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Title: ACLU objects to killing of al Qaeda leader
Source: The Hill
URL Source: http://thehill.com/blogs/blog-brief ... -to-killing-of-al-qaeda-leader
Published: Sep 30, 2011
Author: Erik Wasson
Post Date: 2011-09-30 12:40:46 by Sebastian
Keywords: None
Views: 125784
Comments: 179

The American Civil Liberties Union has objected to the killing of the U.S.-born Muslim cleric Anwar al-Awlaki in Yemen by U.S. forces.

Awlaki was a U.S. citizen, and the ACLU said President Obama does not have the authority to kill an American without due process of law. The White House confirmed the cleric was killed by a U.S. drone attack.

“The targeted killing program violates both U.S. and international law,” ACLU Deputy Legal Director Jameel Jaffer said. “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts.”

The ACLU said the government only has the authority to kill Americans when a threat is imminent.

“It is a mistake to invest the president — any president — with the unreviewable power to kill any American whom he deems to present a threat to the country,” Jaffer said.

Ben Wizner, litigation director of the ACLU’s National Security Project, added:

“If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state.”

Obama’s actions also garnered criticism from GOP presidential candidate Rep. Ron Paul (Texas).

Post Comment   Private Reply   Ignore Thread  


TopPage UpFull ThreadPage DownBottom/Latest

Begin Trace Mode for Comment # 37.

#4. To: Sebastian (#0) (Edited)

President Obama does not have the authority to kill an American without due process of law.

It's called first degree murder.

I know that a lot of people are out thumping their chests today, but without any evidence to the contrary, the only thing we know for sure is that al-Awlaki was posting political opinions on a website.

Posting political opinions on a web site is not against the law. Remember, that is what we do here on LF.

Also remember, that the very first thing Obama's Department of Homeland Security did was issue a report about homegrown, "right-wing extremists".

Tie these two together, along with Obama's constant demonetization of his opponents, and it points to a very bad place.

jwpegler  posted on  2011-09-30   13:30:44 ET  Reply   Untrace   Trace   Private Reply  


#5. To: jwpegler (#4)

It's called first degree murder.

Nope, it's called war. Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

See: http://volokh.com/2011/09/30/anwar-al-aulaqi-apparently-killed-by-drone-in-yemen/

and:

http://www.lawfareblog.com/2011/09/al-awlaki-as-an-operational-leader-located-in-a-place-where-capture-was-not-possible/

go65  posted on  2011-09-30   15:09:03 ET  Reply   Untrace   Trace   Private Reply  


#9. To: go65, jwpegler (#5) (Edited)

Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

Can you please identify the U.S. law to which you refer?

nolu chan  posted on  2011-09-30   20:25:51 ET  Reply   Untrace   Trace   Private Reply  


#22. To: nolu chan (#9)

Can you please identify the U.S. law to which you refer?

I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......"

That would be an opinion of the court in case law, would it not? Does that mean the political question doctrine means the Executive Branch can get away with killing a US citizen without due process and not be held accountable except by the ballot?

Sebastian  posted on  2011-10-01   21:27:22 ET  Reply   Untrace   Trace   Private Reply  


#24. To: Sebastian, go65 (#22)

[go65 #5] Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

[Sebastien #22I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......"

That would be an opinion of the court in case law, would it not?

El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)

I believe el-Shifa would not be an opinion of the court in case law, at least not in the sense of deciding anything about the issue other than that the court could not decide it or render any opinion on it, at least not in the sense you appear to convey.

It is the same as the al-Aulaqi case. The court stated it did not have jurisdiction to hear the case. It's only "opinion" was that it was asked to answer a non-justiciable political question. The court lacked subject matter jurisdiction. The case was dismissed. The court did not decide the issue of whether the President has the authority to atttack enemy combatants outside the U.S., regardless of their citizenship/country of origin. It decided that the Plaintiff's question was not proper for the court to decide.

Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.

I would have to question this claim of go65 on a few points.

I am unaware of current U.S. law that affirmatively grants such authority as that claimed. I do not know what law was being considered.

The use of the term enemy combatants appears imprecise. I believe the more appropriate term would be unlawful combatants. In this context, I would question whether whether al-Aulaqi fits the description of any sort of combatant.

The CIA action appears to be the targeted assassination of an American citizen. Assassination appears to be prohibited by EO12333 of 1981 (Reagan), Section 2.11.

- - -

Doc 1 - Al-Aulaqi v Obama, DCDC 10-1469, COMPLAINT Re Targeted Killing

- - -

Al-Aulaqi v Obama, USDC DCDC 1-10-cv-01469, Doc 31, OPINION (07dec2010)

At 4: "Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum."

The reference to a non-judicial forum is to a Legislative forum, i.e., Congress.

= = = = =

el-Shifa OPINION of the Court at 6-7:

The district court granted the government’s motion to dismiss the complaint for lack of subject-matter jurisdiction, see FED. R. CIV. P. 12(b)(1), concluding that sovereign immunity barred all of the plaintiffs’ claims. See El-Shifa, 402 F. Supp. 2d at 270–73. The court also noted that the complaint “likely present[ed] a nonjusticiable political question.” Id. at 276. The plaintiffs filed a motion to alter the judgment with respect to their claims for equitable relief, which the district court denied. See El-Shifa Pharm. Indus. Co. v. United States, No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007). The plaintiffs appealed, challenging only the dismissal of their claims alleging a violation of the law of nations and defamation. The plaintiffs have abandoned any request for monetary relief, but still seek a declaration that the government’s failure to compensate them for the destruction of the plant violated customary international law, a declaration that statements government officials made about them were defamatory, and an injunction requiring the government to retract those statements. A divided panel of this court affirmed the district court, holding that these claims are barred by the political question doctrine. See El-Shifa Pharm. Indus. Co. v. United States, 559 F.3d 578 (D.C. Cir. 2009). We vacated the panel’s judgment and ordered rehearing en banc. See El-Shifa Pharm. Indus. Co. v. United States, 330 F. App’x 200 (D.C. Cir. 2009).

el-Shifa OPINION of the Court at 27:

Our concurring colleagues charge the court with “sub silentio expand[ing] executive power.” Concurring Op. of Judge Ginsburg at 3 (quoting Concurring Op. of Judge Kavanaugh at 11). To the contrary, it is they who would work a sub silentio expansion. By asserting the authority to decide questions the Constitution reserves to Congress and the Executive, some would expand judicial power at the expense of the democratically elected branches. And by stretching beyond all precedent the limited category of claims so frivolous as not to involve a federal question, all would permit courts to decide the merits of disputes under the guise of a jurisdictional holding while sidestepping obstacles that are truly jurisdictional.

Straightforward application of our precedent makes clear that the plaintiffs face such an obstacle here. Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of retaliatory military action taken by the United States. Despite their efforts to characterize the case differently, that is just what the plaintiffs have asked us to do. The district court’s dismissal of their claims is

Affirmed.

Docket Report - el-Shifa v USA, USCA DC Cir 07-1514, Docketed 31may2007 Termed 08jun2010

- - -

el-Shifa v USA, USCA DC Cir 07-5174, OPINION (8jun2010) (political question)

- - -

Here are some documents that touch on the topic.

  • Geneva Convention Relative to the Treatment of Prisoners of War

  • Military Commissions Act of 2006

  • Authorization for Use of Military Force (AUMF) of 2001

  • Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13nov2001) President GW Bush

  • The WAR POWERS Resolution of 1973

  • EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008)

- - -

Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva Convention III)

- - -

Military Commissions Act of 2006, S3930

- - -

Authorization for Use of Military Force (AUMF), 115 Stat 224; PL 107-40; SJ Res 18sep2001

- - -

Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13n...

- - -

The WAR POWERS Resolution of 1973 - Text and Records From Congress

- - -

EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008)

Page 14, paragraph 2.11:

2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.

- - -

nolu chan  posted on  2011-10-04   21:05:48 ET  Reply   Untrace   Trace   Private Reply  


#29. To: nolu chan (#24)

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

~~~~~~~~~~~~~~~~~~~~~~~~~

It's pretty clear that such a "determination" about this asshole was so made.

war  posted on  2011-10-05   7:44:08 ET  Reply   Untrace   Trace   Private Reply  


#32. To: war (#29)

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Please show the slightest evidence that al-Aulaqi had anything to do with "the terrorist attacks that occurred on September 11, 2011."

Please show that "appropriate force" permits targeted assassination.

While the AUMF related to September 11, 2001 is often cited, that AUMF is directly related to the events of 9/11. Also, the AUMF authorizes the use of military force under specified conditions. The CIA is not military. The non-uniformed CIA operatives would fall under the category of unlawful combatants.

U.S. Const., Amdt 5: "No person shall be … deprived of life, liberty, or property, without due process of law…." If the AUMF is interpreted to bypass any provision of the Constitution, then it must be unconstitutional.

This argument will not be ultimately resolved until Congress directly addresses it, and the judicial branch rules on it.

There are problems with the attempt to contort the law to hold as lawful, targeted assassination, absent any due process, based solely on bureaucratic placement on a list. Would it be proper and lawful for Yemen or some other country to declare the Wall Street banksters a terrorist organization, posing a threat to the national security of the world, and initiate attacks upon Wall Street?

nolu chan  posted on  2011-10-05   16:01:11 ET  Reply   Untrace   Trace   Private Reply  


#33. To: nolu chan (#32) (Edited)

Please show the slightest evidence that al-Aulaqi had anything to do with "the terrorist attacks that occurred on September 11, 2011."

He met with and, IIRC, harbored two of the 9/11 hijackers and became an integral member of AQ as a spokesman and a plotter and had himself called for "jihad" against the US and acts of terror against us.

Please show that "appropriate force" permits targeted assassination.

Please show me where "appropriate force" means "Shoot but not kill".

Thanks.

And we killed Izzy Yamamoto...

While the AUMF related to September 11, 2001 is often cited, that AUMF is directly related to the events of 9/11.

And the Delcaratio of War on 12/8/41 was directly related to the events of 12/7/41.

That said, the resolution, as I highlighted, extends to those who gave aid and comfort to the plotters or were members of the organization. You may also wish to consider that the resolution clearly states that under the USCON a POTUS may take military action to kill terrorists.

U.S. Const., Amdt 5: "No person shall be … deprived of life, liberty, or property, without due process of law…." If the AUMF is interpreted to bypass any provision of the Constitution, then it must be unconstitutional.

The Congress is charged with making the rules for war and the use of the military. Were the B/R effective in restrainiing all acts and orders of the executive in his role as CIC, any use of the military resulting in death would be so violative of 5A.

This argument will not be ultimately resolved until Congress directly addresses it, and the judicial branch rules on it.

The Congress did when in its 9/18/01 resolution it authorized force against AQ. On the juducial branch ruling - we agree. I'm not the one who will be disappointed were it to be so adjudicated.

war  posted on  2011-10-05   16:15:29 ET  Reply   Untrace   Trace   Private Reply  


#34. To: war (#33)

[war #33] He met with and, IIRC, harbored two of the 9/11 hijackers and became an integral member of AQ as a spokesman and a plotter and had himself called for "jihad" against the US and acts of terror against us.

As far as I know, he stood neither indicted nor charged with any criminal act, much less tried or convicted. I know of no assertion that he "harbored" 9/11 hijackers. Even if there were evidence that two people who later became hijackers stayed with him, absent knowledge that he was a co-conspirator with foreknowledge of future criminal plans, it's nothing. In 2000, he met two of the future hijackers at his mosque in San Diego. The FBI investigated and found no cause to detain al-Aulaqi. The 9/11 commission found they respected al-Aulaqi as a religious leader.

http://en.wikipedia.org/wiki/Anwar_al-Awlaki

Al-Awlaki allegedly spoke with, trained, and preached to a number of al-Qaeda members and affiliates, including three of the 9/11 hijackers, alleged Fort Hood shooter Nidal Malik Hasan, and alleged "Christmas Day bomber" Umar Farouk Abdulmutallab; he was also allegedly involved in planning the latter's attack.

http://www.dailymail.co.uk/news/article-2043772/Anwar-al-Awlaki-NYC-alert-possible-revenge-attacks-Al-Qaeda-boss-killed.html

Born in New Mexico in 1971 to Yemeni parents al-Awlaki left the U.S. as a child as his family returned to Yemen. He then came back to America in 1991 as a mosque preacher where he conducted his university studies. He was not seen by his congregations as radical.

While in San Diego, he preached at a local mosque, where in 2000 he met two of the 9/11 hijackers, Khalid al-Midhar and Nawaf al-Hazmi. The FBI questioned him at the time but found no cause to detain him.

The U.S. government's 9/11 Commission report says the men 'respected al-Awlaki as a religious figure and developed a close relationship with him.' They were aboard the plane that crashed into the Pentagon.

He then preached at a mosque in Virginia before leaving the U.S. to return to the Middle East where he rose to become one of the CIA's most wanted.

After 9/11 al-Awlaki became the public face of al Qaeda in the Arabian Peninsula and one of the CIA's most wanted men in the world.

Counterterrorism cooperation between the United States and Yemen has improved in recent weeks, allowing better intelligence-gathering on al-Awlaki's movements, U.S. officials said. The ability to better track him was a key factor in the success of the strike, U.S. officials said. Officials spoke on condition of anonymity to discuss intelligence matters.

Al-Awlaki's death is the latest in a run of high-profile kills for America under President Obama. But the killing raises questions that the death of other al-Qaida leaders, including bin Laden, did not.

Al-Awlaki is a U.S. citizen, born in New Mexico to Yemeni parents, who had not been charged with any crime. Civil liberties groups have questioned the government's authority to kill an American without trial.

- - -

[war #33] Please show me where "appropriate force" means "Shoot but not kill".

Thanks.

And we killed Izzy Yamamoto...

Please show where AUMF pertains to anything other than military force in combat? How do you translate it to non-military force engaged in assassination?

Do you really find the status of American/Yemini citizen Al-Aulaqi comparable to that of Admiral (Japanese Naval General) Yamamoto?

- - -

[nc #32] While the AUMF related to September 11, 2001 is often cited, that AUMF is directly related to the events of 9/11.

[war #33] And the Delcaratio[n] of War on 12/8/41 was directly related to the events of 12/7/41.

That said, the resolution, as I highlighted, extends to those who gave aid and comfort to the plotters or were members of the organization. You may also wish to consider that the resolution clearly states that under the USCON a POTUS may take military action to kill terrorists.

You cannot possibly equate a general declaration of a state of war existing between two nations with the congressional Authorization for the Use of Military Force (AUMF). Your interpretation of the AUMF makes it an open-ended authorization to kill anybody, anywhere, by the non-military CIA, based solely on the person's name being placed on some assassination or kill list.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) WAR POWERS RESOLUTION REQUIREMENTS.—

(1) SPECIFIC STATUTORY AUTHORIZATION.—Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

Section 5(b) of the War Powers Resolution of 1973.

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has dedared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces

Section 4 of the War Powers Resolution of 1973.

REPORTING

SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hour's to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.

(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

- - -

nolu chan  posted on  2011-10-05   19:32:38 ET  Reply   Untrace   Trace   Private Reply  


#37. To: nolu chan (#34)

Please show where AUMF pertains to anything other than military force in combat?

Please cite your authority for claiming that a) the resolution requires that all military actions be "combat" when the resolution clearly states "all necessary and appropriate force" and that command and control structures and personnel would be immune from any type of military strike or that b) a drone attack is not "military force"?

And please don't cite wikipedia as being some sort of authority.

Thanks.

You do know that the Ft. Hood shooter is not being tried in civilian court?

You cannot possibly equate a general declaration of a state of war existing between two nations with the congressional Authorization for the Use of Military Force (AUMF). Your interpretation of the AUMF makes it an open-ended authorization to kill anybody, anywhere, by the non-military CIA, based solely on the person's name being placed on some assassination or kill list.

AUMF dated 9/18/01 is not a general declaration of a state of war between two nations. It is a resolution which authorized the use of military force against AQ to both retaliate for the 9/11 attack and to thwart future attcks from the same organization. "a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The resolution cannot be interpreted in the narrow sense that you want it to be which would be to allow for force for who the hell knows what. The resolution specifically authorizes preemptive strikes to thwart future acts of terrorism by AQ. The Congress understood this when it required DumbDubv43 to seek a separate resolution to invade Iraq. I doubt that you'd find 5 Congressmen who would agree that the original 9/18/01 resolution did not authorize continued action against AQ anywhere they may be.

As for you citation of the War Powers Act, what makes you believe that Obama is not consulting with the Congress?

war  posted on  2011-10-05   20:06:54 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 37.

#45. To: war (#37)

You do know that the Ft. Hood shooter is not being tried in civilian court?

Yes, just as you know he was on active duty with the U.S. military and subject to the Uniform Code of Military Justice and Military Court Martial, as provided for by the Constitution at Article 1, Section 8, and by 10 U.S.C. He is not subject to trial by Military Commission nor to summary execution. Nor was U.S. citizen al-Aulaqi subject to trial by Military Commission, something quite distinct from a trial by Military Court Martial under the Uniform Code of Military Justice.

10 USC 948a on Military Commissions, states:

(7) Unprivileged enemy belligerent.— The term “unprivileged enemy belligerent” means an individual (other than a privileged belligerent) who—

(A) has engaged in hostilities against the United States or its coalition partners;

(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or

(C) was a part of al Qaeda at the time of the alleged offense under this chapter.

(8) National security.— The term “national security” means the national defense and foreign relations of the United States.

(9) Hostilities.— The term “hostilities” means any conflict subject to the laws of war.

10 USC 948c

2010 US Code
Title 10 Armed Forces
Subtitle A —General Military Law (§§ 101—2925)
PART II —PERSONNEL (§§ 501—1801_to_1805)
CHAPTER 47A —MILITARY COMMISSIONS (§§ 948a—950t)
SUBCHAPTER I —GENERAL PROVISIONS (§§ 948a—948d)

§ 948c. Persons subject to military commissions

Any alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter.


The resolution cannot be interpreted in the narrow sense that you want it to be which would be to allow for force for who the hell knows what. The resolution specifically authorizes preemptive strikes to thwart future acts of terrorism by AQ. The Congress understood this when it required DumbDubv43 to seek a separate resolution to invade Iraq. I doubt that you'd find 5 Congressmen who would agree that the original 9/18/01 resolution did not authorize continued action against AQ anywhere they may be.

As for you citation of the War Powers Act, what makes you believe that Obama is not consulting with the Congress?

America...My Kind Of Place...

If the AUMF said the things you want it to say in your words, you would quote the AUMF language saying it.

The act is specific in its language:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Take note of all the past tense verbs. It is an authorization to use military force, and military force only, for past actions which had been taken in carrying out or aiding the attack on 9/11.

It is not an open ended authorization for the CIA to do anything. It is not an open ended authorization for the President or anyone else to allege someone has some link to AQ or whatever, and to go bomb someplace or commit assassination.

al-Aulaqi has not been shown to have been a 9/11 conspirator.

nolu chan  posted on  2011-10-05 20:53:43 ET  Reply   Untrace   Trace   Private Reply  


#48. To: war (#37)

As for you citation of the War Powers Act, what makes you believe that Obama is not consulting with the Congress?

The WPA does not impose a requirement to consult with Congress. It imposes a requirement to submit written reports. I don't believe there is a 10-year trail of such reports from GWB and Obama.

The WPA at Section 8 provides:

INTERPRETATION OF JOINT RESOLUTION

SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred—

(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or

(2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.

(b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

(c) For purposes of this joint resolution, the term "introduction of United States Armed Forces" includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.

(d) Nothing in this joint resolution—

(1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or

(2) shall be construed as grantmg any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.

nolu chan  posted on  2011-10-05 21:41:30 ET  Reply   Untrace   Trace   Private Reply  


#101. To: war (#37)

[war #33] Please show me where "appropriate force" means "Shoot but not kill".

Thanks.

And we killed Izzy Yamamoto...

- - -

[nc #34] Please show where AUMF pertains to anything other than military force in combat? How do you translate it to non-military force engaged in assassination?

Do you really find the status of American/Yemini citizen Al-Aulaqi comparable to that of Admiral (Japanese Naval General) Yamamoto?

- - -

[war #37] Please cite your authority for claiming that a) the resolution requires that all military actions be "combat" when the resolution clearly states "all necessary and appropriate force" and that command and control structures and personnel would be immune from any type of military strike or that b) a drone attack is not "military force"?

And please don't cite wikipedia as being some sort of authority.

Thanks.

Permit me to give a fuller exploration of your Izzy Yamamoto remark with a quote from competent legal authority.

See Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Second Edition, Cambridge University Press, 2010, pp. 103-104.

To give a more pointed edge to the legal position, it may be useful to compare two prominent instances of targeting enemy individuals in the course of World War II. In 1943, the US targeted the Commander-in-Chief of the Japanese Fleet, Admiral Yamamoto, whose plane was ambushed (subsequent to the successful breaking of the Japanese communication codes) and shot down over Bougainville.635 This was a faultless targeted killing. In contrast, the ambush of the car of SS General Heydrich in 1942 amounted to an exercise in unlawful combatancy. Heydrich — as a military officer — was a lawful target, just like Yamamoto. Still, the act constituted unlawful combatancy, since Heydrich was killed by members of the Free Czechoslovak army (parachuted from London) who were not wearing uniforms (see supra 99)636

As for your CIA led drone strike, see Vincent-Joël Proulx, If the Hat Fits Wear It, If the Turban Fits, Run for your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists, Hastings Law Journal, Volume 56, 2004-2005, page 888, discussing the targeted killing, by drone strike, of Mullah Mohammed Omar.

Moreover, the fact that CIA operatives are most likely to coordinate targeted killings using the drone is also problematic. Since these operatives themselves do not conform to the laws of war, by failing to wear distinctive insignia and by not carrying arms openly, they may be subject to prosecution for war crimes.

In this case it is much more than likely that CIA operatives coordinated the targeted killings. Such has been stated to be the fact.

nolu chan  posted on  2011-10-11 18:59:23 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 37.

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