The White House's legal justification for killing Americans

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The Something Awful Forums > Discussion > Debate & Discussion > The White House's legal justification for killing Americans

theblackw0lf: Apr 14, 2003; "...creating a vision of the sort of society you want to have in miniature"

I think this paper really merits discussion, especially from the legal minds here

http://openchannel.nbcnews.com/_new...-americans?lite

quote:

A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.

The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”

But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.

The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.

Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”

In particular, Jaffer said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”

A Justice Department spokeswoman declined to comment on the white paper. The spokeswoman, Tracy Schmaler, instead pointed to public speeches by what she called a “parade” of administration officials, including Brennan, Holder, former State Department Legal Adviser Harold Koh and former Defense Department General Counsel Jeh Johnson that she said outlined the “legal framework” for such operations.

Pressure for turning over the Justice Department memos on targeted killings of Americans appears to be building on Capitol Hill amid signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday.

On Monday, a bipartisan group of 11 senators -- led by Democrat Ron Wyden of Oregon — wrote a letter to President Barack Obama asking him to release all Justice Department memos on the subject. While accepting that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the country, it said, “It is vitally important ... for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority.”

The completeness of the administration’s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act. McMahon, describing herself as being caught in a “veritable Catch-22,” said she was unable to order the release of the documents given “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.”

In her ruling, McMahon noted that administration officials “had engaged in public discussion of the legality of targeted killing, even of citizens.” But, she wrote, they have done so “in cryptic and imprecise ways, generally without citing … any statute or court decision that justifies its conclusions.”

In one passage in Holder’s speech at Northwestern in March, he alluded – without spelling out—that there might be circumstances where the president might order attacks against American citizens without specific knowledge of when or where an attack against the U.S. might take place.

“The Constitution does not require the president to delay action until some theoretical end-stage of planning, when the precise time, place and manner of an attack become clear,” he said.

But his speech did not contain the additional language in the white paper suggesting that no active intelligence about a specific attack is needed to justify a targeted strike. Similarly, Holder said in his speech that targeted killings of Americans can be justified if “capture is not feasible.” But he did not include language in the white paper saying that an operation might not be feasible “if it could not be physically effectuated during the relevant window of opportunity or if the relevant country (where the target is located) were to decline to consent to a capture operation.” The speech also made no reference to the risk that might be posed to U.S. forces seeking to capture a target, as was mentioned in the white paper.

The white paper also includes a more extensive discussion of why targeted strikes against Americans does not violate constitutional protections afforded American citizens as well as a U.S. law that criminalizes the killing of U.S. nationals overseas.

It also discusses why such targeted killings would not be a war crime or violate a U.S. executive order banning assassinations.

“A lawful killing in self-defense is not an assassination,” the white paper reads. “In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”

You can read the paper here

http://msnbcmedia.msn.com/i/msnbc/s...White_Paper.pdf

One of the things that's disturbing about this is that it describes a broad range of legal authority that one would assume should be unconstitutional, but would likely stand up against a constitutional challenge. Meaning that our main safeguard against violations of our liberties, the constitution, can't protect us from these violations by this or any subsequent administration. Unless congress passes legislation, what's to stop any President from using this legal justification to violate the rights of citizens that go well beyond what the founding fathers would have accepted?

Granted much of the rights implied come from the AUMF, so once that ends then so would this legal authority the executive branch at this time appear to have.

Please do take the time to actually read the paper though, and report on the contents of the paper itself.

# ? Feb 5, 2013 18:12

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# ? May 22, 2013 10:51

gvibes: Jan 18, 2010; Leading us to the promised land (i.e., one tournament win in five years)

It does not seem to me that the analysis hinges on the AUMF, and I don't think its repeal would stop these. The memo seems to rely in the alternative on a more general conception of self-defense in a number of places.

I was a bit disappointed that it did not elaborate further on the "infeasible" requirement.

The highlight is of course the memo's treatment of the word "imminent." All I can say is wow.

# ? Feb 5, 2013 18:25

Paul MaudDib: May 2, 2006

theblackw0lf posted:

Please do take the time to actually read the paper though, and report on the contents of the paper itself.

I'm not one of the legal minds here, but it's more or less what I expected. The administration reserves the right to assassinate anyone they deem an "operational leader" after a death-panel "due process" which you will not be allowed to attend and which will not feature actual evidence of your guilt.

If there's no transparency and no oversight, it's only a matter of time before this is abused and we get even more authority creep.

# ? Feb 5, 2013 18:29

Hieronymous Alloy: Jan 30, 2009

gvibes posted:

The highlight is of course the memo's treatment of the word "imminent." All I can say is wow.

Yeah, I haven't had a chance to read the memo in depth yet, just listened to the discussion this morning on NPR, but I'd like to see someone use that definition of "imminent" in a normal self-defense claim. "Well, officer, no, he hadn't actually broken into my house yet, but I had some vague information that he'd at some point said he was thinking about breaking into my house, so I went ahead and shot him. Imminent danger!"

And we thought "stand your ground" had legal problems.

The lawyers who come up with these rationales need to be professionally sanctioned (just like John Yoo was, at least initially). They have a duty to their client to come up with broad interpretations, sure, but they also have a duty as officers of the court.

I also don't think it's defensible to keep legal arguments secret on national security grounds. That's an inherently invalid argument. Fact arguments, ok, Attorney/client privilege, ok, but there's no possible national security interest in keeping legal arguments secret.

Hieronymous Alloy fucked around with this message at Feb 5, 2013 around 18:33

# ? Feb 5, 2013 18:29

Goatman Sacks: Apr 4, 2011; Cool Cat thinks offense is for squares

I wonder if whoever wrote this will be on the ICC's "don't ever leave the US if you know what's good for you" list, along with Yoo.

# ? Feb 5, 2013 18:33

BUG JUG: Feb 17, 2005

Hieronymous Alloy posted:

Yeah, I haven't had a chance to read the memo in depth yet, just listened to the discussion this morning on NPR, but I'd like to see someone use that definition of "imminent" in a normal self-defense claim. "Well, officer, no, he hadn't actually broken into my house yet, but I had some vague information that he'd at some point said he was thinking about breaking into my house, so I went ahead and shot him. Imminent danger!"

The actual quote: "the condition that an operational leader present an "imminent" threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." You don't even have to think he might one day break into your house. You just have to think that 'hey, someday, that guy might do something.'

# ? Feb 5, 2013 18:44

TheImmigrant: Jan 18, 2011

Service in the military of a foreign state engaged in hostilities against the United States is constructive renunciation of US citizenship. This is a settled concept of the law of expatriation. There is definitely a colorable argument that al-Qaeda members* are no longer US citizens.

*Difficulty in defining "al-Qaeda membership" is one of many reasons why I oppose the assassination of US citizens.

TheImmigrant fucked around with this message at Feb 5, 2013 around 18:50

# ? Feb 5, 2013 18:44

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

Hieronymous Alloy posted:

The lawyers who come up with these rationales need to be professionally sanctioned (just like John Yoo was, at least initially). They have a duty to their client to come up with broad interpretations, sure, but they also have a duty as officers of the court.

I also don't think it's defensible to keep legal arguments secret on national security grounds. That's an inherently invalid argument. Fact arguments, ok, Attorney/client privilege, ok, but there's no possible national security interest in keeping legal arguments secret.

So, John Yoo wasn't professionally sanctioned. His opinions were repudiated as unsound by the OLC in '03 and were - internally and externally - considered a massive fuckup of legal reasoning, but the referral to his bar association didn't even go through. Referral was suggested at first and later countermanded, neither of which would've been a professional sanction (which would be issued by the bar). This also doesn't really meet the standards of the Torture Memos, either - I'm still parsing it, but the white paper isn't wrong when it notes the extreme flexibility of Fourth Amendment and foreign policy jurisprudence. I may disagree with the expansive read of imminence, but I'm not sure its bereft of merit if one looks at imminence not as relative to when the incident occurs but when the incident is set into motion and can be acted against. (I.e., is the imminence judged in relation to when the plane crashes into the WTC or when the hijackers take over the plane?).

I'm not sure why keeping legal arguments secret is "inherently invalid" either, because here, like in most first impression cases, the reasoning is inextricable from the facts. I don't necessarily agree that these should've been kept secret, but making a broad spectrum proclamation that it's inherent invalid seems to misunderstand how legal arguments work. This also kind of comes up with your discussion of duties to clients and duties as officers of the court, which are pretty well-established fields of law (and they kind of have to be), but the idea that there's a breach of the duty to the court because they make an argument that, while disagreeable, is not frivolous, is pretty clearly wrong.

TheImmigrant posted:

Service in the military of a foreign state engaged in hostilities against the United States is constructive renunciation of US citizenship. This is a settled concept of the law of expatriation. There is definitely a colorable argument that al-Qaeda members* are no longer US citizens.

*Difficulty in defining "al-Qaeda membership" is why I oppose the assassination of US citizens.

I think you can get around this with a clear standard for operational leader without requiring affiliation (so even a U.S. citizen mercenary contracted by al-Qaeda would be constructively renounced and a legitimate target) but then we get into cross-applying that standard to, say, domestic terrorism - can Obama drone strike the KKK?

# ? Feb 5, 2013 18:47

Hieronymous Alloy: Jan 30, 2009

The Warszawa posted:

So, John Yoo wasn't professionally sanctioned. His opinions were repudiated as unsound by the OLC in '03 and were - internally and externally - considered a massive fuckup of legal reasoning, but the referral to his bar association didn't even go through. Referral was suggested at first and later countermanded, neither of which would've been a professional sanction (which would be issued by the bar). This also doesn't really meet the standards of the Torture Memos, either - I'm still parsing it, but the white paper isn't wrong when it notes the extreme flexibility of Fourth Amendment and foreign policy jurisprudence. I may disagree with the expansive read of imminence, but I'm not sure its bereft of merit if one looks at imminence not as relative to when the incident occurs but when the incident is set into motion and can be acted against. (I.e., is the imminence judged in relation to when the plane crashes into the WTC or when the hijackers take over the plane?).

I'm not sure why keeping legal arguments secret is "inherently invalid" either, because here, like in most first impression cases, the reasoning is inextricable from the facts. I don't necessarily agree that these should've been kept secret, but making a broad spectrum proclamation that it's inherent invalid seems to misunderstand how legal arguments work. This also kind of comes up with your discussion of duties to clients and duties as officers of the court, which are pretty well-established fields of law (and they kind of have to be), but the idea that there's a breach of the duty to the court because they make an argument that, while disagreeable, is not frivolous, is pretty clearly wrong.

Ok, I was misremembering the referral -- I thought he'd been sanctioned and then the sanction was overturned.

Beyond that, you'll note I fairly clearly drew a distinction between facts and legal arguments. I take your point about reasoning being inextricable from facts, but that doesn't really apply here because there aren't facts yet; these are prospective legal memos about hypothetical sets of possible situations. There's a decent argument that, yes, the precise reasoning justifying Al-Awlawki's execution might need to be kept secret for fear of revealing operational details; and perhaps portions of even prospective memos might need to be kept secret for such reasons ("What? America has pre-crime technology now?"). As to the general theory justifying execution, though? It's general legal theory. You can't have a rule of law if the law is kept secret. You can't have judicial oversight if (for example) defense lawyers can't obtain clearance to review the evidence against their client. At that point you don't have judicial process, you have farce.

As to duty to court; the duty to not present frivolous arguments is not the only duty attorneys have as officers of the court. There's also a duty to not engage in illegal conduct. Justifying extra-judicial murder seems little different from assisting with fraud or some other such scenario where the lawyer's expertise is being misused to allow for what is ultimately criminal action. I see your point that this here might be more defensible than, say, Yoo's actions, but I think we can probably agree that Yoo's a clear example of a war criminal who should not be practicing law for that reason alone. I mean, yes, the U.N. Declaration of Human rights isn't the same law as the law of whatever region Yoo's currently licensed in, but I think the argument holds.

Hieronymous Alloy fucked around with this message at Feb 5, 2013 around 19:11

# ? Feb 5, 2013 19:04

gvibes: Jan 18, 2010; Leading us to the promised land (i.e., one tournament win in five years)

TheImmigrant posted:

Service in the military of a foreign state engaged in hostilities against the United States is constructive renunciation of US citizenship. This is a settled concept of the law of expatriation. There is definitely a colorable argument that al-Qaeda members* are no longer US citizens.

Unless I'm missing something (is there a text-searchable version somewhere?), the memo does not rely on this basis. e: at least, it seems like it would be a lot shorter memo if they could just say "not a citizen, due process doesn't apply."

The Warszawa posted:

I think you can get around this with a clear standard for operational leader without requiring affiliation (so even a U.S. citizen mercenary contracted by al-Qaeda would be constructively renounced and a legitimate target) but then we get into cross-applying that standard to, say, domestic terrorism - can Obama drone strike the KKK?

Leaving aside the infeasible requirement for a second, I don't see why not. And if, say, a group of domestic terrorists were holed up in a remote, armed compound of some sort, I imagine that would be sufficient to meet the infeasible requirement. But again, the memo does not really delve too deeply into that.

gvibes fucked around with this message at Feb 5, 2013 around 19:17

# ? Feb 5, 2013 19:08

Kiwi Ghost Chips: Feb 19, 2011; death to ios
death to os x
death to capitalism

TheImmigrant posted:

Service in the military of a foreign state engaged in hostilities against the United States is constructive renunciation of US citizenship. This is a settled concept of the law of expatriation. There is definitely a colorable argument that al-Qaeda members* are no longer US citizens.

*Difficulty in defining "al-Qaeda membership" is one of many reasons why I oppose the assassination of US citizens.

Also whether or not someone is a US citizen isn't a big issue in regard to drone strike legality (and certainly not morality).

# ? Feb 5, 2013 19:12

TheImmigrant: Jan 18, 2011

Kiwi Ghost Chips posted:

Also whether or not someone is a US citizen isn't a big issue in regard to drone strike legality (and certainly not morality).

Citizenship is the pivotal legal issue here, and we're discussing law, not morality.

# ? Feb 5, 2013 19:14

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

Hieronymous Alloy posted:

Ok, I was misremembering the referral -- I thought he'd been sanctioned and then the sanction was overturned.

Beyond that, you'll note I fairly clearly drew a distinction between facts and legal arguments. I take your point about reasoning being inextricable from facts, but that doesn't really apply here because there aren't facts yet; these are prospective legal memos about hypothetical sets of possible situations. There's a decent argument that, yes, the precise reasoning justifying Al-Awlawki's execution might need to be kept secret for fear of revealing operational details; as to the general theory justifying execution, though? It's general legal theory. You can't have a rule of law if the law is kept secret. You can't have judicial oversight if (for example) defense lawyers can't obtain clearance to review the evidence against their client. At that point you don't have judicial process, you have farce.

Right, but you were talking about keeping legal arguments secret being inherently invalid - I'm pointing out why that's not true, and why "law" and "facts" aren't as cleanly divided as one might think. I think this case was sufficiently attenuated from facts to remove the security justification, but you seemed to be making a much broader point.

quote:

As to duty to court; the duty to not present frivolous arguments is not the only duty attorneys have as officers of the court. There's also a duty to not engage in illegal conduct. Justifying extra-judicial murder seems little different from assisting with fraud or some other such scenario where the lawyer's expertise is being misused to allow for what is ultimately criminal action. I see your point that this here might be more defensible than, say, Yoo's actions, but I think we can probably agree that Yoo's a clear example of a war criminal who should not be practicing law for that reason alone. I mean, yes, the U.N. Declaration of Human rights isn't the same law as the law of whatever region Yoo's currently licensed in, but I think the argument holds.

Okay, but you're saying "this is illegal" when the issue is "is this illegal?" The argument in the white paper might not hold up, but if we're going to criminalize making an argument that ends up losing by making it participating in illegal conduct to offer a legal argument, the idea of legal representation is hosed. If I write my client a memo arguing that the stock repurchase it's going to engage in is legal under the prevailing interpretation of securities laws, and it goes to court and the court finds otherwise either by hewing to different precedent or overturning the precedent I relied upon, I haven't engaged in illegal conduct by "justifying" the illegal stock repurchase.

Also, Yoo's barred in Pennsylvania, and all of my experiences in that state lead me to believe that there are no human rights there.

# ? Feb 5, 2013 19:21

Hieronymous Alloy: Jan 30, 2009

The Warszawa posted:

Okay, but you're saying "this is illegal" when the issue is "is this illegal?" The argument in the white paper might not hold up, but if we're going to criminalize making an argument that ends up losing by making it participating in illegal conduct to offer a legal argument, the idea of legal representation is hosed. If I write my client a memo arguing that the stock repurchase it's going to engage in is legal under the prevailing interpretation of securities laws, and it goes to court and the court finds otherwise either by hewing to different precedent or overturning the precedent I relied upon, I haven't engaged in illegal conduct by "justifying" the illegal stock repurchase.

I feel like there's a fine line here. Let's stick with Yoo initially because he's a clearer example. Yoo should have known that the arguments he was making in defense of torture were not valid. He wasn't making an argument about prevailing interpretation; he knew, or should have known, that he was just providing a pretext for what was obviously illegal action. He belongs in jail, in part because, among his many other sins, he makes the job of legitimate legal defense more difficult by damaging the credit and reputation of other lawyers.

Like I said above, I haven't had time to read the full memo yet, but based on an initial scan it seems like this memo is closer to Yoo's situation than to yours -- if nothing else they seem to have stretched "imminent' beyond all bounds of reason. Maybe I'm wrong and it's more defensible than it first seems. But given the government's recent track record in this area (again, Yoo) I'm inclined towards suspicion.

# ? Feb 5, 2013 19:30

gvibes: Jan 18, 2010; Leading us to the promised land (i.e., one tournament win in five years)

The Warszawa posted:

Right, but you were talking about keeping legal arguments secret being inherently invalid - I'm pointing out why that's not true, and why "law" and "facts" aren't as cleanly divided as one might think. I think this case was sufficiently attenuated from facts to remove the security justification, but you seemed to be making a much broader point.

Yeah, maybe some initial Al-Alwaki memo was too fact-specific to be released, but it seems clear that, for some time now, there has been some not-very-fact-specific overarching legal justification for this executive power grab that could have been made public without jeopardizing our national security.

The Warszawa posted:

If I write my client a memo arguing that the stock repurchase it's going to engage in is legal under the prevailing interpretation of securities laws, and it goes to court and the court finds otherwise either by hewing to different precedent or overturning the precedent I relied upon, I haven't engaged in illegal conduct by "justifying" the illegal stock repurchase.

Is there some point where a memo is so legally or factually overreaching that it becomes illegal? That you become an accessory to the illegal act? I was thinking about this recently in a much more benign context, while reading the Lehman Brothers examiner's report. Lehman could not find a single law firm in the entire country that would write an opinion letter saying that its Repo 105 was a sale under GAAP because it so clearly was not. What if a firm did do so?

# ? Feb 5, 2013 19:32

theblackw0lf: Apr 14, 2003; "...creating a vision of the sort of society you want to have in miniature"

Since the definition of "imminent" is probably the most controversial aspect of the memo, I'm letting people know it's on pages 7 and 8 that discuss their broader view of imminent.

# ? Feb 5, 2013 19:38

Red_Mage: Jul 23, 2007; I should probably keep to posting about grognards in TGD, because when I discuss actual real-world politics with people who know what they're talking about, it becomes clear that I have trouble seeing things without a ruleset and character sheets.

The Warszawa posted:

I think you can get around this with a clear standard for operational leader without requiring affiliation (so even a U.S. citizen mercenary contracted by al-Qaeda would be constructively renounced and a legitimate target) but then we get into cross-applying that standard to, say, domestic terrorism - can Obama drone strike the KKK?

A genuinely good question, that has already been answered. The Ku Klux act passed in 1871 allowed the use of the military to keep the peace against terror organizations within the US. It was struck down by the supreme court after like a third of South Carolina was placed under martial law. So if Obama wants to drone strike the Klan (I am 100% behind this idea) he cannot use the military to do it, that's off limits.

But that said, there are organizations that are not the military that can be and are used against terror groups within the U.S., namely the FBI and NSA. I have no idea what the current legality of law enforcement using unmanned aircraft is, but I don't think there is much difference between CIRG using a plane or helicopter to do whatever the gently caress they plan to do, and CIRG using a drone.

# ? Feb 5, 2013 19:46

MrBigglesworth: Mar 26, 2005; Lover of Fuzzy Meatloaf

BUG JUG posted:

The actual quote: "the condition that an operational leader present an "imminent" threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." You don't even have to think he might one day break into your house. You just have to think that 'hey, someday, that guy might do something.'

Reminds me directly of "He's coming right for us!"

This "justification" provides for an extremely slippery slope that just sidesteps all of due process and is disgusting in it's implementation. What the hell happened to due process? How can this pass constitutional muster on the absolute face of it? In my opinion it can't and needs to be challenged as soon as possible.

It seems to tie in extremely close to the gun control issue. Someone buying a lot of guns/ammo? Could be an imminent threat building up, or what have you.

# ? Feb 5, 2013 19:59

gvibes: Jan 18, 2010; Leading us to the promised land (i.e., one tournament win in five years)

MrBigglesworth posted:

Reminds me directly of "He's coming right for us!"

This "justification" provides for an extremely slippery slope that just sidesteps all of due process and is disgusting in it's implementation. What the hell happened to due process? How can this pass constitutional muster on the absolute face of it? In my opinion it can't and needs to be challenged as soon as possible.

It seems to tie in extremely close to the gun control issue. Someone buying a lot of guns/ammo? Could be an imminent threat building up, or what have you.

There are not a whole lot of judges who would touch this.

# ? Feb 5, 2013 20:01

Kiwi Ghost Chips: Feb 19, 2011; death to ios
death to os x
death to capitalism

TheImmigrant posted:

Citizenship is the pivotal legal issue here, and we're discussing law, not morality.

Yes, for a few things like "imminence". The point is that under the DOJ's interpretation, there wouldn't be many situations where the legality of a killing would depend on their citizenship.

Goatman Sacks posted:

I wonder if whoever wrote this will be on the ICC's "don't ever leave the US if you know what's good for you" list, along with Yoo.

Nothing in the memo violates international law.

# ? Feb 5, 2013 20:02

theblackw0lf: Apr 14, 2003; "...creating a vision of the sort of society you want to have in miniature"

MrBigglesworth posted:

Reminds me directly of "He's coming right for us!"

This "justification" provides for an extremely slippery slope that just sidesteps all of due process and is disgusting in it's implementation. What the hell happened to due process? How can this pass constitutional muster on the absolute face of it? In my opinion it can't and needs to be challenged as soon as possible.

Have you read the memo? I'm not a legal expert, and have only given somewhat a glance at the due process discussions. But my initial reaction is that it actually would hold up to constitutional scrutiny, given previous precedent. And that's really disturbing. Because that would mean it would require new laws to curb that legal authority.

theblackw0lf fucked around with this message at Feb 5, 2013 around 20:11

# ? Feb 5, 2013 20:03

Red_Mage: Jul 23, 2007; I should probably keep to posting about grognards in TGD, because when I discuss actual real-world politics with people who know what they're talking about, it becomes clear that I have trouble seeing things without a ruleset and character sheets.

theblackw0lf posted:

Have you read the memo? I'm not a legal expert, and have only given somewhat a glance at the due process discussions. But my initial reaction is that it actually would hold up to constitutional scrutiny, given previous precedent. And THAT's what's really disturbing. Because that would mean it would require new laws to curb that legal authority.

Isn't that something that the U.S. has been doing since the Vietnam War though? I was under the impression that U.S. citizens who chose to align themselves with "the enemy" have traditionally been considered fair game in military actions. Admittedly the situation in the middle east is far more complicated than Vietnam (which itself was fairly complicated), but this doesn't seem to be that new (aside from perhaps the methods used, but given that they used nerve gas on suspected defectors during Operation Tailwind this seems marginally less scary).

# ? Feb 5, 2013 20:13

falcon2424: May 2, 2005; DUMBEST OF THE DUMB.THE EPITOME OF WHITE PRIVILEGE. REMEMBER THAT TIME HELLDUMP MADE YOU CLOSE DOWN YOUR FLICKR BECAUSE SEEING PENISES IN YOUR PORN THREATENS YOUR FRAGILE SEXUALITY? SO DO WE!

theblackw0lf posted:

Since the definition of "imminent" is probably the most controversial aspect of the memo, I'm letting people know it's on pages 7 and 8 that discuss their broader view of imminent.

Conditional on congress declaring that we're at war with a state/organization, a broad reading of 'imminent' seems like it would hold up.

If this were a traditional war, I can't imagine courts asking to review an administrative decision that a given high-ranking enemy officer was an immediate enough threat to be worth attacking.

Similarly, there's a question of "is person X actually a high-ranking officer?" that doesn't seem like it'd normally fall under judicial review.

The next question is if combatants who break the rules of war (by not wearing uniforms) should somehow get extra legal processes. It seems like this would be hard to argue.

To me, the big message to take away from this is that war is terrible. It actually does give military commanders the legal authority to order people killed without prior judicial review.

And that's why congress shouldn't declare war (or a war-like state) against amorphous, ill-defined entities, for un-defined duration and vast geographic regions.

# ? Feb 5, 2013 20:21

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

Red_Mage posted:

A genuinely good question, that has already been answered. The Ku Klux act passed in 1871 allowed the use of the military to keep the peace against terror organizations within the US. It was struck down by the supreme court after like a third of South Carolina was placed under martial law. So if Obama wants to drone strike the Klan (I am 100% behind this idea) he cannot use the military to do it, that's off limits.

But that said, there are organizations that are not the military that can be and are used against terror groups within the U.S., namely the FBI and NSA. I have no idea what the current legality of law enforcement using unmanned aircraft is, but I don't think there is much difference between CIRG using a plane or helicopter to do whatever the gently caress they plan to do, and CIRG using a drone.

Yeah, I'm familiar with the 1871 CRA and Harris, but I'm not sure that's not ripe for revisiting in light of the last 150 years of federal power jurisprudence.

Hieronymous Alloy posted:

I feel like there's a fine line here. Let's stick with Yoo initially because he's a clearer example. Yoo should have known that the arguments he was making in defense of torture were not valid. He wasn't making an argument about prevailing interpretation; he knew, or should have known, that he was just providing a pretext for what was obviously illegal action. He belongs in jail, in part because, among his many other sins, he makes the job of legitimate legal defense more difficult by damaging the credit and reputation of other lawyers.

Like I said above, I haven't had time to read the full memo yet, but based on an initial scan it seems like this memo is closer to Yoo's situation than to yours -- if nothing else they seem to have stretched "imminent' beyond all bounds of reason. Maybe I'm wrong and it's more defensible than it first seems. But given the government's recent track record in this area (again, Yoo) I'm inclined towards suspicion.

Yoo should've known because there were directly applicable laws in place regarding his subject that he was trying to skirt. Here's the problem with both analogies: we're in somewhat new territory - no one thinks that killing enemy leaders is a war crime, for example, even though torturing them is. I'm also really hesitant to talk about what's "obviously illegal" (with regard to this, not Yoo) in retrospect. I'm also hesitant to say someone should be in jail for writing a memo laying out a (horribly flawed) legal argument, and my inclination is usually to err on the side of not penalizing lawyers for offering legal counsel because the case wound up coming out the other way. I'm not sure this is meaningfully changed by the advice being legitimately reasoned or CYA because it's really difficult to draw the line between CYA and "bad lawyering."

gvibes posted:

Yeah, maybe some initial Al-Alwaki memo was too fact-specific to be released, but it seems clear that, for some time now, there has been some not-very-fact-specific overarching legal justification for this executive power grab that could have been made public without jeopardizing our national security.

Is there some point where a memo is so legally or factually overreaching that it becomes illegal? That you become an accessory to the illegal act? I was thinking about this recently in a much more benign context, while reading the Lehman Brothers examiner's report. Lehman could not find a single law firm in the entire country that would write an opinion letter saying that its Repo 105 was a sale under GAAP because it so clearly was not. What if a firm did do so?

It can become malpractice (where the client can sue you) or subject to professional sanction (where you will be disciplined by the bar), but not a criminal violation. This is a very good thing - if you, as counsel, can be held accountable for the crimes of your client, we're basically saying "representation only for the innocent."

# ? Feb 5, 2013 20:26

Dr. Tough: Oct 21, 2007

Red_Mage posted:

Isn't that something that the U.S. has been doing since the Vietnam War though? I was under the impression that U.S. citizens who chose to align themselves with "the enemy" have traditionally been considered fair game in military actions. Admittedly the situation in the middle east is far more complicated than Vietnam (which itself was fairly complicated), but this doesn't seem to be that new (aside from perhaps the methods used, but given that they used nerve gas on suspected defectors during Operation Tailwind this seems marginally less scary).

The accusations of chemical weapon use during Operation Tailwind turned out to be false and CNN retracted the story in which the accusations were made.

# ? Feb 5, 2013 20:37

Tibeerius: Feb 22, 2007

As a legal matter, why must a claim of self-defense establish "imminence" of an attack to be considered justified? If I could prove my next-door neighbor was plotting to kill me (and had killed others in past), would I not be justified in taking action before such an attack became "imminent"?

(Now in that analogy, justifiably "taking action" would consist of going to the police, not going after my neighbor on my own. However, if the police - and all ordinary avenues of law enforcement and due process - were not able to deter my neighbors plan, what non-violent options are left to me?)

So yeah, the use of "imminent" in this case doesn't bother me. What does worry me is the "infeasibility" justification, as that seems like the much MUCH slipperier slope. "Capture" missions will always be riskier than "Kill" missions. If your definition of what constitutes "undue risk" is left ambiguous, then one can easily see "undue risk" morphing into "any risk at all".

# ? Feb 5, 2013 20:37

Radbot: Aug 12, 2009; Please remind me to get a job so I can stop spending all day posting in D&D about how I'm an unemployable failure

Tibeerius posted:

As a legal matter, why must a claim of self-defense establish "imminence" of an attack to be considered justified? If I could prove my next-door neighbor was plotting to kill me (and had killed others in past), would I not be justified in taking action before such an attack became "imminent"?

No, you wouldn't.

Let's remember "material support" probably means "visited Al-Qaeda's YouTube page once" or "was entrapped by an FBI agent", and "undue risk" for capture/due process means "whenever we feel like not capturing someone, we won't".

# ? Feb 5, 2013 20:41

gvibes: Jan 18, 2010; Leading us to the promised land (i.e., one tournament win in five years)

falcon2424 posted:

Conditional on congress declaring that we're at war with a state/organization, a broad reading of 'imminent' seems like it would hold up.

I don't think this memo is limited to the groups we've declared war against. They don't parrot the words of the AUMF, but instead use the "and associated force"s language that is broader in scope than the AUMF (and was used in the NDAA).

The Warszawa posted:

It can become malpractice (where the client can sue you) or subject to professional sanction (where you will be disciplined by the bar), but not a criminal violation. This is a very good thing - if you, as counsel, can be held accountable for the crimes of your client, we're basically saying "representation only for the innocent."

I'm not sure how up to date this is, but http://www.gao.gov/new.items/d11664.pdf:

quote:

Another federal appeals court has ruled that recklessly false tax opinion letters could be the basis for primary Rule 10b-5 liability.

I don't know, I don't do securities law.

# ? Feb 5, 2013 20:45

Paul MaudDib: May 2, 2006

Tibeerius posted:

As a legal matter, why must a claim of self-defense establish "imminence" of an attack to be considered justified? If I could prove my next-door neighbor was plotting to kill me (and had killed others in past), would I not be justified in taking action before such an attack became "imminent"?

No, you would be guilty of murder in the first degree. We purportedly have a system that is based upon due process and rule of law, and if you have evidence that he's plotting to kill you then you take it to the authorities and they weigh the evidence and handle it or not as appropriate. The idea is that no one man gets to play cop, judge, jury, and executioner.

You certainly don't get to go blow up him and anyone in the neighboring houses and then hunt down his child too. I mean, maybe that's not what happened, but we'll never know because the administration refuses to tell anyone who they were after on that strike.

Paul MaudDib fucked around with this message at Feb 5, 2013 around 20:50

# ? Feb 5, 2013 20:45

Red_Mage: Jul 23, 2007; I should probably keep to posting about grognards in TGD, because when I discuss actual real-world politics with people who know what they're talking about, it becomes clear that I have trouble seeing things without a ruleset and character sheets.

Dr. Tough posted:

The accusations of chemical weapon use during Operation Tailwind turned out to be false and CNN retracted the story in which the accusations were made.

CNN retracted the story, but maintained that some of it was potentially true. My post should've read "may or may not have used some form of chemical gas in operation tailwind." Since the main investigating force maintaining no chemical agent was used was the Pentagon, who has a vested interest in there not having been use of a chemical agent.

# ? Feb 5, 2013 20:47

Tibeerius: Feb 22, 2007

Paul MaudDib posted:

No, you would be guilty of murder in the first degree. We purportedly have a system that is based upon due process and rule of law, and if you have evidence that he's plotting to kill you then you take it to the authorities and they weigh the evidence and handle it or not as appropriate. The idea is that no one man gets to play cop, judge, jury, and executioner.

Did you not read the rest of my post? I specifically acknowledged that going to the police was the correct course of action.

Edit:

Radbot posted:

No, you wouldn't.

Let's remember "material support" probably means "visited Al-Qaeda's YouTube page once" or "was entrapped by an FBI agent"...

I did say that I could prove that my neighbor was plotting, but if I follow your train of thought correctly then it sounds you don't believe that it has been proven that Anwar al-Awlaki was contributing to violence against the USA. Has the administration released/described such evidence? Are they claiming most of it is classified?

Tibeerius fucked around with this message at Feb 5, 2013 around 20:53

# ? Feb 5, 2013 20:49

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

gvibes posted:

I don't think this memo is limited to the groups we've declared war against. They don't parrot the words of the AUMF, but instead use the "and associated force"s language that is broader in scope than the AUMF (and was used in the NDAA).

I'm not sure how up to date this is, but http://www.gao.gov/new.items/d11664.pdf:

I don't know, I don't do securities law.

Yeah, neither do I, but "recklessly false" is a pretty high bar to clear at any rate.

# ? Feb 5, 2013 20:49

Paul MaudDib: May 2, 2006

Tibeerius posted:

Did you not read the rest of my post? I specifically acknowledged that going to the police was the correct course of action.

The rest of your post is some sort of insane hypothetical where you know that your neighbor is going to kill someone but the police and court system is ignoring it and the threat is not imminent (no weapons or bomb supplies purchased) but you go and murder him anyway.

That's literally George Zimmerman's cover story right there. If you think that sounds like a good course of action then you are equally deluded.

Paul MaudDib fucked around with this message at Feb 5, 2013 around 20:54

# ? Feb 5, 2013 20:51

Tibeerius: Feb 22, 2007

Paul MaudDib posted:

The rest of your post is some sort of insane hypothetical where you know that your neighbor is going to kill someone but the police and court system is ignoring it...

I used that hypothetical because it was the only way to make my analogy even remotely fit the circumstances of Anwar al-Awlaki's killing. He was beyond the reach of normal due process. Or do you believe there was a better way to have neutralized him that was overlooked?

# ? Feb 5, 2013 20:57

Radbot: Aug 12, 2009; Please remind me to get a job so I can stop spending all day posting in D&D about how I'm an unemployable failure

Tibeerius posted:

I used that hypothetical because it was the only way to make my analogy even remotely fit the circumstances of Anwar al-Awlaki's killing. He was beyond the reach of normal due process. Or do you believe there was a better way to have neutralized him that was overlooked?

What's the point of neutralizing him? He didn't have any resources or connections. There are probably hundreds of millions of people in the world that truly hate America but that don't have the capability or desire to become terrorists, should we kill them preemptively too? Honestly there have been LF posters that have displayed stronger anti-American tendencies than al-Awlaki has ever been proven of showing. Of course, I'm of the opinion that killing individuals as a way of stopping terrorism is P fuckin' dumb.

# ? Feb 5, 2013 20:59

Paul MaudDib: May 2, 2006

Tibeerius posted:

I used that hypothetical because it was the only way to make my analogy even remotely fit the circumstances of Anwar al-Awlaki's killing. He was beyond the reach of normal due process. Or do you believe there was a better way to have neutralized him that was overlooked?

He was only "beyond the reach of normal due process" because the government did everything possible to put him there.

quote:

In 2010, the two groups helped Nasser al-Awlaki in an effort to obtain a court injunction against government efforts to kill his son. A federal judge threw out the case, primarily on the ground that Nasser al-Awlaki had no standing to sue in place of his son. Now Nasser al-Awlaki and Ms. Khan represent the estates of their sons and his grandson.

But the new lawsuit may face other procedural impediments before it would reach any substantive ruling on whether the strikes violated the Constitution — or even a public acknowledgment that the United States government did carry them out and an explanation of the evidence and decision-making behind them.

The Justice Department, which is likely to provide lawyers for the defendants, may ask a judge to dismiss the case by asserting that the evidence necessary to litigate it would disclose state secrets, or that decisions about whom to kill in an armed conflict are “political questions” not fit for judicial review. The government asserted both arguments in the 2010 case, and the judge who dismissed that lawsuit also cited the “political question” doctrine.

Even if a judge declined to dismiss the case on those grounds, the officials could assert that “qualified immunity” protected them from lawsuits that accuse them of violating someone’s constitutional rights while performing official actions that did not violate “clearly established law” at the time. President Obama is not named in the lawsuit; the Supreme Court has ruled that presidents enjoy “absolute immunity” from lawsuits stemming from their official actions.

http://www.nytimes.com/2012/07/19/w...yemen.html?_r=0

There's been plenty of opportunities to get into the generalities of assassinations or the specifics of this guy's case, the US has done its damnest to make sure they never see the light of a courtroom.

Paul MaudDib fucked around with this message at Feb 5, 2013 around 21:03

# ? Feb 5, 2013 20:59

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

Paul MaudDib posted:

He was only "beyond the reach of normal due process" because the government did everything possible to put him there.

http://www.nytimes.com/2012/07/19/w...yemen.html?_r=0

Okay, talking about unsuitability doctrine or qualified immunity in terms of "the government tried to put him beyond the reach of normal due process" is bizarre. I'll be the first to say that standing doctrine is incredibly hosed up and limits access to courts on a number of issues, but you can't talk about rule of law and then bitch that standing doctrine or political question doctrine excludes certain cases and should've been set aside here absent a larger discussion of standing reforms.

# ? Feb 5, 2013 21:04

Tibeerius: Feb 22, 2007

Radbot posted:

He didn't have any resources or connections.

What do you base this on?

# ? Feb 5, 2013 21:06

Red_Mage: Jul 23, 2007; I should probably keep to posting about grognards in TGD, because when I discuss actual real-world politics with people who know what they're talking about, it becomes clear that I have trouble seeing things without a ruleset and character sheets.

Radbot posted:

What's the point of neutralizing him? He didn't have any resources or connections. There are probably hundreds of millions of people in the world that truly hate America but that don't have the capability or desire to become terrorists, should we kill them preemptively too? Honestly there have been LF posters that have displayed stronger anti-American tendencies than al-Awlaki has ever been proven of showing. Of course, I'm of the opinion that killing individuals as a way of stopping terrorism is P fuckin' dumb.

I assume you are talking about Abdulrahman al-Awlaki, as Anwar actually had resources and connections and leveraged them both in the US and in Yemen. If that's the case then it is tragic and there should be investigations into the "bystanders" of drone strikes (and indeed every military operation), with a special eye toward making sure they are not being targeted deliberately, and to ensure that proper sanctions are levied on the people responsible. Unfortunately that is going to take a HUGE sea change in the culture at the pentagon, which has been actively fighting accountability since Vietnam, and doesn't intend to stop.

# ? Feb 5, 2013 21:09

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# ? May 22, 2013 10:51

hobbesmaster: Jan 28, 2008; We are Legion, a terminal of the Geth.

Tibeerius posted:

I used that hypothetical because it was the only way to make my analogy even remotely fit the circumstances of Anwar al-Awlaki's killing. He was beyond the reach of normal due process. Or do you believe there was a better way to have neutralized him that was overlooked?

Its funny how you say he was beyond the reach of normal due process when even Bin Laden had been indicted.

So, what do you want to bet that this all ends with Scalia writes an opinion that amounts to "choosing who is subject to suspension of the 4th amendment is a political question"

# ? Feb 5, 2013 21:10

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