>> ^NetRunner:

>> ^SDGundamX:
I know it is being nitpicky, but the reason Padilla could challenge was because he was an American citizen who had been designated by the president as an enemy combatant. You're right, they don't have to try every enemy combatant. I'm trying to find the actual court decision, but I could have sworn that it wasn't just a one-off thing for Padilla--the courts decided that any American has the right to challenge being put on the list in court.
As a fellow nitpicker, I don't mind when someone picks a nit. I don't contest any of what you say here. I actually thought that it went without saying that it hinged on Padilla's citizenship, and wasn't some sort of one-off decision.
>> ^SDGundamX:
As the video notes, al-Awlaki's family was indeed in the process of challenging it when the killing took place. I think that places the President in an awkward position from a legal standpoint. It'll be interesting to see where this goes if the family pursues this (sues for wrongful death or something), though I agree with you it seems like the odds are stacked in favor of the courts supporting the Presidential powers.
I don't see how they thought they might win such a challenge. All Al-Alwaki had to do was provide aid and comfort to the enemy, and it's over. And, well, his big thing was putting Al Qaeda recruitment videos on YouTube, so I'm thinking the government just plays one of those, and the case is over.
But in any case, his status when he was killed was still that of an enemy combatant. Now that he's dead, I suspect his legal status is no longer that of an enemy combatant, so there's nothing to challenge. And I suspect there's some Latin name for this, but I don't think courts are allowed to render something a crime by retroactively changing the legal status of things.
For example, say two people are getting a divorce, and the husband takes some jointly owned property with him when he moves out. Now suppose that when the divorce gets finalized, the court awards that property to the wife. The courts can't say "and it always was hers to begin with, so now we're charging you with larceny for taking it when you moved out".
You'd need to do something like that in order to make this killing a criminal act.
A wrongful death suit might fly though. But that's a civil suit, not a criminal charge.
But seriously, all this stuff is wrong. The President shouldn't have unilateral authority to declare people combatants and non-combatants. It should be uniformed members of the military of the nation we've declared war on. Everything else should be law enforcement, including chasing after terrorists.
The courts aren't going to make all that happen by fiat. That has to be a legislative effort, or it's just going to keep on going like this.


The trouble is it doesn't quite work to lump things as either law enforcement or uniformed soldiers at war. That works only in as far as it makes sense to pursue criminals through domestic and foreign law enforcement, or to make war on foreign nations refusing to enforce the rule of law. Due to myriad political bramble bushes, there are many nations like Pakistan and Yemen who claim much broader borders than those in which their actual loyal police officers can safely operate. When criminals hide in the tribal regions of Yemen and Pakistan, even willing and co-operative governments in Pakistan and Yemen are unable to enforce the law on the criminals we want prosecuted. Do we just leave those criminals be then? Do we declare uniformed soldier on soldier war against the governments in Pakistan and Yemen? Do we demand they restart the aborted civil wars that have left their tribal regions effectively autonomous independent nations?

In my opinion the tribal regions in places like Yemen and Pakistan are effectively not sovereign parts of those nations. It's not politically expedient to declare that, but it is the way Pakistani and Yemeni governments have been handling and treating the regions all along. They are for all intents and purposes independent nations, which merely pay lip service to being a part of Pakistan or Yemen while jockeying internally for a stronger position for themselves. I see American policy as effectively stepping in and treating those tribal regions as independent nations, rather than as Yemeni or Pakistani territory. Thus America is at open war with these tribal regions for their support of Al-Qaida jihadists.

>> ^SDGundamX:

I know it is being nitpicky, but the reason Padilla could challenge was because he was an American citizen who had been designated by the president as an enemy combatant. You're right, they don't have to try every enemy combatant. I'm trying to find the actual court decision, but I could have sworn that it wasn't just a one-off thing for Padilla--the courts decided that any American has the right to challenge being put on the list in court.

As a fellow nitpicker, I don't mind when someone picks a nit. I don't contest any of what you say here. I actually thought that it went without saying that it hinged on Padilla's citizenship, and wasn't some sort of one-off decision.

>> ^SDGundamX:
As the video notes, al-Awlaki's family was indeed in the process of challenging it when the killing took place. I think that places the President in an awkward position from a legal standpoint. It'll be interesting to see where this goes if the family pursues this (sues for wrongful death or something), though I agree with you it seems like the odds are stacked in favor of the courts supporting the Presidential powers.

I don't see how they thought they might win such a challenge. All Al-Alwaki had to do was provide aid and comfort to the enemy, and it's over. And, well, his big thing was putting Al Qaeda recruitment videos on YouTube, so I'm thinking the government just plays one of those, and the case is over.

But in any case, his status when he was killed was still that of an enemy combatant. Now that he's dead, I suspect his legal status is no longer that of an enemy combatant, so there's nothing to challenge. And I suspect there's some Latin name for this, but I don't think courts are allowed to render something a crime by retroactively changing the legal status of things.

For example, say two people are getting a divorce, and the husband takes some jointly owned property with him when he moves out. Now suppose that when the divorce gets finalized, the court awards that property to the wife. The courts can't say "and it always was hers to begin with, so now we're charging you with larceny for taking it when you moved out".

You'd need to do something like that in order to make this killing a criminal act.

A wrongful death suit might fly though. But that's a civil suit, not a criminal charge.

But seriously, all this stuff is wrong. The President shouldn't have unilateral authority to declare people combatants and non-combatants. It should be uniformed members of the military of the nation we've declared war on. Everything else should be law enforcement, including chasing after terrorists.

The courts aren't going to make all that happen by fiat. That has to be a legislative effort, or it's just going to keep on going like this.

Thanks, Dudes! I'm still about the same, tho.


>> ^MonkeySpank:

Man QM, you have lightened up over these last few days! I like the new you! I'm going to upvote you even though I still disagree with you on other things.
>> ^quantumushroom:
No one is harder on Prez Soetoro than me and I think his sanctioned removal of another turbaned anus from the planet is just wonderful. There are plenty of American citizens who are enemies of legitimate American government, such as the entire taxocrat party.
Just kidding.
On a more serious note, His Earness never takes the killing of his fellow Muslim brothers lightly.
(Just kidding, he's a closet atheist).

>> ^bcglorf:

>> ^packo:
>> ^NetRunner:
There are two key questions that I think we should try to keep distinct here.
First, was this legal? Well, yes. This isn't a criminal matter, this is war. You don't put enemy forces on trial before you shoot them, you just shoot them. There are still limits on what you're allowed to do in war, but simply killing people is generally considered legal. Even targeting specific people providing aid and comfort to the enemy is not forbidden under the rules of war.
The other question is...should this be legal?
Well, I think the fact that declaring war on non-state organizations gives government latitude so wide that it becomes legal to engage in targeted killing of one of its own citizens is a pretty powerful reason to believe that it shouldn't be legal. An easy way to change the law to make it illegal would be to pass a resolution delcaring that AUMF against Al Qaeda null and void. Then this whole thing would revert to a matter of law enforcement, and not "national security".
The thing is, to prevent future Congresses from being able to declare war on non-state entities would require an amendment to the Constitution -- right now it just says Congress has the power to declare war, full stop. It doesn't say that they can't declare war on whatever entity they choose.
But I think people out there wanting to claim that it already is illegal simply haven't been paying attention.
politics

technically it isn't war because terrorists are not afforded the same rights as active participants in war... via the Geneva Convention for example
the burden of proof, and right to trial... are paramount in these times... when things are at their darkest, that's when upholding these value is MOST important (to point the finger at your opponent and say they aren't playing by the rules is quite CHILDISH, especially when you've went through such lengths to formalize the opinion in your citizens that the reason the enemy attacks is because they hate your freedoms/way of life
the problem with classifying people as terrorists and then assassinating them without any due process is that the "arguement" is made in the court of public opinion... usually by the media networks who are biased and lacking of journalistic integrity... if that's all you need to justify killing people, the arguement can QUICKLY/EASILY be made about ANYONE
the ONLY real, understandable reason I can contemplate would be putting these individuals to trial and making the proceedings available to the public would reveal many skeletons the US has in it's closet... but the validity and morality of this are another debate
as a religious text I don't believe in says (paraphrased)... how you treat the lowest of me, is how you treat all of me... this doesn't just equate to the poor/downtrodden... but to the most vile and unrepentant
holding your morality/standards to be so high compared to someone else means very little when you sacrifice them (irrespective of whether or not it is convenient or easy to do so)

You misunderstand.
It isn't war because America, or NATO or the west has declared war against the terrorists. That's not where this started. Your naive belief in that is what's tainting your understanding of this.
The Islamic Jihadists have openly declared and been waging war on us since long before the events of 9/11. The 'us' I refer to in this is not merely America, or the west, but anyone and everyone who is not themselves an Islamic fundamentalist as well.
You can fumble around all you want over reasons and 'proofs' that America is not really at war with the jihadists, but the reality is that THEY are at war with America. It is the very identity they have taken for themselves for pity sake. We've only been able to ignore it for so long because 90% of the casualties in this war have been middle eastern moderate muslims. Your ilk seem to want to claim sympathy for religious differences by allowing the status quo to continue were muslims get to continue to bear the full brunt of the jihadist war against us both. It's twisted and I detest it.


I never mentioned anything to the beginnings of hostilities.. you are making assumptions there. And with the government (multiple administrations) labelling these actions as the "WAR ON TERROR", by definition, they declared it war (even if they choose to not adhere to the rules of war)... the fact that they then went through the trouble (primarily for interrogation purposes) declared terrorists not covered by the Geneva Convention, and thus having no rights as war participants is what I was pointing out.

It's nitpicking, and childish to resort to a "who declared war on who" because if you want to get down to it, you are plainly ignoring western powers foreign diplomacy/intervention over the last 50+ years. There is many reasons why these fundamentalists are hostile... if "your way of life" actually makes the list, its not your love of fast food, miniskirts and women's rights... its how your way of life is subsidized through intervention in terms of their leadership, whether it be through installation of puppet/friendly regimes (no matter how oppressive/brutal) or through regime change or through economic hardships placed on nations who's leaders don't fall in line... let alone other issues such as Israel.

It's this police state mentality which garnered the West such a lovely reputation in the middle east... and as much as you'd love to point out it's for stability in the region, or so democracy can make inroads, or whatever other propaganda you happen to believe in... the truth is it has ALWAYS been about oil and oil money... not even in the interests of the western power's citizenry as much as for the oil lobbies.

Democracy and freedom are only ok as long as they fall in line with Western (particularly American) interest. If they were being honest it would be outfront there, plain as day the MAJOR issue there is ENERGY (and the money to be made from it).

So as much as you believe it is WESTERN nation's responsibility to solve problems (forcebly and usually without consent of those involved) in this manner, its EXACTLY this type of thinking that got us here. And if you honestly think we've only started meddling in the Middle East, you are naive (perhaps blind is a better word).

Extremism will only be defeated by the environment in the Middle East being such that it can't take root and grow. This will never be accomplished by force or political buggery.

You should stop playing cowboy's and indians, come back to reality, and start detesting the real issues at play here... not FOX TV political rhetoric.

All of the above doesn't even touch on the original point I made that if you are a US Citizen, you should be viewing the assasination of a US Citizen, at your government's sayso, without their providing ample reason (or any really) as to why he could not have been captured, with some foreboding... let alone the US government's denile of his family trying to get him legal representation etc...

If you want to hold yourself up as a shining beacon for the world to follow... when the going gets tough, better not falter or backup and do a complete 180, or all the preening and puffing you did early... it shines in a different light

What do they call that when 1 person (or entity) gets to decide what the laws are, at any given point in time, irrelevant as to what they may have been just a few moments earlier?

>> ^criticalthud:

"Al Queda" is a term created by the US government for a loose collection of groups who do not admire US foreign policy.

I'm the one who used the name Al Qaeda. The AUMF says this:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Not incidentally, that is also the AUMF for the war in Afghanistan as well.

>> ^SDGundamX:

The most important and relevant part of that case is that the courts decided that, although Bush had the presidential authority to name any American citizen an "enemy combatant," the American enemy combatant also had the right to challenge that status in court.

In the Jose Pedilla case, they arrested him when he came onto American soil, and then held him without trial on the basis that he was a prisoner of war, and not a criminal.

In the court battles that ensued, the courts decided that Jose Pedilla could challenge whether he was in fact a prisoner of war in court.

That does not mean that the government has to try all enemy combatants before killing them.

It means that people who get taken prisoner under some sort of wartime doctrine have the right to a day in court to challenge their status as being a participant in war.

>> ^SDGundamX:
He was not killed on a battlefield during combat (which would have been a legal killing)--he was quite clearly assassinated by his own government and without due process.

What's the definition of "battlefield" and "during combat"? Are soldiers in war never legally allowed to attack first? And what's the battlefield mean when we're talking about a non-state entity engaging in guerrilla warfare from strongholds located in many countries?

Again, I say all this not because I think it's right, but because it's where we're at now.

Obama didn't create this legal precedent. Obama isn't violating the law by using this to go after terrorists. I wish Obama was fighting it rather than using it, but wishing doesn't make it so any more than wishing it was illegal makes it illegal.

Obama deserves some shit for this, but I think Tapper's got exactly the right tack on the type of shit he deserves -- make the administration come out and explain a) what exactly they claim they have the right to do, b) explain why they think they have the right to do it, and c) explain whether their answers to a and b jives with their own view of American legal traditions.

The people who want to make this into "Obama committed a crime" aren't helping fix this, they're just helping Republicans win the next election.

>> ^criticalthud:

@bcglorf
why i'd be happy to. scroll up! and i'll quote:
"Do you want to discuss this like an adult, or just whine incoherently like a spoiled naive child?"
you might find that your ideas and opinions have a better impact when not accompanied by an insult. but hey, that's just me.
and when our government is murdering people, in our name, I tend to have somewhat high standards
...or maybe the word of our government is good enough? a quick glance at history reveals that our government has absolutely no problem saying whatever need to say in order to create a certain perception and keep business dealings draped in the american flag.
But if you haven't noticed, our government is largely run by corporate special interests, and they act according to those interests, not ours.


I class what I said as categorizing your comments and not your person. I believe you finished with "it's what we hung the nazi's for at Nuremberg". I class that incoherent and childish whining.

Meanwhile, immediately after complaining about how insulting my own language is, you state as matter of fact that the government is murdering people...

Sorry, I am responding to comments likening Obama to Hitler, Americans to nazis, and at the same time insisting that innocent until proven guilty in a court of law, beyond a shadow of doubt be the standard applied to self admitted terrorists. You aught not be surprised by the vehemence with I reject this ludicrous and disgusting double standard.

>> ^criticalthud:

@bcglorf
cheap comments? dude, half the time all you do is throw out insults at people. I think we can all agree that you're kind of a dick


Can you point me to an example?

I try to be pretty consistent in attacking peoples ideas and arguments without addressing the person. The closest I think I come to getting 'personal' is calling people out for holding foolish ideas. I'm not much for caring if it isn't PC to call truthers foolish for their beliefs.

I'm quite happy to admit I've been a fool and idiot in the past with my own ideas, and probably hold many now unbeknownst to myself yet. I find the fastest way to discover those is to stick to my guns on the stuff I think I understand until someone corrects me. In point of fact, I was right onside with 'you guys' up until I started listening to Hitchens assessments and discovered all the reasoning and evidence I was so proud of was all so much BS. I cheered when my country's PM refused to go into Iraq, I was proud of his principled stand. Now I'm ashamed I was a fool. I'm open to having my mind changed yet again, but nobody's yet brought up anything new to change it.

>> ^criticalthud:

look, let's say i suspect my neighbor down the street is a terrorist, and i'm real real sure he is, cause he sure looks like one...and i'm fairly certain he is plotting against me. And under the Bush doctrine of pre-emptive war, continued and enhanced under Obama, I should be justified in planting a 45 caliber bullet in his forehead. right?
or maybe that is ridiculous.
and maybe it's ridiculous that we think it's just peachy to hopscotch around the world, blowing up people who disagree with our policies.


You may need your eyes checked. Here are the two 'suspects' you are comparing:

1.Neighbor that looks suspicious, they maybe even wear a turban.
2.Man who's written multiple books and essays on how and why to wage Jihad against America on it's own streets. A man who we have phone records for his mentoring of a person that shot and killed multiple Americans on American soil.

Do those two look the same or remotely comparable to you? There's no question the precedent is troublesome, but you don't think your example is a touch.... extreme?

>> ^criticalthud:

@bmcs27 no i would call that a terrible waste of time. go ahead and look up the politics of landmines and you may be surprised at which country is both adamant about the production and continued use of them. and yeah, i've been to cambodia. another country we had absolutely no business sticking our nose into.
@NetRunner. "Al Queda" is a term created by the US government for a loose collection of groups who do not admire US foreign policy.
why are we there? well, before we hated the taliban, we loved em. but either way they are still sitting on trillions in minerals and rare earth deposits.
but hey, lets pretend little johnny is over there ensuring our safety from further crotch-bombers.


Your dead right on Cambodia, after all the horrific things Kissinger's lackeys did to there they followed it up by supporting the Khmer Rouge.

On Al-Qaida, you are just flat wrong. Bin Laden came up with the name for his particular cult of international islamic jihadists.

You are also wrong on the Taliban. During the push to remove the Soviets from Afghanistan, the American's backed Pakistan and it's training of Afghan and imported mujahideen warriors. Those mujahideen warriors were NOT the Taliban, they were a disparate collection of all manner of different local and imported fighters. The Taliban were not the only group to come from this Pakistan and American backed crowd, so where the Northern Alliance fighters whom the Taliban sought to destroy. It's fun to make cheap comments like yours, but that doesn't make them accurate or true.

>> ^criticalthud:

yes, we can debate laws and other agreements of questionable merit. but
i kind of think the US is acting like an asshole. our image worldwide is fucked.
does anyone not get that we militarily occupy their holy land? we got our fingers so deep in their pants. we declare war when it suits us, and we blast them with drones and gunships from afar - and, quite naturally, they see it as acts of cowardice.
and then we have headlines about killing the guy who made an underwear bomb that didn't work. whoopee, we killed the crotch-bomber. the world is safe. billions of dollars and a ruined world image, while we create 10 enemies for every one we kill. what a sick stupid joke.


My 21yo cousin is hiking through Afghanistan with his M4. You call that cowardice?

Every day he's sending pictures of the kids' school he's protecting, or the land mines he's removing. Those Taliban types, they've sure got honor on their side.

>> ^SDGundamX:

@NetRunner
@bcglorf
I think it might be useful to look at the case of Jose Padilla. Remember him? Accused of plotting a radiological bomb attack in the U.S., later classified by Bush as an enemy combatant, later again return to the criminal court system (and subsequently convicted of conspiring to engage in terrorist activity).
The most important and relevant part of that case is that the courts decided that, although Bush had the presidential authority to name any American citizen an "enemy combatant," the American enemy combatant also had the right to challenge that status in court. In other words, although the AUMF grants the President wide powers in determining who is associated with the attacks on 9/11 (or future attacks), those powers don't trump the Constitution.
As far as I can tell in this case, al-Awlaki was never given the chance to challenge his status in court. He was not killed on a battlefield during combat (which would have been a legal killing)--he was quite clearly assassinated by his own government and without due process.
BUT, as @NetRunner point out, in the current judicial climate, if this were ever to make it before the courts (it never will), it is a crap shoot as to which way the cards will fall on the issue. The courts seem to be leaning more towards strengthening Presidential authority than weakening it, in particular when it comes to the area of National Security.
EDIT: Originally typed "civil court" when I meant "criminal court."


I think all of us that don't outright oppose the death here are ALL agreed a court hearing and prosecution would have been infinitely preferable. We are saying the reality is that was NEVER going to happen, ever. In that reality, what do you do about a man supporting the murder of people from the safety of a lawless region of a country where anyone even suspected of sympathizing with our idea of law and order would be killed?

As was pointed out up thread, if you oppose this, propose an alternative?

Presumably not killing him, no? That means owning and accepting that he can act from Yemen's fringes with impunity trying to murder innocent civilians abroad, and the right course of action for us is not to act, even though we have the ability to stop him with a drone attack. Own that and we at least have a disagreement on the principles and not the fundamental facts and nature of the problem.

>> ^bcglorf:

^Duckman33
Can you edit the above so it's not quoting me on your words, I know you wanna be me, but I don't wanna be thought to be saying things you are saying.


Wow posted that 2 seconds ago and you already replied? Stalk much?

About which part? That we don't criminally charge the enemy soldiers in a war before shooting them? That courts have generally upheld the Bush "it's a war, so I don't need to listen to Constitutional protections for criminals" view?

That it's a crappy way for things to be and that it should be changed?

>> ^Yogi:

>> ^NetRunner:
Ummm yeah. The Fifth, Sixth and Fourteenth amendments are talking about crimes. Al-Alwaki was not charged with a crime, nor was his death a punishment for one. He was a soldier for a foreign army who we have a declaration of war with, and our military killed him.
This is sorta like saying that in every war, the US forces can't fire a shot until each individual soldier they target has been tried and convicted of a capital crime.
It doesn't work that way.
Now I agree, this is a crappy way to do things, but it wasn't my idea. I think the courts should've stopped it under Bush, but instead they pretty much completely upheld the Constitutional and legal validity of this stance.
It's true that Obama isn't taking action to limit the power of the office he's in, but I think that's a much lesser charge than what you're aiming for.

I usually agree with you...but you're wrong here.

>> ^dag:

Sorry @NetRunner, I have to disagree with you on this one. Have we actually declared war on Awlaki's organisation? I don't think so. And his US citizenship is very pertinent here. Next time it may be the executive branch deciding to take out a "domestic terrorist". Due process should be a right for all US citizens, it's enshrined in the constitution. Good on Jake Tapper, the guy's got big heroic journalist balls.


"Awlaki's organization" is Al Qaeda. Technically the AUMF (what passes for declarations of war these days), was against "those responsible for the [9/11] attacks", aka Al Qaeda. So yes, we declared war.

And it's not the executive branch that decides who we're at war with, it's Congress. And Congress declared war on Al Qaeda.

But the upshot is that you don't disagree with me. I don't think this is right. I don't think this is the way the law should be. I don't think this is in keeping with our values or morals as they have been traditionally, and certainly not where I'd like them to be.

Like I said in my first comment though, these are separate questions. One is about what is, the other is about what should be.

I think being in denial about where we really are just gets in the way of coming up with cogent strategies for getting to where we should be.

A court case against this isn't some sort of slam dunk. In the current court environment, you're a lot more likely to see the courts validate its legality rather than repudiate it. Certainly the legal opinions of either blankfist or me aren't binding.

If you want a permanent fix, it needs to be legislative. It might even require a Constitutional amendment, especially if we wind up with a Scalia-led decision from the Supreme Court.

>> ^NetRunner:

>> ^blankfist:
Does AUMF trump the Fifth, Sixth and Fourteenth Amendment? In other words, does the 2001 Congressional resolution you cited as grounds for legal assassination of U.S. citizens exceed the authority of the Constitutional protections of due process? Trick questions. The answer is no they don't.
Al-Awlaki was assassinated as a suspect without ever being charged with a crime. Obama has followed Bush into completely removing the rights of the people to due process.

Ummm yeah. The Fifth, Sixth and Fourteenth amendments are talking about crimes. Al-Alwaki was not charged with a crime, nor was his death a punishment for one. He was a soldier for a foreign army who we have a declaration of war with, and our military killed him.
This is sorta like saying that in every war, the US forces can't fire a shot until each individual soldier they target has been tried and convicted of a capital crime.
It doesn't work that way.
Now I agree, this is a crappy way to do things, but it wasn't my idea. I think the courts should've stopped it under Bush, but instead they pretty much completely upheld the Constitutional and legal validity of this stance.
It's true that Obama isn't taking action to limit the power of the office he's in, but I think that's a much lesser charge than what you're aiming for.


I usually agree with you...but you're wrong here.