inherited problem that sucks and I don't think anybody would deny that, not even Obama. He tried to get trials for some detainees and he tried to get them moved into the States. He wasn't feeling a whole lotta love on that one. We have fucked that up big time and we need to own it. I agree that we aren't doing the right thing there. I am just not sure what to do about it.

The drone attacks on funerals is disturbing. I don't condone the murder of innocents as 'collateral damage'. Again, I am not sure what to do about it.

[Vattel]

42. I disagree with some of what you say here.

I agree that the Executive, no less than you or I, has a right to kill someone if that is immediately necessary to prevent that person from committing murder. However, the police analogy works against you. If there is no immediate threat, the police do need to get a warrant to merely arrest, or search the house of, someone who is regarded as dangerous. I suspect (although neither of us knows for sure) that Awlaki was a dangerous person. But I believe that whenever time permits, there should be judicial oversight of any plan to kill a US citizen. Due process should be understood to require that.

Granted the ACLU's suit failed. I believe that it should have succeeded. I regret that Obama and our courts are taking us further down the wrong path.

[jsmirman]

43. It seems like there's a strong argument that there was an "immediate threat"

and the judge sidestepped the issue, entirely, by claiming lack of standing.

It's a messy situation, no doubt, but I will say that if there was time for a suit to go forward and for his father to take his case to court, it would seem that there was time available for him to appear before the same tribunal.

[Honeycombe8]

46. I follow your thinking, but I think you're wrong on that. The police do not need to get a warrant...

for someone who is already accused of a crime involving the deaths of others. Think Bonnie & Clyde, Dillinger, Pretty Boy Floyd, etc.

Once you're on a "wanted" list for crimes, you have the option of turning yourself in. When you don't, the authorities have the right and the duty to hunt you down, & shoot to kill. There is disagreement about whether Bonnie & Clyde & Dillinger should've been surrounded & forced to surrender instead of killed. I've wondered about that, too. But it is paramount that INNOCENT PEOPLE do not get killed. Their lives take precedence over someone who is evading capture for crimes. So I understand why police would shoot to kill instead of risking the lives of their agents/policemen when faced with someone who is clearly dangerous and surrounded by murderers who wouldn't bat an eye at killing.

This man was wanted for crimes and was on a most wanted list. He knew it. His terrorist group knew it. He knew he was being hunted. He knew he would be killed if located. He could have made a plea to turn himself in for trial, if he wanted to save his life. We may disagree on whether the actions were proper, as in the case of Bonnie & Clyde. But the actions were legal. It wasn't just the Executive Branch that decided that.

I DO think the threat was immediate, in a sense, though. He was a primary video recruiter & murder-encourager. Every day was a day for him to make another video to be circulated, and for someone to see it and go out and kill an innocent person. He was very dangerous, and was a key AQ player.

[Vattel]

48. Thanks for the intelligent arguments.

I do disagree with you, though. The two issues, what has been ruled legal and what ought to be ruled legal need to be distinguished, of course. Civil libertarians like myself disagree with many Court decisions that have watered down the rights in the Bill of Rights. The anti-federalists turned out to be right in fearing that this would happen.

As for the relevance of existing law to the cases at hand, the Supreme Court has held that the officer who shoots the fleeing suspect must reasonably believe that not doing so will pose a serious danger to others. Is that the case with the Americans killed by Obama? Part of the problem with extending this permission to kill to the President is that no one but the executive is allowed to even see the evidence so that they can make such a determination. But certainly merely encouraging violent jihad would not rise to the necessary standard. That is protected speech. Of course, Obama claims that Awlaki was involved at an operational level in the planning of terrorist attacks, but how much evidence does he have of that? Who knows?

Another possible problem with the analogy to Bonnie and Clyde is that--correct me if I am wrong about this--there were no American arrest warrants for at least one of the citizens killed by Obama. (I am in a hurry to get to work, and so I can't check this now.) So it isn't clear that the analogy works.

My bottom line: To me, the idea that the President with no oversight can simply determine who is to be killed for the sake of national security is an abomination and contrary to the original intent and the spirit of the protections against abuses of executive power that our Founders tried to install.

[stevenleser]

49. But at least you recognize that there are reasonable arguments to be made there

That is the point. There are two situations with Bush where I believe there are no reasonable arguments to be made.

#1 - Iraq. I've written numerous articles on this including this one http://www.opednews.com/articles/Iraq-War--Six-Year-Annive-by-Steven-Leser-090304-145.html
There is no reasonable argument for attacking/invading Iraq like we did that allows that attack to comply with US and International Law.

#2 - Torture. There is no reasonable argument for torture.

Those are the arguments that all Democrats agree on.

The other stuff as implied by this OP, there was not universal agreement by Democrats with Bush and there is not now. The same folks who agreed with Afghanistan, for instance, me, when Bush went into Afghanistan, still agree with it when Obama is in charge.

The suggestion that some Democrats/Liberals/Progressives "disagreed with something when Bush did it, but thought it was OK when Obaama did it", again, is a cute soundbite, but does not reflect reality.

[Vattel]

50. Again, the whole issue of whether and how much hypocrisy exists doesn't interest me much.

You may be right that Greenwald is exaggerating the extent to which hypocrisy exists, and unfortunately I did post an excerpt from the article that makes the claim that the hypocrisy is rampant (my bad), but I am mainly interested in discussing the policies that the article opposes.

I agree with you on #1 and #2, but I do think Obama and the democrats in Congress have screwed up royally even on the issue of torture. When they controlled Congress, they should have strengthened the War Crimes Act to make enhanced interrogation techniques unambiguously criminal. Obama's executive order is way too weak. As soon as the President wants to torture, he rescinds the order.

[stevenleser]

51. Torture remains a politicized issue

Much like xferring the prisoners/trials from Guantanamo to the US.

Anytime a Democrat brings up the issue, Republicans demagogue the issue, claiming that Democrats are weak on defense.

Too many people let their fear control them on this issue.

[Vattel]

60. I agree

[Honeycombe8]

65. Now you're changing the argument...from wrong to kill an Am. citizen...

to your not thinking that terrorists should be considered in a war with America. Arrest warrants aren't issued for terrorists, but he was on a most wanted list which had the authority of an arrest warrant. He was also a traitor...I don't know if arrest warrants are issued for traitors. Maybe.

That's a different argument, if that's your argument.

Otherwise, you're saying that although it's legal, you disagree with the decision that it's legal. That is a different argument. Everyone disagrees with SOMETHING a court has decided is legal. But that is our legal system. SOMEONE has to decide, under the written statutes, what is legal and what is not, given a certain set of facts.

That's all I was saying. It was legal. Some disagree with it. I don't have a problem with it, as long as it was legal. He was an admitted member of AQ whose intent was to kill innocent Americans. He was a traitor. He didn't turn himself in. So he was killed (thank goodness).

[Vattel]

71. I think you are missing my point.

I am happy to say that Al Qaeda terrorists are at war with the US. You are the one who used the analogy to criminal cases, and I was pointing out a disanalogy. I am not saying that his assassination was legal. I think it was unconstitutional, and no court has ruled on that specific issue.

[stevenleser]

75. The problem we all seem to be facing in our approach is that AQ terrorists overlap crime AND war.

If you intend to either argue that we should treat them as either a law enforcement issue, or a military issue, there is plenty there either way for you to argue.

I say, let western governments have at them either way. I dont have a problem with either approach. If they capture them alive, however, I expect trials and humane treatment, i.e. no torture.

[Vattel]

76. It is a complicated issue, both morally and legally.

And I don't think I have proven anything here. I am writing a paper on the issue that will probably appear in some law review somewhere at some point. If and when it does I will link to it.

[dionysus]

39. oh, it's glenn again

[ProSense]

41. Well,

"Is there even a single liberal pundit, blogger or commentator who would have defended George Bush "

...yes (if you consider Greenwald "liberal&quot .

Wow, Greenwald in a new light
http://www.democraticunderground.com/100297462

And as I pointed out in the other thread (http://election.democraticunderground.com/?com=view_post&forum=1002&pid=286096), Greenwald has some fucking nerve scolding progressives.

[Tarheel_Dem]

45. How do people keep confusing Greenwald with "liberals"?

[MrScorpio]

47. Greenwald again...

Figures.

[Hell Hath No Fury]

52. Yes, it is hyposcrisy and yes it is repulsive.

It has been truly eye-opening to watch it happen, even here on DU -- maybe even especially here on DU..

It saddens me, depresses me, and shames me.

It really tells me just who will and will not have The Peoples backs when the shit goes down from a "D". Right now it's only around 22% of "Democrats" -- and that scares the shit out of me.

[msanthrope]

54. What, did Glenn write another Awlaki obituary? nt