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Old 06 February 2013, 03:05 AM
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Default Justice Department memo reveals legal case for drone strikes on Americans

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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.
http://openchannel.nbcnews.com/_news...americans?lite

A truly horrifying document that wouldn't be out of place coming from a third-world dictatorship.

The definition of who is a 'terrorist' is so broad as to have little meaning, the targets don't have to be currently engaged in any activities against the US (or even planning them, making the 'imminent threat' argument null and void), and making a complete mockery of the concept of due process.

And of course the writers go out of their way to point out that what's presented isn't meant to be a totally of the reasoning behind why the the government can put a citizen on a secret assassination list, this just provides one avenue of justifying it:

Quote:
"This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful." Instead, as the last line of the memo states: "it concludes only that the stated conditions would be sufficient to make lawful a lethal operation" - not that such conditions are necessary to find these assassinations legal. The memo explicitly leaves open the possibility that presidential assassinations of US citizens may be permissible even when the target is not a senior al-Qaida leader posing an imminent threat and/or when capture is feasible.
http://www.guardian.co.uk/commentisf...-list-doj-memo

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  #2  
Old 06 February 2013, 04:34 AM
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Rachael Maddow covered this on her show, it's flat out alarming, actually.
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Old 23 February 2013, 03:51 AM
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Default Obama officials refuse to say if assassination power extends to US soil

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The Justice Department "white paper" purporting to authorize Obama's power to extrajudicially execute US citizens was leaked three weeks ago. Since then, the administration - including the president himself and his nominee to lead the CIA, John Brennan - has been repeatedly asked whether this authority extends to US soil, i.e., whether the president has the right to execute US citizens on US soil without charges. In each instance, they have refused to answer.
http://www.guardian.co.uk/commentisf...ons-filibuster

I know that Democrats and progressives in general have been more accepting of these kinds of things under Obama than they were under Bush, but surely there's got to be a limit, and this is approaching it? Please?

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Old 23 February 2013, 06:32 PM
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This is the collision of party politics and principle. This isn't OK regardless of party.

I wonder if this is like bartering. Maybe the implication that the administration has the authority to kill citizens without trial is like when barterers put the price too high so the other person will meet them in the middle: If they claim the authority to kill citizens without trial, then the idea of the authority to detain people indefinitely without trial seems less unreasonable by comparison.
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Old 23 February 2013, 08:57 PM
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Well, now that they can justify doing it outside of US boundaries, it's just the justification they need to base their opinion on using drones to do it inside US boundaries. Expanding executive power has always been a deliberately constructed slippery slope (as opposed to the rhetorical argument, that is).
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Old 24 February 2013, 04:05 AM
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Honestly, this hasn't gotten nearly enough attention or discussion, IMO.
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Old 24 February 2013, 04:23 PM
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As near as I can tell, the article's not saying Obama's claiming the power; it's saying he's not abjuring it clearly enough.

I agree that he should do so; and agree that if he's not using the specific language they're after because he wants waffle room in case he does want to claim it, that this would clearly be over the line.
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Old 25 February 2013, 12:33 AM
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I suspect he wants waffle room. Not likely for himself, but more likely for the office of the President and the Executive Branch. I don't see a problem with that.

Yep. You read me right. I don't see a problem with the President taking a wait and see approach when it comes to defining the limits of his office's power just like I don't see a problem with SCOTUS holding off on making a decision on whether or not a given issue is Constitutional until after someone with standing to sue (or whatever the correct legal terminology is) brings a case before them rather than just picking out "bad laws" and ruling on them on their own initiative.
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Old 25 February 2013, 06:16 PM
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Quote:
Originally Posted by ASL View Post
just like I don't see a problem with SCOTUS holding off on making a decision on whether or not a given issue is Constitutional until after someone with standing to sue brings a case
Serious question: With the Supreme Court example, it's clear what they're waiting for. What's the president waiting for?

Also, what the president is doing is different. The Supreme Court doesn't effect any change when it waits to hear a case before deciding. The executive branch has already made some decisions regarding drone strikes, but has refused for the past year to make public what decisions it's been operating under.

The issue is that the Obama administration has refused to release requested documents, and artfully dodged the question.

Quote:
Not only does the Obama administration refuse to make these legal memoranda public - senators have been repeatedly demanding for more than full year to see them - but they only two weeks ago permitted members to look at two of those memos, but "were available to be viewed only for a limited time and only by senators themselves, not their lawyers and experts." Said Udall in response to my questions yesterday: "Congress needs to fulfill its oversight function. This can't happen when members only have a short time to review complicated legal documents...
....Critically, the documents that are being concealed by the Obama administration are not operational plans or sensitive secrets. They are legal documents that, like the leaked white paper, simply purport to set forth the president's legal powers of execution and assassination.
The "assassination power" referenced in the OP refers to the government's use of unmanned aerial vehicles to drop bombs on suspected terrorists in Pakistan, Yemen, Afghanistan, and other places, possibly including the U.S.

The administration has obfuscated the question of whether drone strikes can be done in the U.S.

But recall one of the basic concerns about drone strikes: It makes killing abstract. A guy in Nevada wiggles a joystick while somebody in Afghanistan is torn apart in a fiery blast. He didn't even have to get up out of his chair. If it's possible that the same scenario (only with Afghanistan replaced with Texas) is OK, is it possible that sending an actual physical assassination squad to the guy in Texas also is OK?

I think if the question "can the government send assassination teams to kill citizens on American soil" were posed, the answer would be clearly no. But since the question was "Could the Administration carry out drone strikes inside the United States?" it seems more abstract though the effect is the same. When asked that question, Brennan didn't answer it; he instead chose to answer the question "has the US ever carried out drone strikes inside the United States?"

There is a well-established legal precedent for the government killing American citizens without charge. When the police shoot an active gunman, it's tragic but understandable and usually necessary. Some of the important differences here are:
1. The drone killings that have happened (so far none in the US) are secret.
2. They rarely occur in response to a threat as clear and present as an active gunman.
3. They frequently kill innocent bystanders: Altogether at least 494 civilians have been killed in Pakistan, Yemen, and Somalia since 2002. It could be as many as 1,119 killed. Many more civilians injured.

And back to the main point, from the OP:

Quote:
No matter your views on drones and War on Terror assassinations, what possible justification is there for concealing the legal rationale that authorizes these policies and defines the limits on the president's powers, if any?

Last edited by Mr. Billion; 25 February 2013 at 06:27 PM.
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Old 25 February 2013, 07:18 PM
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Originally Posted by Mr. Billion View Post
Serious question: With the Supreme Court example, it's clear what they're waiting for. What's the president waiting for?
If I were to hazard a guess, I'd say he's either waiting for congress to force his hand and, until that happens, every single conceivable circumstance in which a drone strike or other assassination-style action would be even a conceivable option to be exhausted. So, basically for eternity to pass or for some compelling action from congress or perhaps the courts in the meantime.

Can the POTUS confiscate the property of US citizens by mere executive order? Imagine what Jefferson might have said if you had asked him in 1803. Now imagine what Lincoln might have or better yet actually said about the subject round about 1862 when speaking specifically on the subject of citizens within states engaged in open rebellion. The point being while some rather absurd-sounding or far-fetched scenario may be necessary before the President ordering a drone strike against a US citizen on US soil might even be a reasonable option by half, who knows what situation s future Presidents may be faced with.

To sum it up, I would imagine the President would tend to think of it as a "we'll cross that bridge when we get to it" scenario that he may or may not have some amount of ground work laid out which I guess is what Congress would like to know/see.

Unfortunately I'm limited to an iPhone for the next few days so I'll have to apologize for not addressing the rest of your post (probably a litany of spelling and punctuation errors too) and leave it at that.
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Old 25 February 2013, 09:57 PM
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I like how you managed to compare freeing slaves to assassinating US citizens inside the US by executive order as if they were morally equivalent.
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Old 25 February 2013, 10:06 PM
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Actually, he's comparing the confiscation of private property from U.S. citizens in the U.S. to the execution of U.S. citizens in the U.S., in both cases by executive order and without due process. They are morally equivalent in kind, if not in degree.
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Old 25 February 2013, 10:12 PM
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Quote:
Originally Posted by crocoduck_hunter View Post
I like how you managed to compare freeing slaves to assassinating US citizens inside the US by executive order as if they were morally equivalent.
Since when is "morality" part of law? The question is of legality, not of morality. The Gov't is controlled (hopefully) by laws.
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Old 25 February 2013, 10:16 PM
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And laws are all about imposing morality.
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Old 25 February 2013, 10:18 PM
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And at the time the moral code (at least in the South) was that slaves were property of the slaveholder. So taking slaves away from slaveholders was morally wrong in the South.
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Old 26 February 2013, 03:07 AM
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Quote:
Originally Posted by crocoduck_hunter View Post
And laws are all about imposing morality.
God, I hope not. I'd hope that creating a society that functions well would be at least as much a component of the laws as morality is. Pure morality would be an awfully nebulous and open-ended thing to be the sole foundation for an entire code of laws.
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Old 26 February 2013, 03:40 AM
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You don't think that having laws against things like murder and theft is at its heart imposing a basic moral code on society?
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  #18  
Old 26 February 2013, 04:59 AM
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Quote:
Originally Posted by Mr. Billion View Post
There is a well-established legal precedent for the government killing American citizens without charge. When the police shoot an active gunman, it's tragic but understandable and usually necessary. Some of the important differences here are:
1. The drone killings that have happened (so far none in the US) are secret.
2. They rarely occur in response to a threat as clear and present as an active gunman.
Yeah, as I previously posted, the paper that was released justifying the strikes explicitly says that targets don't have to be any kind of imminent threat. In fact, the targeting guidelines are incredibly broad:

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,” 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.”
http://openchannel.nbcnews.com/_news...americans?lite

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Old 26 February 2013, 02:04 PM
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Actually, Il-Mari, that seems to specifically say that the target does have to pose an imminent threat.

The problem is that it then goes on to provide a definition, or something resembling a definition, of "imminent" that doesn't match what's generally meant by the word; and that also appears to rely on a single person's decision.

In a genuine sudden emergency, sometimes it's necessary to rely on a single person's conclusions as to what's going on -- for instance, the decision of a police officer as to whether a person is actually armed or is actually about to start shooting. You hold a hearing after the fact, but the officer is entitled to a certain amount of benefit of the doubt, though that should have its limits. If you re-define "imminent" nearly out of existence, however, that's not really the situation you're talking about. Plus which, who in this case would be holding the hearing? Congress is trying to, I suppose; but the case is as likely to be decided by political bias in Congress as by the facts of the matter.

One difference between the situation within the USA and the situation in, say, Afghanistan, is that if the person is within the USA and there's significant evidence that the person has been carrying on or planning attacks, it ought to be possible to arrest that person and hold a trial. (People occasionally get killed resisting arrest; but that in most cases brings us back into an "actual ongoing firefight" sort of situation.) There are places in the world in which that isn't going to be possible, and situations in which asking the country the person's actually in to carry out the arrest instead isn't going to work either.

I suppose Obama might be waffling because he's imagining some situation within the USA in which arrest also poses massive problems -- an armed enclave with member(s) of it threatening to set off nuclear or biological weapons, for instance, combined with significant evidence that they might actually have such weaponry. But I think he still should come out with a clear statement that execution of citizens without trial is clearly unconstitutional. If that situation actually did come up, a President might want to authorize the use of drones anyway, and let the courts (and the courts of public opinion) hash it out afterwards. That's certainly not ideal; but claiming the right to authorize such assassinations based on secret judgements carries so many potential problems that I think it's much further from ideal.
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  #20  
Old 26 February 2013, 07:28 PM
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Quote:
Originally Posted by crocoduck_hunter View Post
You don't think that having laws against things like murder and theft is at its heart imposing a basic moral code on society?
Yes it is. The problem is that "morality" includes a lot of crap that really isn't about "morals". Things like keeping the sabbath holey, or not drawing a picture of God. Just because something is "immoral" doesn't mean it should be codified into law.
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