Re: Applicability of Federal Criminal Laws and the Constitution

July 25, 2014 1:19 PM

In May, David Barron was confirmed as a judge in the United States Court of Appeals for the First Circuit, after a half-hour filibsuter by Rand Paul, and opposition stemming from a confidential memo (previously) he wrote, justifying the use of targeted drone strikes against terrorists, e.g. Anwar al-Awlaki (previously).
After a court ruling in the FOIA lawsuit filed by the ACLU and New York Times, Court Releases Large Parts of Memo Approving Killing of American in Yemen.

Justice Department Memo Approving Targeted Killing of Anwar Al-Awlaki, partially redacted. The ACLU has a PDF, here. Cryptome has a white paper dated a year later, also in PDF, here.
Emptywheel: Whither the Assassination Consideration?

As I noted earlier, I’m doing a fairly detailed comparison of what parts of the white paper don’t show up in the drone memo released Monday. But that’s going to take a while.

Far easier is to compare what Charlie Savage’s sources said the memo included but doesn’t. I’ve noted before that they told him there was one memo when there were really two. Given these discrepancies, it’s possible they merged the two memos in their descriptions:

more at Emptywheel

Lawfare: The Al-Aulaqi OLC Memo: A Quick and Dirty Summary
more at Lawfare

Peter Van Buren writes at TomDispatch:
Dead Is Dead: Drone-Killing the Fifth Amendment

Death by Pen

For the killing of an American citizen to be legal, the document claims, you need one essential thing: "an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States." In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, "citizenship does not immunize the target"). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is "unwilling or unable to suppress the threat posed by the individual targeted." Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

Informed Comment: Obama’s Drone Memo Revealed: US Gov’t can over-rule 4th Amendment

The Guardian: US cited controversial law in decision to kill American citizen by drone
Obama's 'drone memo' is finally public. Now show us the library of secret law - "To this administration, transparency comes in the form of deleted pages. But too much of America's legal excuse for killing an American citizen remains classified"

posted by the man of twists and turns (27 comments total)

Does this somehow make a member of the Paul political family right beyond just having a filibuster?

Because Paul's position of using drones for remote killing of liquor store robbery is rather well documented.
posted by rough ashlar at 1:54 PM on July 25, 2014 [1 favorite]

A whole 30 minutes, eh?
posted by dilaudid at 1:56 PM on July 25, 2014

A whole 30 minutes, eh?

Hey man, that's half of an entire hour! That's a pretty dang valiant effort.
posted by kafziel at 2:17 PM on July 25, 2014

Them's the breaks. One day you're invited to speak at a Pentagon luncheon, next day you're on a secret kill list.
posted by RobotVoodooPower at 2:40 PM on July 25, 2014 [1 favorite]

It's a little-known fact that he had to pee the entire time!
posted by JHarris at 2:40 PM on July 25, 2014 [1 favorite]

That's a pretty dang valiant effort.

Considering most of the time the filibuster is issuing a statement that they intend to filibuster, the effort is better than most of the nation's "leaders".

*paul harvey voice*
Americans - the Paul clan member was polling at the top of Republican hopefuls only to be outdone when a very well known carrier bureaucrat who said "I am altering the deal. Pray I don't alter it any further" was added to the polling. That bureaucrat, Anakin Skywalker, better known as Darth Vader. This is Rough Ashler. GoodDay?
*/paul harvey voice*
posted by rough ashlar at 2:44 PM on July 25, 2014 [1 favorite]

So do you all not agree with Sen. Paul on this issue or is it simply too much for you to acknowledge that he (or any other republican) might actually be right?

I can't stand our president. Doesn't mean I think he's 100% wrong on everything.
posted by IndigoJones at 3:02 PM on July 25, 2014 [6 favorites]

As if there are no laws in other countries that might be as important to them as our laws are to us. As if no international human rights standards apply. You can be in complete compliance with American laws while still doing something illegal. If your analysis ends at one country's constitution when it comes to murdering civilians in another country, you're either a liar or a simpleton.
posted by 1adam12 at 3:22 PM on July 25, 2014 [4 favorites]

Surely this...
posted by Thorzdad at 3:30 PM on July 25, 2014

On which side of this issue IndigoJones? The side where he suggests it's appropriate to use drones against american citizens in domestic police matters (such as liquor store robberies) or the side where he suggests it's inappropriate to use drones against american citizens on foreign soil? I'm not a huge fan of American foreign policy as envisioned by the Obama administration. Senator Paul however appears to be just not a huge fan of anything Mr. Obama is for, regardless of what it is. If he could pick a position and stick with it, maybe I would know whether I agree with him or not.
posted by evilDoug at 3:34 PM on July 25, 2014 [4 favorites]

So do you all not agree with Sen. Paul on this issue or is it simply too much for you to acknowledge that he (or any other republican) might actually be right?

Frankly, I'm far more concerned about our apparently never-ending war against Al-Qaeda than I am about Americans being killed for associating with them.

I mean, there were people who went to Germany and fought against the allies in WWII, and many of them were also killed in the process and there wasn't, nor should there be, so much hand-wringing about the constitutionality of that. I get that AQ is not Germany, and all of the problems those differences present - my point being that if you have taken up arms with enemies of the State, then, you know, maybe you might be killed along with them.

Or, to put it another way, the problem as I see it - it isn't that Americans helping AQ are being killed so much as we are relying too much perhaps on Drones to do Foreign Policy.

That this is just a continuation of policy from Bush, and Clinton, and Bush, and Reagan and so on means that Republican claims to have suddenly found religion on this issue ring particularly hollow.
posted by Pogo_Fuzzybutt at 3:51 PM on July 25, 2014

I guess I'm insufficiently nationalist, and I know I'm out of line with several centuries of jurisprudence, but I don't really buy that the legality / legitimacy of assassination should rest on the citizenship of the target in any meaningful fashion.
posted by PMdixon at 3:52 PM on July 25, 2014 [3 favorites]

By the way, the Lawfare articles on the subject are very very helpful to understanding the complicated nature of what happened both in real life, in the memos, and in the fight to get the memos visible. Kenneth Anderson's stuff in particular is quite good, such as this one.

Although on re-reading...it might help to have some understanding of international law / the law of armed conflict, he kind of jumps right in.
posted by Lemurrhea at 4:04 PM on July 25, 2014 [1 favorite]

Frankly, I'm far more concerned about our apparently never-ending war against Al-Qaeda than I am about Americans being killed for associating with them.

I mean, there were people who went to Germany and fought against the allies in WWII, and many of them were also killed in the process and there wasn't, nor should there be, so much hand-wringing about the constitutionality of that. I get that AQ is not Germany, and all of the problems those differences present - my point being that if you have taken up arms with enemies of the State, then, you know, maybe you might be killed along with them.

Or, to put it another way, the problem as I see it - it isn't that Americans helping AQ are being killed so much as we are relying too much perhaps on Drones to do Foreign Policy.

I would argue it really, really matters about the associational issues, and not just about drones. For example, this drone memo makes a strong implication that Omar Khadr commit a (war?) crime for his actions, which makes him illegally charged and prosecuted and convicted. Nothing to do with drones at all.
posted by Lemurrhea at 4:11 PM on July 25, 2014 [3 favorites]

I think I am more relaxed about Americans ageing to kill other Americans than killing anyone else. It seems much more democratic.
posted by biffa at 4:20 PM on July 25, 2014

That link about Omar Khadr is interesting, especially as it relates to this new term of art the government is using to prosecute cases, the "U.S. common law of war". (also at Lawfare)
posted by RobotVoodooPower at 4:28 PM on July 25, 2014

Derp. In my last post, it should read "Omar Khadr did not commit...."

Obviously. I am a moran.
posted by Lemurrhea at 4:59 PM on July 25, 2014

I misread David Barron as David Barton at first and was terrified for a moment.
posted by brundlefly at 6:14 PM on July 25, 2014

You can be in complete compliance with American laws while still doing something illegal

Not if I'm an American on American soil.
posted by jpe at 7:32 PM on July 25, 2014 [1 favorite]

Because Paul's position of using drones for remote killing of liquor store robbery is rather well documented.

Which has absolutely fuck all to do with whether his position on David Barron's confirmation was correct or not.

my point being that if you have taken up arms with enemies of the State, then, you know, maybe you might be killed along with them.

I wasn't aware of any evidence that al-Awlaki had taken up arms against the U.S. government. From what I understand he was mainly a propagandist. Now the Obama administration has claimed in the past that he had gone "operational," but of course we will never know because there wasn't a trial.
posted by AElfwine Evenstar at 9:20 PM on July 25, 2014 [1 favorite]

I wasn't aware of any evidence that al-Awlaki had taken up arms against the U.S. government. From what I understand he was mainly a propagandist. Now the Obama administration has claimed in the past that he had gone "operational," but of course we will never know because there wasn't a trial.

If planning and ordering attacks is not taking up arms, then why bring the Obama administration into it at all? Responsibility stops at the drone pilot.
posted by kafziel at 10:31 PM on July 25, 2014

If planning and ordering attacks is not taking up arms, then why bring the Obama administration into it at all?

Do you have any evidence that al-Awlaki was planning and ordering attacks?
posted by AElfwine Evenstar at 11:01 PM on July 25, 2014 [2 favorites]

Do you have any evidence that al-Awlaki was planning and ordering attacks?

From the memo: "Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen."
posted by SollosQ at 1:52 AM on July 26, 2014

Which has absolutely fuck all to do with whether his position on David Barron's confirmation was correct or not.

Well the larger issue is: should we have voted for Rand Paul for president?
posted by happyroach at 4:34 AM on July 26, 2014

That's evidence that someone claimed there is evidence, not evidence.
posted by Drinky Die at 8:27 AM on July 26, 2014 [2 favorites]

Rand Paul hasn't run for president
posted by empath at 1:30 PM on July 26, 2014

From the memo: "Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen."

SollosQ, that sentence means "We were told some stuff. The conclusion we should draw from those claims is that al-Aulaqi has "operational and leadership roles" in AQAP. As a consequence of those roles, he would have been involved in an abortive attack within the United States. Also, we were told that he plots attacks intended to kill Americans."

That's the basis for the logic in the memo: given those assumptions, would it be lawful to kill him? And we aren't told what those assumptions really are, or how solid the basis for them might be. That's not relevant to the memo. The decision to assassinate isn't given judicial scrutiny; if it follows the memo it's based on an official's decision that someone is a threat. You might say, well, that's how every war is conducted, and that's true, but this is something far different from any war that was heretofore contemplated: it is a perpetual, worldwide war, in which there is no battlefield and in which the victims may be individually targetted. The logic in the memo basically allows for any action anywhere, at any time, that might be lawful on a battlefield in the heat of war - and those laws have, in the past, allowed for the summary execution of American citizens arrested on American soil, as well as the indefinite detention without trial of people thought to be racially treacherous.
posted by Joe in Australia at 4:41 PM on July 26, 2014 [2 favorites]