Anwar al-Awlaki & Samir Khan

[piercehawkeye45]

Originally Posted by Lamplighter

Would you like to expand your thoughts in regards to this posting ?

As I read the link, I get more and more the impression the whole issue
is far too cloudy and uncertain to justify Holder's position and Obama signing the law.

But then, I'm still interested in your thoughts...

My thoughts are pretty much the same as stated previously.

While the 'War on Terror' can act as an umbrella for many power moves from the president to TSA, there are some aspects of it that I believe are good for national security. By stating we at war with Al Qaeda and similar extreme organizations it gives the administration more power and ability to make quick and direct decisions.

As long as there is discipline among the executive branch I am not opposed to the president ordering a drone strike against someone like al-Awlaki. But this means that this only applies to very extreme situations where there is strong evidence that the person is directly promoting violence against US citizens, does not represent US interests in any possible way (defecting citizenship or working in interests of other state or non-state players), and evading capture in a location where there is no realistic way of getting this person. In those extremely rare cases I do not believe due process should apply.

The US Constitution should not protect US citizens at the expense of others if they do everything in their power to harm the country.

[Lamplighter]

Originally Posted by piercehawkeye45

My thoughts are pretty much the same as stated previously.

<snip>By stating we at war with Al Qaeda and similar extreme organizations
it gives the administration more power and ability to make quick and direct decisions.

As long as there is discipline among the executive branch I am not opposed
to the president ordering a drone strike against someone like al-Awlaki. <snip>

The US Constitution should not protect US citizens at the expense of others
if they do everything in their power to harm the country.

Yes, I understand your views from our previous postings,
and I guess I was asking about your views of the arguments presented in this particular link.

Our differences are quite basic, and can be seen in the sentences above.

First, I believe it was a fundamental mistake to declare "war"
on a nebulous group (Al Qaeda) because it leads to exactly
what you stated: "similar extreme organizations".
The consequences are a never-ending "war"
... who is going to sign a document of surrender to bring this "war" to a close ?

Second, more and more it is being interpreted to have given unprecedented powers to the President.
... who or what is going to assure "discipline among the executive branch" ?

Third, I believe we base our entire form of government on that aspect of the Constitution
just the opposite of the idea that it "should not protect US citizens..."
The Constitution is the primary protection of the minority,
and the individual, from the emotional wiles of the majority.
... if not the Constitution then who/what will provide that protection ?

OK, so much for my back and forth.
... I am interested in how you view the content of the article in your link... if you care to expand on it.

[classicman]

The U.S. government made clear that if Awlaki "were to surrender or otherwise present himself
to the proper authorities in a peaceful and appropriate manner, the United States
would immediately send a drone to visit him.

[classicman]

As long as there is discipline among the executive branch...

And what about future administrations who may not be quite as disciplined?

[piercehawkeye45]

I apologize for the late response. I have been busy.

Originally Posted by Lampligher

First, I believe it was a fundamental mistake to declare "war"
on a nebulous group (Al Qaeda) because it leads to exactly
what you stated: "similar extreme organizations".
The consequences are a never-ending "war"
... who is going to sign a document of surrender to bring this "war" to a close ?

Yes, that argument shows just how complicated and subjective the issue is. On one hand, it would be more transparent and objective if the scope of the 'war on terror' was the destruction and dismantling of certain terrorist groups (Al Qaeda). On the other hand, terror and resistance groups are very fluid and counter-terrorism also needs to be fluid to appropriately respond to threats. For example, if we declare war on GroupA and five years later, GroupB is a big threat while GroupA fell out of importance, would we need to get a new declaration of war on GroupB? I would personally prefer the fluid option.

Then there is another question of the government powers associated with the declaration of war but I really don't feel like getting into this right now because it is a tangent.

Originally Posted by Lamplighter

Second, more and more it is being interpreted to have given unprecedented powers to the President.
... who or what is going to assure "discipline among the executive branch" ?

Even though the executive branch has been given unprecedented powers, the president is still on a leash. The article talked about this and admitted that it is a potential problem. The way I interpreted the current way of doing things is that president can make decisions without congressional and judicial approval but congress and the supreme courts can take away that power at any time.

To me, if we assume congress and the supreme court are incompetent, the most effective check right now is the media. If the president goes down a slippery slope it should be reported, putting pressure on congress to repeal the presidential powers.

Third, I believe we base our entire form of government on that aspect of the Constitution
just the opposite of the idea that it "should not protect US citizens..."
The Constitution is the primary protection of the minority,
and the individual, from the emotional wiles of the majority.
... if not the Constitution then who/what will provide that protection ?

I agree with this but I don't think it be so absolute. Yes, the Constitution protects minorities as it should. If a citizen has an unpopular opinion (neo-Nazi or communist), the Constitution does a great job at protecting that citizen. That protection allows non-mainstream views to spread and be discussed, which I feel is important for any free society.

Yet, I believe there are limits of how far that protection goes. I do not believe the Constitution should protect citizens in every situation. If there is a very extreme case where a citizen, al-Awlaki for example, is directly promoting violence against US citizens, does not represent US interests in any possible way (defecting citizenship or working in interests of other state or non-state players), and evading capture in a location where there is no realistic way of getting this person, I don't see the reason why the Constitution should protect them in the same why I don't believe the Constitution should protect an American citizen that joined Nazi Germany in WWII.

Originally Posted by Lamplighter

OK, so much for my back and forth.
... I am interested in how you view the content of the article in your link... if you care to expand on it.

Honestly, not really. I feel this is an issue that has no right answer. On one side, it is important that all executive powers are checked in one way or another. This prevents the president from going down a slippery slope and attacking citizens that should be protected by the Constitution. On the other side, to be effective, counter-terrorism needs to be fluid and efficient, and getting congressional and judicial approval greatly slows down this process and can allow people actively plotting against the US to survive and escape possible death.

I personally believe that counter-terrorism should be fluid and efficient, at the sacrifice of congressional and judicial review for every decision, but I also believe that the president needs to be kept on a leash. There should be a thorough investigation after every attack, even more so on American citizens, that forces the executive branch to justify every decision. That way they can make quick decisions in the name of national security but it also forces them to make sure they can justify their decision. If they can't justify it, their powers should be taken away.

Is this realistic? I have no idea.

[Lamplighter]

Although I support Obama in so many ways, I've said before I believe
Obama's decision to kill of Anwar al-Awlaki and others was the worst mistake of his Presidency
... maybe even an impeachable offense.

Well, here's one judge challenging the idea that the Executive branch has such authority...

http://www.nytimes.com/2013/07/20/us...ings.html?_r=0
NY Times
SCOTT SHANE
July 19, 2013

Judge Challenges White House Claims on Authority in Drone Killings

WASHINGTON — A federal judge on Friday sharply and repeatedly challenged
the Obama administration’s claim that courts have no power over
targeted drone killings of American citizens overseas.

Judge Rosemary M. Collyer of the United States District Court here was hearing
the government’s request to dismiss a lawsuit filed by relatives
of three Americans killed in two drone strikes in Yemen in 2011:
Anwar al-Awlaki, the radical cleric who had joined Al Qaeda in the Arabian Peninsula;
Mr. Awlaki’s 16-year-old son, Abdulrahman, who had no involvement in terrorism;
and Samir Khan, a 30-year-old North Carolina man who had become a propagandist for the same Qaeda branch.

And if you don't think an Attorney General can give a really stupid reply to a judge, this guy gave two in one breath...

“Are you saying that a U.S. citizen targeted by the United States
in a foreign country has no constitutional rights?” she asked Brian Hauck, a deputy assistant attorney general.
“How broadly are you asserting the right of the United States to target an American citizen? Where is the limit to this?”

Judge Collyer did not buy it. “No, no, no,” she said.
“The executive is not an effective check on the executive.”
She bridled at the notion that judges were incapable of properly
assessing complex national security issues, declaring,

“You’d be surprised at the amount of understanding other parts of the government think judges have.”

She provided her own answer: “The limit is the courthouse door.”
<snip>

[Griff]

Wow. Let's hope that nutter never rises above deputy assistant. I see how he got there though, being a yes man with complete disregard for civil rights.

[richlevy]

Originally Posted by Griff

Wow. Let's hope that nutter never rises above deputy assistant. I see how he got there though, being a yes man with complete disregard for civil rights.

He also completely ignored the fact that we do have a FISA court that does hear such matters.

I'd like to think that if the FISA court is required for various classified requests affecting US citizens, that someone would consult them on a killing.

And that doesn't speak to 'collateral damage'. In a war zone, there are procedures in place to compensate the family of victims, from "you're shit out of luck" to "here's $500". People in a war zone at least know that they are in a war zone. With drones we're claiming the right to go anywhere, anytime and kill a target and anyone who happens to be nearby with no respect for culpability.

If Uncle Vlad was in the Russian mob and happened to be attending his nieces wedding, and the FBI broke in and mowed down a few dozen wedding guests, there would be outrage. The question would be, "Did everyone know, including the children, that their lives were forfeit by being in the same room as him?"

[Lamplighter]

Originally Posted by richlevy

He also completely ignored the fact that we do have a FISA court that does hear such matters.
<snip>

I guess I overlooked a third really stupid thing about Mr Hauck.
He is saying all this to the judge, who also serves on the FISA court !

ibid

At one point, when Mr. Hauck referred to the Constitution, Judge Collyer, 67,
who was appointed by President George W. Bush and also serves on the Foreign Intelligence Surveillance Court,
interrupted to note that the Constitution prescribed three branches of government,
and that she represented one of them.

[Undertoad]

He was not a US citizen.

[Lamplighter]

Originally Posted by Undertoad

He was not a US citizen.

Plowed ground...

[xoxoxoBruce]

No, mildly tilled ground, you left out a couple of things.

1.Obtaining naturalization in a foreign state;
2.Taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions;
3.Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state;
4.Accepting employment with a foreign government if (a) one has the nationality of that foreign state or (b) a declaration of allegiance is required in accepting the position;
5.Formally renouncing U.S. citizenship before a U.S. consular officer outside the United States;
6.Formally renouncing U.S. citizenship within the U.S. (but only "in time of war");
7.Conviction for an act of treason.

[Lamplighter]

Originally Posted by xoxoxoBruce

No, mildly tilled ground, you left out a couple of things.
<snip>

Despite all the Dwellars conjectures about renouncing citizenship in this thread,
in this particular case, the Defendants DO consider all three decedents as US citizens.
If they did not, they would have certainly called them something else...

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NASSER AL-AULAQI, as personal
representative of the estate of ANWAR
AL-AULAQI, et al., Plaintiffs,
v.
LEON E. PANETTA, et al., in their
individual capacities, Defendants.

No. 1:12-cv-01192 (RMC) Case 1:12-cv-01192-RMC Document 18
Filed 12/14/12 Page 1 of 58
DEFENDANTS’ MOTION TO DISMISS

On Page 31 of this Motion: the Defendants state:

A. Plaintiffs fail to allege the violation of a clearly established right.
The three decedents in this case are U.S. citizens allegedly killed abroad during armed conflict.
Given the unique and extraordinary context of these allegations, the extent to which particular
Fourth and Fifth Amendment rights apply to decedents simply is not clearly established.
<snip>

[xoxoxoBruce]

No, no snipping.

Context is “a potentially recurring scenario that has similar legal and factual components.” Arar, 585 F.3d at 572. See also Mirmehdi, 689 F.3d at 981. The context here is unique for a number of reasons: it is an alleged (1) military and intelligence action; (2) abroad; (3) during the course of ongoing armed conflict; (4) targeting a U.S. citizen declared a leader of an armed terrorist group (and Al-Banna, a non-citizen enemy).

Thus, an analysis of the extraterritorial question presented requires this Court to determine whether, and to what extent, to judicially enforce the particular Fourth and Fifth Amendment protections that may apply to a U.S. citizen allegedly targeted and killed—or inadvertently killed—by a purported missile strike abroad on members of an organization against which the political branches have authorized the use of all necessary and appropriate force.

There are no cases holding such conduct illegal, let alone illegal “beyond debate.” Al-Kidd, 131 S. Ct. at 2083. To the extent the Supreme Court has discussed the constitutional rights of U.S. citizens abroad, it has generally done so in the context of custody, detention, or trials—not in the active battlefield. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality) (detention); Reid v. Covert, 354 U.S. 1 (1957) (plurality) (trials).

They allowed the plaintiffs claim of citizenship to stand because the defense of this alleged action is there is no precedent as described on pages 29, 30, and 31, and they certainly don't want to set one now because it will happen again.

It was when the justice department justified the hits to the executive, that the ground was tilled.

[Undertoad]

You are right.

I personally don't think he should be considered a citizen. And he remained a citizen only because it was the best way to combat the US.

It may be that he didn't have his citizenry revoked, through legislation or whatever means it would take to pursue, for some esoteric foreign affairs reason we don't understand.

It may even be a case where the intelligence on the guy said he had to be killed quickly, and let's sort out the legal wiggle room later if there's a big fuss.