My Take On The White House Memo


The fact of the matter is, there are people bearing arms against the nation,  and its people. And among those wishing us ill are several who hold American citizenship. This is hardly new. It has happened before, and it will happen in the future. Members of the German and Italian (and probably, the Japanese) Armies fought against the US. The big example is the Confederate States, whose legitimacy the United States never acknowledged.

The current topic is, of course, radical Islamists who have joined, supported or otherwise aligned themselves with Al Qaeda or the Taliban or a handful of other terrorist organizations.  We are at war with Al Qaeda. If Al Qaeda was a nation state, and its forces wore uniforms and otherwise fought in accordance to the rule of law, not an eye would be blinked at the efforts to kill their leadership, even those who held American citizenship.

The problem arises in that Al Qaeda isn’t, of course, a nation state. And membership is a little more amorphous than we might like. They don’t issue Geneva Convention cards to their fighters (which, for you civilians out there, our military ID cards are in fact also Geneva Convention cards).

URR will disagree with me, and argue that these persons are being denied Constitutional protections. Let me steal a comment from Rob Crawford at Tom Maguire’s excellent Just One Minute blog:

The president has the authority to prosecute wars, and like it or lump it, Congress did the modern equivalent of declaring war against al’Qaeda.

The requirements, as I understand them, are:

1) Threat must be imminent,
2) Capture must not be feasible,
3) The strike is otherwise in accordance with the laws of war.

A US citizen who leaves the country and starts working with al’Qaeada is no different than a US citizen who left the US and took up arms with Hitler’s Germany. They existed, and no one was declared a war criminal when they died during allied air strikes, shelling, rifle fire, or bayonet charges.

And what’s the alternative? That any military operation where there MAY be a US citizen on the receiving end must pass judicial review? How would that work?

Let’s take the three bullet points. The first, that the threat must be imminent. I’m not sure that’s the best description. Rather, I’d say that the target’s participation should be ongoing, rather than some past act with no future role.

Second, Capture must not be feasible. I’m sure if we moved heaven and earth, some targets would be captured. But possible and feasible are two different things.

Third, the strike has to be what would otherwise be within the bounds of the law of war.  For instance, you can’t use a nuke to kill just one guy. That violates the law of war.

URR will argue that the memo is evidence of the denial of due process for persons accused of treason. But in fact, they aren’t accused of treason. The are currently actively engaged as unlawful combatants against the US. The courts have shown no interest in interfering with the actions of the armed forces against unlawful combatants until such time as those persons come into the custody of the US. Their silence can only be taken as consent. And such is right and proper, by the way, as under Article I of the Constitution, Congress is responsible for the regulation of the armed forces, and of course, the President has Article II powers enumerated. Nowhere does the Constitution state a role for the courts in the prosecution of war.

For any that might be captured or otherwise taken into custody, there’s no real evidence they would even be charged with treason. They might be charged with any number of other terrorism related charges.

As to treason in the Constitution, let’s look at a little history. Much of our criminal law comes lock, stock and barrel from English common law. But under that common law, treason was arguably just about anything that annoyed the Crown. It was to avoid that ambiguity that treason, and treason alone, was so specifically mentioned in the Constitution. Of course, so much criminal law was also held to be a matter for the states, and not the federal government, but that’s a rant of a different color.

URR argues:

And just where is this jurisdiction for the authorization of the use of force?  Why, it is anywhere at all where the Government perceives an enemy to be.   As the Memo informs us, there are no geographic limits.   Which implies no battlefield, or perhaps, that everywhere is a battlefield.

First, elsewhere the memo clearly states that the decisions under consideration are for operations outside the United States. The vagueness of the wording he showed:

Memo 3

is deliberate, no doubt. But as we’ve seen, the enemy doesn’t feel any particular need to constrain it’s efforts to any one nation or theater of war. This vagueness preserves freedom of action against the enemy, but is still constrained by the guidance that capture must not be feasible.

After years and years of conservatives decrying treating terrorism as a law enforcement problem (and still decrying the President’s attempts to do so) I find it odd that URR turns around and complains that the President, with the authority of the Authorization of the Use of Force of September 14, 2001, is doing what conservatives have long sought- to treat terrorism as a war.

I fully share URR’s distrust of this administration in particular, and an over powerful government in general. But the fact is, the US has the right, and indeed, a moral obligation to wage war against terrorist enemies. And in waging war, we are under no obligation to attempt to capture the enemy (we are, however required to accept a surrender).  Yes, there is real room for abuse of the process by which persons are designated as enemy combatants. But common sense goes a long way to answering the question of just who those persons are.  And that is the root question. If URR is comfortable with Alwaki and Kahn being killed by troops on the ground, he should be just as comfortable with them being killed by any other method. And should their contemporaries be captured, I too am all for them at the gibbet. After due process.

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24 Comments

Filed under Afghanistan, ARMY TRAINING

24 responses to “My Take On The White House Memo

  1. tricycle

    Way off, brother. By consenting with this “memo” (aka official policy) you leave the determination of “terrorist” in the hands of those who hold power. Drawn to its logical conclusion- that definition could and WILL include anyone contrary to the ruling persons. Before you consent to this policy, I would like you to personally confirm the following (in your heart, not to us): :that you can always guarantee that individuals ideologically alligned with yourself will ALWAYS (and forevermore) be in power. Confirm that you, yourself, are smarter than the founding fathers (“George Washington, Tom Jefferson, etc…didn’t understand anything, I know it all), and consent that you will always conform to government ideology, even if it is contrary to your conscience. Then consider that there is a possibility, a POSSIBILITY, that sharia law or (name your adverse condition here) might be instituted- maybe now, maybe 50 years in the future (for your grandkids to deal with). Will you, lying on your deathbed, tell your grandkids to “bend over” because the president (not even congress was involved in this decision- as reliable a group as they are) says so? After all, if they do anything other than talk (assuming the 1st amendment is still in-tact at that time), they will be considered “terrorists” and subject to summary execution (along with any “collateral” that happens to be nearby). Rather- honor due process, “send in the boys” (means more than you think), and if the bad guy engages deal with him, based on his current and overt actions, as an enemy combatant. If he surrenders, then we have rules for that- its called “due process”- at least require a jury of 12 to send your granddaughter to her death, not the simple policy/declaration of a single man (and his groupies in cabinet). Government is NOT good by nature, the founding fathers (who populated the organization they also chose to regulate) recognized this…adding “our” to the equation doesn’t change that fact. Kill the enemy, try citizens who commit crimes- don’t give one man power to kill anyone he wants to.

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    • Jeff Gauch

      RTFM. This entire memo is based off the fact that Congress has declared war, excuse me, authorized the use of military force, against Al Queda. It is simply pointing out that concomitant with the authorization is the ability to target and kill leadership, even if that leadership happens to carry a US passport. Obama doesn’t have the power to kill anyone he wants, he has the power to kill anyone in Al Queda he wants. It is an important difference.

      Now, sure, it is conceivable that Congress could issue an authorization of military force against a domestic group, but at that point America is dead anyway and there’s no reason to expect the courts to offer any additional protection.

      If your argument relies on strawman and slippery slope fallacies you should probably rethink your position.

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    • tricycle

      (RTFM?)

      answer the questions.

      Just because you disagree with an argument does not make it “based on fallacies.”

      I have to go with URR on this one.

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    • RTFM= Read the Memo.

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    • Jeff Gauch

      You want an answer to your questions? Fine. Mu.

      I’m not saying your argument is fallacious because I disagree with it, I’m saying its fallacious because it relies on logical fallacies. Nobody is arguing the President has the power to kill any American citizen he wants (that’s the strawman), and his being able to kill Al Queda members with US passports doesn’t mean he will be able to target anyone with a US passport (that’s the slippery slope).

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  2. MikeD

    I agree with all your reasoning up to a point Brad. There is no dispute in my mind that the intent and rational for these extrajudicial killings (and let’s be fair, there IS no court involved) is to kill members of al Qa’ida across the world, regardless of their nation of origin. I also agree that it is complicated because al Qa’ida is not a nation state, nor a uniformed Army. And that if they were engaged in combat against American troops in the field, their citizenship is irrelevant.

    Where I disagree is (in my mind) the important part. If we accept this justification, we give carte blanche to the Executive branch to execute any individual in the world, with no legal restrictions of any meaning. And let me demonstrate how this is true:

    1) Threat must be imminent,
    Under no stretch of the imagination was Samir Khan or Anwar al Awlaki an “imminent threat” to the US or its citizens when they were killed. They were not engaged in a strike, they were not planting an IED, they were driving around in Yemen. Khan wasn’t even a terrorist planner, he was a propagandist. So “imminent threat” is more open and flexible than it sounds. So the “restriction” that condition represents is clearly not exactly a hard and fast rule.

    2) Capture must not be feasible,
    What constitutes feasible? They must be in the US? A Western European nation? A friendly Arab nation? We’ve got no indication other than the two killed in Yemen. A nation we have free enough reign in that we can park in their ports and they let us fly armed drones in their airspace. So what exactly constitutes not feasible? We’ve got no clue.

    3) The strike is otherwise in accordance with the laws of war.
    I will not pretend to argue that the Khan/al Awlaki strike was not within the laws of war as I understand them. But very little isn’t. It would be within the laws of war to use a sniper to kill the target. And it would even be within the laws of war to shoot the target on US soil. The laws of war are no bar to use sufficient force to kill a citizen on the streets of this country. So the limitation is really moot.

    You left off the fourth limit “an informed highly placed official” signed off on it. Well, it’s good to know that an unnamed (and probably unelected) official said it’s ok, so we can do it.

    The fact is, while I DO believe that the killing of Khan and al Awlaki were justified (and even possibly legal), my problem is this justification, as written, is an open ticket to kill anyone that this unnamed official deems is a threat. And if we accept it and say, “yeah, this looks good” then we’ve taken yet another dangerous step in shredding the Constitution.

    Now, ANYONE can bitch about a problem, but it kinda makes you an ass if you don’t present a solution. Here’s mine. We have a FISA court for a reason. Is it impossible for the Administration to go before the court and lay out a case for why this or that target is an active member of al Qa’ida and needs to be whacked. If the FISA court signs off on it, all well and good. If the Administration CANNOT make that case to the satisfaction of a FISA court, then MAYBE they shouldn’t be out whacking US Citizens on their own recognizance.

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    • Bill

      I’m more in Brad’s camp for this memo (as much as it pains me to agree with this Administration on almost anything). While I see the inherent problems with policy, I also see the problems of not having this type of policy. Furthermore, I think that this memo is probably just a restatement of the understanding/policy that existed during the Bush Administration.

      The problem with your solution of presenting the evidence to a FISA-type court is that doing that runs into a multitude of Constitutional problems. The thorniest of those is the Sixth Amendment.

      SCOTUS has consistently held that the deprivation of liberty or life cannot happen in the absence of a criminal defendant. Essentially, what we are saying in taking the information to a FISA-type court is that the terrorist is a criminal entitled to due process. Well, if that’s case, then at a minimum, the terrorist has the right to be present and contest the presentation of evidence (whether they have the right to confront the actual source is debateable). Furthermore, what such an application is asking for is the imposition of a death penalty on someone. Forgetting the absurd Eighth Amendment arguments, only a jury can impose the death penalty, not a court.

      Unlike some nations, we do not have “emergency” provisions in our constitution. That is good and bad, or perhaps more accurately problematic. In this case, its definitely problematic. Right now, SCOTUS has essentially drawn the line at the reach of the US Constitution as the US territory (although some exceptions either way). If we say the constitution applies to our actions against our citizens outside the US, then with that all of their rights apply.

      We have no legal concept of the “outlaw” any more in US jurisprudence. I am unhappy with the definition of imminent in the memo. However, requiring due process opens a host of problems.

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    • MikeD

      The problem with your solution of presenting the evidence to a FISA-type court is that doing that runs into a multitude of Constitutional problems. The thorniest of those is the Sixth Amendment.

      Bill, that may be true. But the solution is NOT to say “welp, I guess we should just kill them with NO restrictions then.”

      I mean seriously! There’s no limit to this thing short of “an informed high-level official” says the target is a member of al Qa’ida. And by the time the target (or indeed any of the rest of us) knows about it, we’d need a Oujia board to find out if they were. Seriously, the way this is written, if you or I are named “members of al Qa’ida” by that “informed high-level official”, then we can be killed on that basis alone (if they also assert our capture would be “unfeasible” and the strike could be performed in accordance with the laws of warfare). No jury, no judge, just an executioner.

      Let me put it in these terms. We KNOW Jared Loughner killed a bunch of people in that theater shooting. He was caught with the gun in his hands. HE’S getting more of a trial than Samir Khan did. And I think you’d be hard pressed to find one corpse made by Khan. The dude was a modern Tokyo Rose (who we gave a trial to). Yeah, I’m not particularly sad he’s dead, but I’m a bastard like that. But the problem I have is the White House’s justification says “trust me, we know he was bad” and expects that to be a legal standard. I have a problem with that.

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    • Bill

      MikeD, I’m not saying that I’m necessarily comfortable with it. This is the problem of modern warfare. State actors are not necessarily needed. The last time that I’m aware of that non-state actors were such a problem was back during the heyday of piracy,. Back then, it was pretty clear who was a pirate and who was not (the analysis as I recall went something like, 1) Is there a valid letter of marque 2) whether the suspect was attacking another vessel). So we could treat them differently and kill them if they didn’t want to surrender when a USN vessel came in sight.

      The problem with Jared Loughner is that he was an American on US territory when he committed the crime and was apprehended. Tokyo Rose is a better analogy to Khan, but the problem was back in the 1940s, we did not have the ability to individually target her. Any attack back then would be against the city she was broadcasting from.

      The real weakness in the memo, I think, is really the standard of feasibility for capturing a person as opposed to taking them out with a drone. The memo is not going to serve as a basis for strikes on US soil. So the real question is what do we say is feasible? At one end, I’m sure the Obama Administration would argue that it is not feasible to apprehend the person if there was a significant potential that such an operation would result in loss of life to the apprehending party (I know I’m not saying this right, but whatever they used as the rationale to try and kill the Osama Bin Laden raid would be the terms that they would use).

      This then brings up another point. If we are saying we need to apprehend, do they then get Miranda rights? Once they hit an American ship or plane, that could count as US territory and require all the rights to attach. Its a thorny question.

      In one of the later comments, someone brought up a sort of trial in absentia and the quesiton of how we determine who is Al Qaeda. The trial in absentia thing is problematic at best, as I’ve stated above. Which is why I see the DOJ as trying to keep everything firmly within the Executive Branch’s powers, specifically foreign policy and war conducting. Those are areas that court will not touch absent some special circumstance.

      In an ideal situation, Congress would deal with this like it did the question of piracy back when the nation started. Was the solution back then perfect? No, but at least it gave a framework to operate from and limits on what the executive could and could not do. And arguably acts of terrorism would fall into Art 1, S 8, Clause 10

      At the bottom line, while I think the policy is legal, I’m uncomfortable with it because of who is calling the shots. Therefore, I have to hope that if it becomes questionable, that the people who actually execute the mission (i.e. the military) will remember what their part of the equation is.

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    • MikeD

      Bill,

      A letter of Marque was not exactly a defense if the holder was captured. Legally, yes, the holder of a letter of Marque was a “legal” pirate insofar as the issuing country was concerned (right up until that became inconvenient for the issuing country), but meant next to nothing if the pirate was captured by another power. But in practice a raider bearing a letter of Marque was hanged just like any other pirate. Legal niceties be damned.

      My Loughner example was poorly worded. Where I was trying to go with this is more like this. Loughner has corpses in graves that he directly put there. There are people dead because of actions he took directly. Khan and Tokyo Rose never (to the best of my knowledge) put a bullet in anyone. They spread propaganda. Now, treasonous? Sure. I have no beef with that. But on the one hand, we have a cold blooded murderer, caught red handed and NO ONE questions whether we give him a trial or not. We KNOW he’s guilty, but he gets a jury, a massive appeals process, and (odds are) a lifetime in prison. Khan (traitor though he may be) had none of that. If a man who kills many people in front of witnesses gets a trial, then the one who (traitor though he be) doesn’t deserves something more than “he’s a bad guy, kill him.” (IF he’s a US Citizen)

      The memo is not going to serve as a basis for strikes on US soil.
      That’s a complete assumption. No where in the entire memo does it state that it only applies OCONUS. The restriction is that “capture is unfeasible”. As far as I am aware, that’s not exactly a legal term. What is feasible to you or me might not be to someone who wants to stretch the definition to suit their needs. My objection to this is that NOTHING is clearly spelled out. Khan’s capture (clearly) was labelled “unfeasible”. But was it? Yemen’s letting us operate in their airspace, use their ports, and if we pressed them (or bribed them), I’m sure they’d even have picked him up for us or let us do it. Guaranteed? No, but here’s the other half. If we know where he is, and he’s not shooting at someone, planting a bomb, or any of the myriad things that give law enforcement the right to use immediate lethal force… then why do we need to whack the dude RIGHT THEN? Can we not track him until either he becomes a threat like that or until he becomes capturable? Or, even better, since the immediacy is not there, can we not clear the killing of a US Citizen before doing it? Or even AFTER?

      If we are saying we need to apprehend, do they then get Miranda rights?
      I’m not saying we NEED to capture the dude. I’m certainly not talking about lawfare-ing them. I’m talking about SOME form of oversight. I’m talking about some manner of approval other than “an informed [unnamed, unelected] highly-placed official” said so. I’m talking about at least APPEARING to care what the Constitution says. Let a judge see the Administration’s case why this dude deserves to have his civil rights stripped. If it requires divulging secret data, make it a FISA judge. Require Congressional oversight, even if after the fact. Make the Administration justify what they’re doing. Don’t just let them get away with “trust me”.
      And to further clarify, I’m ONLY talking about these decisions made with forethought. If Joe Schmuckatelli joins al Qa’ida and picks up an AK in Afghanistan or plants an IED, ice him. No questions asked. He’s engaging in actual direct warfare at that point. If he surrenders, throw him in with the rest of the detainees/POWs. We’ve got precedent for all of that. US Citizens fought for the Nazis, and the Kaiser, and Mussolini, and any number of other nations we fought against. We KNOW how to handle that. What we don’t have is precedent for whacking a dude driving through the desert far from any battlefield when he’s a US Citizen.

      If I didn’t bring up the trial in absentia, I’ll do it now. I’ve got no problem having a court (even a FISA court) strip these traitors of their citizenship in absentia (at least, I have no problem as compared to this alternative of “trust me”) because at least then SOMEONE other than this mysterious Administration official is picking and choosing who is a member of al Qa’ida and stripping them of their civil rights completely. If the Administration can make the case in a courtroom that Joe Schmuckatelli is a member of al Qa’ida and waging war against the US, that may be “problematic” as you say, but it’s a hell of a lot less problematic than giving them carte blanche to give him a Hellfire enema.

      And finally, it’s not an issue of who’s in charge of this power, it’s that ANYONE is in charge of this power. The unrestrained, unsupervised, and unilateral ability to declare a US Citizen an Enemy of the State is not a power I want to give to any branch of the government. Republican OR Democrat, doesn’t matter to me. This power, once assumed will never be surrendered, and will only be expanded.

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  3. ultimaratioregis

    Brad,

    Your take on the other side of the coin is well-stated and makes some excellent points. The problem is a vexing one. One has to ask whether the solution, however, is mortal.

    “If URR is comfortable with Alwaki and Kahn being killed by troops on the ground, he should be just as comfortable with them being killed by any other method…”

    Not necessarily.

    If killing terrorists is the goal, why then did we have the uproar over detainees in Guantanamo? They were illegal combatants, not falling into the four recognized categories of lawful combatants as defined by the 1949 convention. Why was this same Administration pushing for civil trials in New York for people we DID capture taking up arms against American troops? Why not just execute them? Even by US standards, THEIR due process does not include a trial.

    If Awlaki and Khan had been killed on the battlefield, it would have been a happenstance of war and not the carrying out of a sentence, not the considered act of a government toward its citizens (wherever they may be).

    But if Awlaki and Khan were killed trimming their toenails in a shabby Yemeni hotel after exhorting their Islamist buddies to practice Jihad, is that treason? Is that, in fact, materially different from statements many of the Islamist-sympathizers make in this country rather routinely? And is that really “aid and comfort”? I don’t believe a star chamber behind closed doors is the way to decide that. I would have settled even for a trial in absentia, or other appropriate form of legal proceeding, because what is outlined in this memo does not, in any way, shape, or form, resemble Constitutional due process.

    The assertion that it does is indeed VERY new. And exceedingly dangerous. Taken to its not-so-distant logical extreme, it is the thing of oppressive dictatorship. And in the hands of this Administration or others, someone, some time, will push the limits of its meaning and use. It would be THAT eventuality, and not Awlaki’s confederates, that would destroy America.

    That said, well-written post, and definitely points for consideration.

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  4. firecapt

    Abdulrahman al-Awlaki, Anwar’s 16 year-old son was killed a couple of weeks after his father in another drone strike. He was born in Denver, CO and was an American citizen. Has anyone rationalized that killing yet?

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    • Jeff Gauch

      I believe the target of that strike was another high-ranking member in Al Queda (Wikipedia says Ibrahim al-Banna) who was in the car, not Al-Awlaki the younger. Thus his death was simply collateral damage, or as I prefer to think of it, cleaning the gene pool.

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  5. URR, once the determination has been made that they are enemy combatants, either lawful or unlawful, they’re fair game, from a military point of view. You know and I know that zapping an enemy combatant trimming his toenails is well within the scope of fair play.

    So the question becomes, how do we determine who is an who isn’t an enemy combatant, especially since non-state terrorist organizations tend to work to blur the lines. and exploit our devotion to the rule of law.

    Someone has to make that determination. And if you haven’t figured it out, it is the President. Even if somewhere there’s another memo giving another name, in actuality, the President is the going to give the thumbs up or down on each targeting of an American citizen. The fact that the memo is so squishy in terms of saying that is a result of the massive propaganda attacks against the Yoo memo. Politically, the memo just doesn’t want to give opponents on the Right and the Left ammo to attack.

    Don’t forget, this memo is actually a constraint. Absent such a process, arguably commanders in the field could make a determination that someone is a suitable target. This pulls that authority back into politically accountable hands.

    As to FISA court, it likewise has largely been silent on military operations overseas. That court recognizes its jurisdiction is within the borders of the US.

    Trials in absentia are problematical for Constitutional reasons. The only time you see them (and they’re very rare) is when someone has fled bail. Anyone indicted for a crime has constitutional rights to face their accuser, .see and challenge the evidence against them, bring witnesses, and have counsel. Until such time as a defendant has actually been in court (and thus, have been arrested), they haven’t had access to those rights. By jumping bail, they’ve waived the exercise of those rights.

    Holding a trial in absentia for someone who has never even been arrested smacks of a show trial. And every defense lawyer in the country would be lining up to file habeous corpus briefs. And they’d win. Ergo, the courts have largely said “it’s not our problem.”

    I’m not saying the memo is perfect, or even very good. But it does, in fact, work as a constraint upon the executive branch, lays out a rationale for the use of force against US citizens abroad, and rather than having some vague, nameless committee to “spread the blame” focuses that blame on one individual. We may not know that name now, but in the event of a political kerfuffle, it would come out. Absent that, the President is still of course, responsible for the execution of his policies. That is a political constraint on the capricious use of the tactic.

    It is right and proper that we be suspicious and grudging in allowing the government to exert its power. But we also have to ensure that we don’t so engage in lawfare ourselves that we hamstring the government from executing its duties to provide the common defense.

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    • MikeD

      My question, Brad, is where’s the limit? By the strict reading of this memo, and looking at how it’s been applied, the limit seems to be “whatever we decide”. The limits it provides are not limits. I hesitate to call them guidelines. They’re justifications, provided AFTER the fact for why the Administration has the right to declare US Citizens “enemies of the State” and have them killed. No evidence needs to be provided, no judicial oversight, no Congressional oversight, no appeal process, no burden of proof, just the say so of this unnamed “official”. And you’re not the least bit concerned?

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    • Of course I’m concerned. But I don’t want to reach the conclusion that military force can never be used against someone just because they carry a US passport.

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    • ultimaratioregis

      I give you that a trial in absentia is a flawed solution, but it is infinitely better than “an informed high-level official” and deliberations behind closed doors. I get that it may appear to be a “show trial”. The alternative, which was carried out, was an execution without trial. In fact, an execution without the proffering of charges.

      I understand your points, and do concede they are important. Our disagreement is whether the memo limits such actions, or provides a framework for legal justification. I believe it to be the latter. In addition, simple accountability to the voting populace is not sufficient limitations on power for the government of a free people. Far too much mischief can be instigated so that 50.0001% of the “voters” comprise an autocracy of the masses.

      Establishing Justice is mentioned before the Common Defense, just sayin….

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  6. Chief Torpedoman

    Well for my $0.02, “This entire memo is based off the fact that Congress has declared war, excuse me, authorized the use of military force, against Al Queda”

    Well who exactly is to determine that someone is actually in Al Queda? The President? So what are the standards for saying someone is in Al Queda? How loose an association does it take to put you on the target list?

    It would seem that anyone the administration wanted to elimate could be branded as “al queda”.

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    • That’s the central core of the problem. But it isn’t like AQ publishes a membership list. Someone, somewhere has to make that determination. Any method we propose would be flawed to some extent.

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  7. SFC Dunlap 173dRVN (Ret.)

    Since my teenage years until this my sixty second year and my military career I always wondered who differentiates between “foreign and domestic” enemies? What does that mean and what applications are possible? The “government” has largely done what it wants, and when it wants and this concept is not new under the sun. This brings me to my question in point which is WTF does it matter that the government is potentially doing what it is doing? The government has been doing various forms of this since at least the War of 1812. As it is the drone programs (there are basically two), are run by the CIA and the Pentagon and they run on different sets of ROE’s with I’m sure some “blending.” I appreciate the constitutionally legal point of discussion here, but bottom line gentle people is what difference will it make. I did not vote either time for the President and I don’t believe he or his staff are truly capable of running unbridled with this program. Do I agree with most of the points here in, yes I do, I just believe things are going to go the way they are going to go. Keep calm & carry on for until and unless drones start taking out, oh lets say a street gang (which wouldn’t bother me in the least), we can’t do much about it. A little bit of fraticide/collateral damage is pretty much uniform in warfare.

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  9. ultimaratioregis

    “The memo is not going to serve as a basis for strikes on US soil.”

    Bill, I would NEVER make that statement. Ever.

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  10. What I do not get is why we are still feeding the Gitmo detainees? They were all found on a battlefield right? I understand verifying intelligence but after a dozen years I hardly think KSM is doing much of that nowadays.

    I kind of get Bush with the war criminal thing leaving it with delicious irony to O’bumbles. Isn’t it time for a trial? Why not summary executions?

    I know this is tangential to the conversation so feel free to delete for being off topic or unseemly.

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  11. LT Rusty

    Brad, I love you like a brother, but you’re WAY off target on this one.

    I’m not going to belabor this – MikeD hit the high points already, re: imminent threat, feasibility of capture, and laws of war, but there’s one point that really sticks out beyond that for me.

    Above, you said: “[snip] once the determination has been made that they are enemy combatants, either lawful or unlawful, they’re fair game, from a military point of view. You know and I know that zapping an enemy combatant trimming his toenails is well within the scope of fair play. [/snip]”

    Certainly someone is liable to be killed when they’re acting as an enemy combatant, but there’s a big difference between killing Klaus Jurgens of Milwaukee who returned to der Vaterland and was fighting as a loader in a PzKw IV with SS-Das Reich when his tank happened to get blown to hell on the battlefield vs deliberately seeking out an American citizen who has joined an enemy force and specifically targeting them. Who makes that determination of guilt vs innocence? How was that determination made here? What process was used?

    Thing is, we don’t really know. Sure, this guy might have been (and in fact almost certainly was) a scumbag that needed to die … but I’m REALLY f***ing uncomfortable with the executive branch deciding that he’s a specific target. Once you open Pandora’s box, it’s pretty hard to get it to stay closed again.

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