"And Obama's new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House."
The US, by law, is supposed to treat all people the same regardless of nationality. In a court of law, for example, illegal immigrants get the same rights as full citizens.
So far so good, right?
Well guess what? That means that in situations wherein it's legal for the military to kill a foreigner, it's legal for the military to kill a citizen as well. Equality works both ways. If an American citizen is engaged in terrorist/hostile military activity outside of US legal jurisdiction, then the military has just as much legal authority to kill that citizen as they'd have to kill any non-citizen.
Read any history text on the American Revolution to see why that's a bad policy.
The opposite policy is interesting though, following from "all men are created equal", we won't kill American citizens without due process or cause therefore we shouldn't kill any person of any nation without due process or cause.
You're wrong because the rules that apply in U.S. courts are not the rules the apply to U.S. government actions everywhere in the world. Courts are basically domestic institutions, by Constitutional design. The Framers intentionally did not give the judiciary a role in foreign affairs like they did for Congress and the President. Judging whether military killings abroad are "legal" would intrinsically involve the courts impinging on a domain reserved for the president and congress.
The only thing limiting what the U.S. can do abroad are treatises. However, there is an exception: Americans carry their Constitutional rights abroad by virtue of their citizenship. Generally, the U.S. government cannot kill am American abroad without due process because the citizenship link gives U.S. courts the necessay jurisdiction to enforce those rights.
You're wrong because of Reid vs Covert in 1957. The US government is still constrained by the constitution when acting against US citizens outside of US borders.
quoting the linked page... [edit: note that what Justice Black says applies whether or not the person is in US custody. He's laying out a restriction on ANY action by the US government against a US citizen outside of the US... the restriction against the US government has nothing to do with her detention]:
the Court held that American citizens outside of the territorial jurisdiction of the United States retain the protections guaranteed by the United States Constitution. Accordingly, the decision below granting Mrs. Covert’s habeas petition was affirmed. Black wrote: “[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”
Assassinations and extrajudicial killings go against both US and international law. We shouldn't be killing anyone with drone attacks without Congress first declaring war. It's a serious matter to deprive anyone of their life or liberty. That's why the US constitution made such a big deal about due process and a balance of power between the various branches of government to prevent abuse. Our pledge of allegiance calls for "liberty and justice for all". Where is the justice for the US citizen who's about to be blown to smithereens? Not to mention, the potential for abuse as current or future administrations use this power to silence dissenters without any transparency or accountability to the American people.
This is a grab bag of ideas not grounded in any reality. E.g. The Pledge of Alleigance wasn't written until 1892 and wasn't adopted by Congress until 1942. Also, there is no magic words necessary to declare war. The AUMF passed by Congress counts.
Sorry that my mention of the Pledge of the Allegiance set you off. My point was that American ideals have always been that everyone deserves a fair trial & due process.
Peacetime assassinations have been officially banned by the US since 1976. The AUMF gets around that by saying we're perpetually at war now. The AUMF is part of the problem.
My point is that mentioning the pledge of allegiance, written a century after the founding, to justify "american ideals" that have always existed is historical revisionism. The fact is that the framers didn't think blacks in America had rights, and codified that into the Constitution. You think they believed that brown people in Yemen had rights? Its absurd historical revisionism. You think Thomas Jefferson sent the Navy to Tripoli to give people trials and due process? Rights apply to citizens and those who are under our jurisdiction by virtue of being present on U.S. soil. Its not something that protects foreigners from American military action. No nation I'm aware of disparages the sovereign right of nations to meet foreign aggression with like.
"The US, by law, is supposed to treat all people the same regardless of nationality. In a court of law, for example, illegal immigrants get the same rights as full citizens."
Well, no. There are actually quite a lot of differences in rulings particulary in war.
That's at least what I believe you are misquoting.
Obama has essentially stripped Americans of their right to due process, a jury of their peers, and the ability to confront their accusers in a court of law - and has relegated us to the same legal status of non-US citizens when it comes to being targeted for assassination.
You're not wrong (at least on the main points). The problem here is that with the declaration of war against al qaeda (technically, the "authorization for use of military force against terrorists") the entire world outside of the US became a de facto battlefield, and the President has a huge amount of discretion in saying "this piece of land is now a battlefield, this person is declared to be a high-ranking commander of enemy forces and therefore can be summarily executed via drone strike". It's a very weird and non-traditional form of warfare that is warping our institutions and the attempts at limiting government power that are supposed to exist within the constitution and the law.
But isn't the US only using these assassinations in cases when taking the person prisoner is not immediately plausible?
For instance, someone wanted in Italy: The US could very plausibly have the individual arrested and extradited. Hence no drone strikes in Italy.
Arresting an individual in rural Yemen, however? Well that's tricky. Arresting the person isn't really plausibly easy nor straight forward. Hence the assassination.
(Funny thing, of course: Italy was where the US gov't seized that guy several years ago - kidnapped him for "extraordinary rendition". Still - the point stands; the rendition is illegal and crazy - arresting when plausible, assassinating otherwise.)
"But the alternatives are difficult" is not a good enough answer for me. Look at it from the other side. It's difficult to fight the strongest army in the world conventionally, therefore acts of terrorism against civilians are more effective.
In any event, in practice there is little effective difference in terms of selectivity and collateral deaths of innocents between drone strikes and car bombs, they are highly questionable as an effective weapon of war or even an effective weapon of assassination.
I'm not certain that either of your points are relevant? I'm not arguing efficacy, more legality and morality: If it is not plausible to bring someone to custody, and if the US is at war with them, then it seems reasonable that assassination would be perfectly legal and moral.
Totally. The US assassinated Admiral Yamamoto during WWII and I think that was a perfectly valid and even moral thing to do. But, as with all things, the devil is in the details. Assassination as a weapon of war can sometimes be worthwhile, even moral, but when it requires the spread of the "battlefield" to nearly the entire world and when it routinely takes the lives of bystanders needlessly then its validity and usefulness comes into sharp question. Even more so when it is exercised based on secret information.
We've been blowing up a lot of down-level al qaeda leaders and operatives (at least folks who have been alleged to be such) and in the process we've killed a substantial number of bystanders and innocents. Either through accidents or through collateral damage. As I mentioned, in practice the drone strikes have been about as effective and as precisely targeted as using car bombs would have been. If the US had been blowing up al qaeda leaders using car bombs I think the perception of the campaign would be markedly different.
The existing rules of warfare are there because war is chaotic and anarchic, and without a firewall between warfare and civilized society then it becomes all too easy for violence and warfare to be used as a political tool at home. Caesar crossing the rubicon, as it were. I believe we are dangerously close to such a situation today.
Okay, so I think that we're distilling closer to where we actually disagree. Here's what I think is the strongest argument I can make about why this particular assassination of a US citizen is not the harbinger of anarchy nor a new low in the morality of war:
Imagine a conversation via time machine the between framers of the US Constitution and the National Security Advisor.
Current Day National Security Advisor: So, hey guys. We're about to assassinate a US citizen who's on foreign soil.
Framers: WHAT?!?!?
NSA: Well... it's a tough situation.
F: NONONONO. This is not acceptable under any circumstance! What the hell??
NSA: Well, he's joined a foreign army. And we're at war with that army. We've been at war with them for a really long time.
F: So what? Why do you have to assassinate him? He'll meet you on the field of battle somewhere, and he'll fight and live or die just like any other soldier.
NSA: Well yeah, that's the thing. This army doesn't ever fight our army. They disguise themselves as civilians and bomb our own civilians, or the civilians of other countries.
F: Huh.
NSA: Ya. They don't really even try to attack our military. They seem pretty happy just killing bystanders.
F: So just arrest him and bring him to trial then.
NSA: Well... he's living in a lawless part of the world. The nominal government there doesn't have the ability to arrest him. And it's too dangerous to send our own officers to make the arrest. But we've got this really cool weapon which can kill him from afar.
F: So this guy has joined an army which he knows is at war with the US, he's stationed in an area where no legitimate government - even our own - can reasonably arrest him, and there's no foreseen situation in which our army and his army will actually get to fight?
NSA: Yup.
--
The extraordinary nature of this situation is what, to my mind, makes such assassinations totally unthreatening to traditional notions of law, moral war, and international order. If the guy were located in any part of the world with a functioning and accountable government, the situation would be different: in that case, the US gov't must work with local authorities to bring him to justice.
So no, I'm not talking about waging war in the whole world. A few very small slivers of the world, and slivers which may change over time: Maybe one day Somalia will be Kenya and Kenya will be Somalia - though I certainly hope both become Kenya!
It's a bit more complex. For example, in many situatiosnan illegal immigrant doesn't have the same access to a court of law; if detained by immigration authorities, for example, such a person can be held for 6 months before being granted a hearing; some crimes are punished more severely if committed by an illegal immigrant, and various other differences obtain. Note that in the constitution there is some distinction between persons and citizens, and Congress has often exploited such discrepancies when crafting immigration law.
However, I agree with your basic point about people engaged in terrorism & hostile military activity. Due process is not and has not been a shield for people to head for another jurisdiction and thereby immunize themselves from reprisal while engaging in military action as distinct from previous criminal activity. The imminence and severity of the hostile threat is obviously an important factor in grading the appropriate response.
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[ 2.4 ms ] story [ 71.1 ms ] thread"And Obama's new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House."
So much WTF in one sentence.
The US, by law, is supposed to treat all people the same regardless of nationality. In a court of law, for example, illegal immigrants get the same rights as full citizens.
So far so good, right?
Well guess what? That means that in situations wherein it's legal for the military to kill a foreigner, it's legal for the military to kill a citizen as well. Equality works both ways. If an American citizen is engaged in terrorist/hostile military activity outside of US legal jurisdiction, then the military has just as much legal authority to kill that citizen as they'd have to kill any non-citizen.
Tell my why I'm wrong.
The opposite policy is interesting though, following from "all men are created equal", we won't kill American citizens without due process or cause therefore we shouldn't kill any person of any nation without due process or cause.
The only thing limiting what the U.S. can do abroad are treatises. However, there is an exception: Americans carry their Constitutional rights abroad by virtue of their citizenship. Generally, the U.S. government cannot kill am American abroad without due process because the citizenship link gives U.S. courts the necessay jurisdiction to enforce those rights.
http://www.oyez.org/cases/1950-1959/1955/1955_701_2
If an American-citizen-suspected-terrorist were in US custody, I might agree.
But the issue here quite specifically concerns those not in US custody - and whom the US is not able to reasonably gain custody over.
the Court held that American citizens outside of the territorial jurisdiction of the United States retain the protections guaranteed by the United States Constitution. Accordingly, the decision below granting Mrs. Covert’s habeas petition was affirmed. Black wrote: “[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”
Peacetime assassinations have been officially banned by the US since 1976. The AUMF gets around that by saying we're perpetually at war now. The AUMF is part of the problem.
Well, no. There are actually quite a lot of differences in rulings particulary in war.
Not nationality - national origin.
http://www.justice.gov/crt/legalinfo/natorigin.php
That's at least what I believe you are misquoting.
Obama has essentially stripped Americans of their right to due process, a jury of their peers, and the ability to confront their accusers in a court of law - and has relegated us to the same legal status of non-US citizens when it comes to being targeted for assassination.
https://en.wikipedia.org/wiki/Church_Committee
You'll notice that the Church Commission recommendations against assassination were revoked by executive order by President Reagan.
For instance, someone wanted in Italy: The US could very plausibly have the individual arrested and extradited. Hence no drone strikes in Italy.
Arresting an individual in rural Yemen, however? Well that's tricky. Arresting the person isn't really plausibly easy nor straight forward. Hence the assassination.
(Funny thing, of course: Italy was where the US gov't seized that guy several years ago - kidnapped him for "extraordinary rendition". Still - the point stands; the rendition is illegal and crazy - arresting when plausible, assassinating otherwise.)
In any event, in practice there is little effective difference in terms of selectivity and collateral deaths of innocents between drone strikes and car bombs, they are highly questionable as an effective weapon of war or even an effective weapon of assassination.
We've been blowing up a lot of down-level al qaeda leaders and operatives (at least folks who have been alleged to be such) and in the process we've killed a substantial number of bystanders and innocents. Either through accidents or through collateral damage. As I mentioned, in practice the drone strikes have been about as effective and as precisely targeted as using car bombs would have been. If the US had been blowing up al qaeda leaders using car bombs I think the perception of the campaign would be markedly different.
The existing rules of warfare are there because war is chaotic and anarchic, and without a firewall between warfare and civilized society then it becomes all too easy for violence and warfare to be used as a political tool at home. Caesar crossing the rubicon, as it were. I believe we are dangerously close to such a situation today.
Imagine a conversation via time machine the between framers of the US Constitution and the National Security Advisor.
Current Day National Security Advisor: So, hey guys. We're about to assassinate a US citizen who's on foreign soil.
Framers: WHAT?!?!?
NSA: Well... it's a tough situation.
F: NONONONO. This is not acceptable under any circumstance! What the hell??
NSA: Well, he's joined a foreign army. And we're at war with that army. We've been at war with them for a really long time.
F: So what? Why do you have to assassinate him? He'll meet you on the field of battle somewhere, and he'll fight and live or die just like any other soldier.
NSA: Well yeah, that's the thing. This army doesn't ever fight our army. They disguise themselves as civilians and bomb our own civilians, or the civilians of other countries.
F: Huh.
NSA: Ya. They don't really even try to attack our military. They seem pretty happy just killing bystanders.
F: So just arrest him and bring him to trial then.
NSA: Well... he's living in a lawless part of the world. The nominal government there doesn't have the ability to arrest him. And it's too dangerous to send our own officers to make the arrest. But we've got this really cool weapon which can kill him from afar.
F: So this guy has joined an army which he knows is at war with the US, he's stationed in an area where no legitimate government - even our own - can reasonably arrest him, and there's no foreseen situation in which our army and his army will actually get to fight?
NSA: Yup.
--
The extraordinary nature of this situation is what, to my mind, makes such assassinations totally unthreatening to traditional notions of law, moral war, and international order. If the guy were located in any part of the world with a functioning and accountable government, the situation would be different: in that case, the US gov't must work with local authorities to bring him to justice.
So no, I'm not talking about waging war in the whole world. A few very small slivers of the world, and slivers which may change over time: Maybe one day Somalia will be Kenya and Kenya will be Somalia - though I certainly hope both become Kenya!
However, I agree with your basic point about people engaged in terrorism & hostile military activity. Due process is not and has not been a shield for people to head for another jurisdiction and thereby immunize themselves from reprisal while engaging in military action as distinct from previous criminal activity. The imminence and severity of the hostile threat is obviously an important factor in grading the appropriate response.