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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: 120268
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).
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#4. To: Sebastian (#0)
(Edited)
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.
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/
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?
[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. 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: el-Shifa OPINION of the Court at 27: 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. - - - - - - Military Commissions Act of 2006, S3930 - - - Authorization for Use of Military Force (AUMF), 115 Stat 224; PL 107-40; SJ Res 18sep2001 - - - - - - The WAR POWERS Resolution of 1973 - Text and Records From Congress - - - Page 14, paragraph 2.11: - - -
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.
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?
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 #33] 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. Of course, nobody asserted that "the B/R [is] effective in restrainiing all acts and orders of the executive in his role as CIC." The 5th Amendment has no applicability to killing in accordance with the laws of war. If I am wearing my DoD warsuit and kill a uniformed enemy on the field of battle during a declared war, it is a lawful act according to the laws of war. Killing of American civilians, not on a battlefield, not engaged in combat, not charged with any crime, by non-military CIA, in the complete absence of due process, is a different matter. The President is the Commander-in-Chief of the Armed Forces. He is not the commander-in-chief of anything else. The Congress did when in its 9/18/01 resolution it authorized force against AQ. On the juducial branch ruling on it we agree. I'm not the one who will be disappointed were it to be so adjudicated. This is an incorrect assumption. The U.S. Courts have repeatedly ruled that it is a political question that has not been decided. If your interpretation were judicially accepted, the Courts would have had subject matter jurisdiction to rule. I believe it will not be adjudicated while it is a real and present issue. When it is no longer the same real and present issue, the court may rule. At such time, a judicial ruling would find the action to be unlawful. Basically, the judiciary has somewhat of a history of tolerating or finding ways not to comdemn some Executive Department action during some claimed time of necessity, and then properly opining later that it was unlawful. This may be in recognition of the established fact that if it rules against the Executive, and the President decides to flip them off as Lincoln did in the Merryman case, there is not much the judiciary can do but take note of it and bide its time. After the Civil War came the case of Ex parte Milligan which spoke directly to the issue of the so-called Law of Necessity which was invoked repeatedly during the war. THE LAW OF NECESSITY The alleged "LAW OF NECESSITY" as addressed by the Supreme Court in 1866: United States Supreme Court, Ex parte Milligan, 71 US 2 (1866), pages 118-127: "that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived And the sixth guarantees the right of trial by jury, in such manner and with such regulations that, with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished. It is in these words: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence." These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times Have any of the rights guaranteed by the Constitution been violated in the case of Milligan?, and, if so, what are they? Every trial involves the exercise of judicial power, and from what source did the military commission that tried him derive their authority? Certainly no part of judicial power of the country was conferred on them, because the Constitution expressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President, because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws, and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction." But it is said that the jurisdiction is complete under the "laws and usages of war." It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it, because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a state, eminently distinguished for patriotism, by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment, for its records disclose that it was constantly engaged in the trial of similar offences, and was never interrupted in its administration of criminal justice. If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty because he "conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said arrest him, confine him closely, render him powerless to do further mischief, and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended. Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts, and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus. It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service during the late Rebellion required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them, and it is urged that this, in a military sense, constituted them the theater of military operations, and as, in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and, with It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal, and as there could be no wish to convict except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law. It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be "mere lawless violence." Regarding the Japanese relocation program, the Court held that in order to prevent espionage and sabotage, the authorities could restrict movement by curfew order,1 or by regulation excluding them from defined areas,2 but a citizen of Japanese ancestry whose loyalty was conceded could not be detained in a relocation camp.3 1. Hirabayashi v. United States, 320 U.S. 81 (1943). Were a president to determine that such a class of people were to be placed on a kill list and exterminated, it would clearly be a war crime. At what point does a kill list and the resulting kills become a war crime? After the fact, the detention of loyal citizens of Japanese ethnicity is considered shameful. Not to belabor the obvious, but we did not also detain loyal citizens of German or Italian ethnicity. Detention or restriction of resident aliens, still citizens of Germany or Italy, did take place but teir status was quite different than that of an American citizen. They were citizens of a foreign power with whom we were at war.
The Resolution does not limit the use of force to that which can only be undertaken by the military. If you believe that it does please cite the appropriate section of the resolution which so limits the use of force to that initiated by the military.
Have you looked at the title recently? Authorization for the Use of Military Force. Or try the first line of the Joint Resolution: "To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States." You want to cherry pick phrases and forget the rest of the resolution.
Since when does the title of the resolution have the force of law? How convenient of you to cite the title but not the preamable: Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States... Emphasis mine... What is that Constituional authority that permits the POTUS to act "offshore"? Why did the general provision of the resolution not so constrain the POTUS to military means only?
In 1801, President Jefferson denied the authority of himself, as president, to take offensive action without the sanction of Congress. On September 20, 2001, President G.W. Bush said to the nation before a joint session of Congress, "we will meet violence with patient justice." Senator Byrd stated in the Senate on October 1, 2001, "First, the use of force authority granted to the President extends only to the perpetrators of the September 11 attack. It was not the intent of Congress to give the President unbridled authority—I hope it wasn’t—to wage war against terrorism writ large without the advice and consent of Congress. That intent was made clear when Senators modified the text of the resolution proposed by the White House to limit the grant of authority to the September 11 attack." Senator Byrd, on October 20, 2001, read the White House proposed draft of the AUMF nto the record and pointed out how the Senate had rejected that open-ended language and deliberately changed it and narrowed it. Sen. Byrd explained, "the use of force authority granted to the President extends only to the perpetrators of the September 11 attack. It was not the intent of Congress to give the President unbridled authority—I hope it wasn’t—to wage war against terrorism writ large without the advice and consent of Congress. That intent was made clear when Senators modified the text of the resolution proposed by the White House to limit the grant of authority to the September 11 attack." Senators Warner and Wellstone thanked Sen. Byrd for placing the White House proposed legislation directly into the Congressional Record. Senator Warner commented, "The final resolution we adopted provided that the authority granted to the President is to respond to the attack of September 11—not to some unspecified future attacks but to that particular attack of September 11." Senator Wellstone commented, "I thought it was too broad, too open ended. I think Senator LEVIN did say this, but while you were busy on that appropriations bill, Senator LEVIN was one of the key Senators—along with staff—who really did yeomen’s work to try to have that resolution focus on the September 11 attacks. It was entirely different wording." In 2002, President George W. Bush sought authorization to use military force against Iraq. The resulting joint resolution contained the following: Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of American citizens; And the Congressional Record for October 9, 2002 shows: Of course, if the AUMF of 2001 actually was an open-ended grant of power as some claim, then there would have been no need for President Bush to seek any resolution to invade Iraq, nor for Congress to debate it at great length. In a letter of August 7, 2002 in response to an inquiry by Sen. Byrd, William Van Alstyne of Duke University School of Law rendered his opinion: In a letter of July 31, 2002 in response to an inquire by Sen. Byrd, Laurance H. Tribe of Harvard University Law School rendered his opinion: Excerpts from the Congressional Record re Authorization to Use of Military Force - - - - - Cong-Rec H5632-5633, 09-14-2001, DeFazio, AUMF in Response to Terrorist Attacks Congressional Record, H5632-33, 14 Sep 2011, Authorizing Use of Military Force in Response to Terrorist Attacks, Rep. DeFazio. He told Congress that he was ‘‘unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.’’ It further noted that it was up to Congress to authorize ‘‘measures of offense also.’’ I believe maintaining this solemn congressional prerogative to send our young men and women into battle is critical to protecting the delicate balance of power between the legislative and executive branches. This balance of power was carefully crafted by our founders in Philadelphia more than 2 centuries ago and has allowed the United States to remain one of the most stable and enduring democracies in the world. There was a time when such a power was threatened. Congress enacted the War Powers Resolution of 1973 in response to the military activities of successive Presidents while waging war in rescuing victims, my heart and my soul soar like an eagle, knowing that this country’s promise is yet ahead; and yet the dark days are still engulfing our memories. - - - - - Cong Rec H5859-H5862, Pres George W Bush, Address to Nation, 09-20-2001 Congressional Record, H5861-62, 20 Sep 2011, Authorizing Use of Military Force in Response to Terrorist Attacks, Address to The Nation by the President of the United States, President George W. Bush. - - - - - Cong Rec S9948-S9954, 10-01-2001, Use of Force Authority by the President Congressional Record, S9949, 20Sep 2001, Authorizing Use of Military Force in Response to Terrorist Attacks, Sen. Byrd. I was reassured by the President’s remarks. But as I delved more deeply into the resolution passed by Congress, I began to have some qualms over how broad a grant of authority Congress gave him in our rush to act quickly. Because of the speed with which it was passed, there was little discussion establishing a foundation for the resolution. Because of the paucity of debate, it would be difficult to glean from the record the specific intent of Congress in approving S.J. Res. 23. There were after-the-fact statements made in the Senate, and there was some debate in the House, but there was not the normal level of discussion or the normal level of analysis of the language prior to the vote that we have come to expect in the Senate. And so I think it is important to take a second look at S.J. Res. 23, to examine its strengths and weaknesses, and to put on record the intent of Congress in passing the resolution. I am not sure we are doing that. Just as this is my speech, just as it is one Senator’s observations, those observations might have been worth a little more had we made them before we passed that resolution in such a great hurry. Two aspects of the resolution are key: First, the use of force authority granted to the President extends only to the perpetrators of the September 11 attack. It was not the intent of Congress to give the President unbridled authority—I hope it wasn’t—to wage war against terrorism writ large without the advice and consent of Congress. That intent was made clear when Senators modified the text of the resolution proposed by the White House to limit the grant of authority to the September 11 attack. Let me at this point read into the RECORD the original text of proposed joint resolution submitted to the Senate leadership by the White House on September 12 this year of our Lord, 2001. [...] And here is the resolving clause that was in the proposed legislation submitted by the White House to the Senate leadership— [...] The resolution as passed by the Senate on September 14 is as follows: [...] This joint resolution may be cited as the ‘‘Authorization for Use of Military Force’’. Sec. 2. Authorization for Use of United States Armed Forces. (a) 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. - - - - - Cong Rec S9948-S9954, 10-01-2001, Use of Force Authority by the President Congressional Record, S9951, 20 Sep 2011, Authorizing Use of Military Force in Response to Terrorist Attacks, Sen. Warner. The resolution we adopted, as the Senator from West Virginia said, is much narrower in terms of its authority. The draft we began with, that the White House submitted to us, had unprecedented broad authority, far too broad for most of us. It was unlimited by time and by other limits, as to what the President could do in response to these attacks. The final resolution we adopted provided that the authority granted to the President is to respond to the attack of September 11—not to some unspecified future attacks but to that particular attack of September 11, and also, as the Senator from West Virginia said, made specific reference and inclusion by reference to the provisions of the War Powers Act. Those and other changes in the language of the resolution were significant. Our good friend from West Virginia pointed out that there was much greater care and caution—to use his words—in the final resolution we adopted. I hope history proves that those of us who worked so hard on that final resolution indeed used enough care and caution to satisfy the requirements of the Constitution and just good common sense. But history will judge that one—and I hope will judge it well—because the differences between the original draft resolution submitted to us and the one we adopted are indeed significant changes, major changes. - - - - - Cong Rec S9948-S9954, 10-01-2001, Use of Force Authority by the President Congressional Record, S9954, 20 Sep 2011, Thanking Senator Byrd, Sen. Wellstone. I say to my colleague that up until about 1 o’clock in the morning, I did not think I could support it. I thought it was too broad, too open ended. I think Senator LEVIN did say this, but while you were busy on that appropriations bill, Senator LEVIN was one of the key Senators—along with staff—who really did yeomen’s work to try to have that resolution focus on the September 11 attacks. It was entirely different wording. But I thank you, Senator BYRD, for what you have done today in this Senate Chamber. - - - - - Cong Rec H7189-H7247, 10-08-2002, AUMF Against Iraq Resolution of 2002 Congressional Record, H7189, 10-08-2002, Authorization for Use of Military Force Against Iraq Resolution of 2002, The Speaker. [...] Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq; Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of American citizens; - - - - - Cong Rec, H7706-H7735, 10-09-2002, AUMFAgainst Iraq Resolution of 2002 Congressional Record, H7706, 10-09-2002, Authorization for Use of Military Force Against Iraq Resolution of 2002, Rep. Becerra. - - - - - Cong Rec S10642-S10645, 10-17-2002, Presidential Ability to Launch an Attack Congressional Record, S10642, 10-17-2002, Presidential Ability to Launch an Attack, Sen. Byrd (quoting a letter from William Van Alstyne). DUKE UNIVERSITY, Senator ROBERT C. BYRD, DEAR SENATOR BYRD: I am writing in response to your letter of July 22 inquiring whether in my opinion, ‘‘the Bush Administration currently has authority, consistent with the U.S. Constitution and the War Powers Resolution, to introduce U.S. Armed Forces into imminent or actual hostilities in Iraq for the purpose of removing Saddam Hussein from Power.’’ You raise the question because, as you say, in your letter, you are ‘‘deeply concerned about comments by the Bush Administration and recent press reports that our nation is coming closer to war with Iraq.’’ I was away from my office at Duke University During the week when your inquiry arrived. Because you understandably asked for a very prompt response, I am foregoing a fuller, more detailed, statement to you just now, the day just following my reading of your letter, on August 6. I shall, however, be pleased to furnish that more elaborate statement on request. Briefly, these are my views: A. The President may not engage our armed forces in ‘‘war with Iraq,’’ except in such measure as Congress, by joint or concurrent resolutions duly passed in both Houses of Congress, declares shall be undertaken by the President as Commander in Chief of the Armed Forces. As Commander in Chief, i.e., in fulfilling that role, the President is solely responsible for the conduct of whatever measures of war Congress shall authorize. It is not for the President, however, to presume to ‘‘authorize himself’’ to embark on war. Whether the President deems it essential to the National interest to use the armed forces of the United States to make war against one of our neighbors, or to make war against nations yet more distant from our shores, it is all the same. The Constitution requires that he not presumed to do so merely on his own assessment and unilateral order. Rather, any armed invasions of or actual attack on another nation by the armed forces of the United States as an act of war requires decision by Congress before it proceeds, not after the President would presume to engage in war (and, having unilaterally commenced hostilities, then would merely confront Congress with a ‘‘take-it-or-leave it’’ fait accomplis). The framers of the Constitution understood the difference vividly— and made provision against vesting any warinitiating power in the Executive.1 [...] 1 It is today, even as it was when Thomas Jefferson wrote to James Madison from Paris, in September, 1789, referring then to the constitutional clauses putting the responsibility and power to embark on war in Congress rather than in the Executive. And thus Jefferson observed: ‘‘We have given, in example, one effectual check to the dog of war, by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.’’ C. Warren, The Making of the Constitution 481 n. 1 (1928). (See also Chief Justice Johnson Marshall’s Opinion for the Supreme Court in Talbot v. Seeman, 5 U.S. (1 Cranch) 1,28 (1803) (‘‘The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides.’’) Cong Rec S10642-S10645, 10-17-2002, Presidential Ability to Launch an Attack Congressional Record, S10644, 10-17-2002, Presidential Ability to Launch an Attack, Sen. Byrd (quoting a letter from Laurence H. Tribe). HON. ROBERT C. BYRD [...] My study of the United States Constitution and its history, as a scholar and teacher of American constitutional law over the past thirty years, has suggested to me no authority for the President, acting as the Commander in Chief, to wage a purely preemptive war against another nation without at least consulting with Congress first, and without obtaining from Congress a formal authorization, whether in the form of a declaration of war or, at the least, a joint resolution expressing the assent of both the House and the Senate—with the exception of so exigent an emergency as to admit of no time for such consultation and authorization without mortal and imminent peril to our nation. [...] As many have famously observed, our Constitution is not a suicide pact. But that exception for cases of self-defense cannot be treated so elastically that the exception threatens to swallow the rule. [...] That said, it remains my view, as I wrote in volume one of the 2000 edition of my treatise, ‘‘American Constitutional Law,’’ § 4–6, at page 665, ‘‘although the Constitution does not explicitly say that the President cannot initiate hostilities without first consulting with and gaining the authentic approval of Congress, that conclusion flows naturally, if not quite inescapably, from the array of congressional powers over military affairs and especially the provisions in Article I, § 8, clause 11, vesting in Congress the power to declare war. To permit the President unilaterally to commit the Nation to war would read out of the Constitution the clause granting to the Congress, and to it alone, the authority ‘to declare war.’ ’’ (Footnotes omitted.) Whether with the aid of the War Powers Resolution of 1973—a resolution that some have regarded as a quasi-constitutional articulation of the boundaries between the Presidency and the Congress—or without regard to that much mooted (and arguably question-begging) assertion of congressional power to draw those boundary lines for itself—one would be hard-pressed to defend the proposition that, simply because the President thinks it inconvenient to bring Congress into his deliberations and to await Congress’s assent, he may suddenly proceed, like the kings and emperors of old, unilaterally to unleash the dogs of war. [...] It seems quite clear that S.J. Res. 23 (Pub. L. No. 107–40), the joint resolution authorizing the use of U.S. military force against those responsible for the attacks of September 11, 2001, would not furnish the requisite congressional assent to any such strike against Iraq, or even to the introduction of U.S. armed forces into imminent or actual military hostilities in Iraq for the purpose of removing Saddam Hussein from power. Unless convincing evidence of Iraq’s involvement in the terrorist attacks of September 11 were to emerge, that joint resolution could not be said to offer even a fig leaf of cover for such a military campaign. To its credit, the Bush Administration does not appear to have suggested the contrary. Cong-Rec H5632-5633, 09-14-2001, DeFazio, AUMF in Response to Terrorist Attacks Cong Rec H5859-H5862, Pres George W Bush, Address to Nation, 09-20-2001 Cong Rec H7189-H7247, 10-08-2002, AUMF Against Iraq Resolution of 2002 Cong Rec H7268-H7301, 10-08-2002, AUMF Against Iraq Resolution of 2002 Cong Rec, H7706-H7735, 10-09-2002, AUMFAgainst Iraq Resolution of 2002 Cong Rec H7739-H7799, 10-10-2002, AUMF Against Iraq Resolution of 2002 Cong Rec S9948-S9954, 10-01-2001, Use of Force Authority by the President Cong Rec S10063-S1007, 10-08-2002, Presidential Ability to Launch an Attack Cong Rec S10164-S10217, 10-10-2002, AUMF Against Iraq Resolution of 2002 Cong Rec S10233-S10342, 10-10-2002, AUMF Against Iraq Resolution of 2002 Cong Rec S10642-S10645, 10-17-2002, Presidential Ability to Launch an Attack
I didn't need the history lesson. Post 53 asked you several questions, not one of which you answered in your history lesson. Here they are again: Since when does the title of the resolution have the force of law? How convenient of you to cite the title but not the preamable: Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States... Emphasis mine... What is that Constituional authority that permits the POTUS to act "offshore"? Why did the general provision of the resolution not so constrain the POTUS to military means only?
You obviously did need the history lesson and an update of your short term memory loss. Your untenable position, which my history lesson just viscerated, is that the AUMF of 2001 authorized the action in Yemen of CIA and military in killing American citizen al-Aulaqi. No Authorization for the Use of Military Force authorizes the non-military CIA to do anything. The authorization to do stuff does not come from any military authorization. The AUMF of 2001 was deliberately narrowed from the White House proposed language so that it only pertained to the events in 2001. Here they are again: Since when does the title of the resolution have the force of law? Did you not read the resolution text? The heading of Section 2 is in bold faced caps in the original. And Section 2(b): (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. (2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing in this resolution supercedes any requirement of the War Powers Resolution. Section 5(b) of the War Powers Resolution: The War Powers Resolution is about the use of the United States Armed Forces. Section 8(a) of the War Powers 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— (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. As the history lesson from the Congressional Record showed, Let me at this point read into the RECORD the original text of proposed joint resolution submitted to the Senate leadership by the White House on September 12 this year of our Lord, 2001. Cong Rec S9951, Sen. Warner: The final resolution we adopted provided that the authority granted to the President is to respond to the attack of September 11—not to some unspecified future attacks but to that particular attack of September 11, and also, as the Senator from West Virginia said, made specific reference and inclusion by reference to the provisions of the War Powers Act. S9954, Sen Wellstone: S10642, Byrd quoting letter of William Van Alstyne, Duke University, School of Law: DUKE UNIVERSITY, SCHOOL OF LAW, Durham, NC., August 7, 2002. Senator ROBERT C. BYRD, Chairman, U.S. Senate Committee on Appropriations, Washington, DC DEAR SENATOR BYRD: I am writing in response to your letter of July 22 inquiring whether in my opinion, ‘‘the Bush Administration currently has authority, consistent with the U.S. Constitution and the War Powers Resolution, to introduce U.S. Armed Forces into imminent or actual hostilities in Iraq for the purpose of removing Saddam Hussein from Power.’’ You raise the question because, as you say, in your letter, you are ‘‘deeply concerned about comments by the Bush Administration and recent press reports that our nation is coming closer to war with Iraq.’’ I was away from my office at Duke University During the week when your inquiry arrived. Because you understandably asked for a very prompt response, I am foregoing a fuller, more detailed, statement to you just now, the day just following my reading of your letter, on August 6. I shall, however, be pleased to furnish that more elaborate statement on request. Briefly, these are my views: A. The President may not engage our armed forces in ‘‘war with Iraq,’’ except in such measure as Congress, by joint or concurrent resolutions duly passed in both Houses of Congress, declares shall be undertaken by the President as Commander in Chief of the Armed Forces. As Commander in Chief, i.e., in fulfilling that role, the President is solely responsible for the conduct of whatever measures of war Congress shall authorize. It is not for the President, however, to presume to ‘‘authorize himself’’ to embark on war. Whether the President deems it essential to the National interest to use the armed forces of the United States to make war against one of our neighbors, or to make war against nations yet more distant from our shores, it is all the same. The Constitution requires that he not presumed to do so merely on his own assessment and unilateral order. Rather, any armed invasions of or actual attack on another nation by the armed forces of the United States as an act of war requires decision by Congress before it proceeds, not after the President would presume to engage in war (and, having unilaterally commenced hostilities, then would merely confront Congress with a ‘‘take-it-or-leave it’’ fait accomplis). The framers of the Constitution understood the difference vividly— and made provision against vesting any warinitiating power in the Executive. [1] [...] [1] It is today, even as it was when Thomas Jefferson wrote to James Madison from Paris, in September, 1789, referring then to the constitutional clauses putting the responsibility and power to embark on war in Congress rather than in the Executive. And thus Jefferson observed: ‘‘We have given, in example, one effectual check to the dog of war, by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.’’ C. Warren, The Making of the Constitution 481 n. 1 (1928). (See also Chief Justice Johnson Marshall’s Opinion for the Supreme Court in Talbot v. Seeman, 5 U.S. (1 Cranch) 1,28 (1803) (‘‘The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides.’’) S10644, Byrd quoting ltr of Laurence H. Tribe, Harvard University, Law School: HARVARD UNIVERSITY, LAW SCHOOL, Cambridge, MA, July 31, 2002 HON. ROBERT C. BYRD [...] It seems quite clear that S.J. Res. 23 (Pub. L. No. 107–40), the joint resolution authorizing the use of U.S. military force against those responsible for the attacks of September 11, 2001, would not furnish the requisite congressional assent to any such strike against Iraq, or even to the introduction of U.S. armed forces into imminent or actual military hostilities in Iraq for the purpose of removing Saddam Hussein from power. Unless convincing evidence of Iraq’s involvement in the terrorist attacks of September 11 were to emerge, that joint resolution could not be said to offer even a fig leaf of cover for such a military campaign. To its credit, the Bush Administration does not appear to have suggested the contrary. Harumph is not an effective rebuttal. Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States... As for your nonsense expansion of the AUMF of 2001 to authorize unrelated attacks in Yemen in 2011, it is clear that it would not even authorize attacks on Saddam Hussein in 2002. It would not even offer a fig leaf of cover for military action. If you are to find authority for the action in Yemen, it cannot be found in the AUMF of 2001. "Whereas..." whatever is not a grant of authority to do anything. At S99489, Senator Byrd identified the resolving part. That ain't it. I provided the entire resolution in a scribd reader. As scrolling proved too great an impediment, I provided the entire resolution as an image. I will do it again. For the action in Yemen, not the AUMF of 2001. As that is your claim, and it has failed badly, your attempt to divert from your claim is your to answer with your next attempt to find a viable justification for the 2011 action in Yemen. It was a purposely limited authorization to use military force. The president is not constrained from using non-military assets. An AUMF is irrelevant to the authorization to use, or refrain from using, those assets. Non-military forces are not the subject of an AUMF. The CIA is not a military force. To put you back on topic, your untenable position is that the AUMF of 2001 authorized the action in Yemen of CIA and military in killing American citizen al-Aulaqi. That's dead. The Congressional Record verifies it is an impossible stretch. The WPA bars such a stretch. The legal experts say it is wrong. And the GWB administration, in 2002, alleged a direct link between Saddam and al Qaeda, and still sought another AUMF to go into Iraq, demonstrating that such an interpretation was wrong. This is the nonsense your are defending: (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. That was just skewered by a history lesson which your are attempting to ignore.
That was just skewered by a history lesson which your [sic] are attempting to ignore. I can cite "speeches" from the floor of the Senate made in the late 19th century in which the OPINION of a particular Senator, voting in the affirmative, stated that the 14th amendment did not convey birthright citizenship. You and I both **know** that it does in fact so convey. So, as I stated, I don't need the history lesson. What I do need is for you to offer a concise argument that your very narrow interpretation of the AUMF against Al Qaeda is the correct one. Thanks.
I need only show that your interpretation is legally impossible. Your interpretation, inferring in what Congress deliberately removed from the White House draft, is directly contrary to the War Powers Act, Section 8(a). AUMF of 2001, Section 2(b): (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. (2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing in this resolution supercedes any requirement of the War Powers Resolution. War Powers Resolution, Section 8(a): 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— (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.
#93. To: nolu chan (#77)
Apparently, you need to lay off of the 'shrooms. I challenge you to post the statement in which I claimed that Congress RATIFIES amendments. Apparently, you also need a lesson in HOW the USCON is amended. There are two ways, one is a Constitutional convention of the States; the other is that the CONGRESS may PROPOSE amendments to the USCON and submit them to the States for ratificaton by their legislatures. This can me found in the Fifth Article opf the USCON which states, in part: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution... The 14th amendment passed out of the Congress in June of 1866...
Top • Page Up • Full Thread • Page Down • Bottom/LatestPresident Obama does not have the authority to kill an American without due process of law.
#5. To: jwpegler (#4)
It's called first degree murder.
#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.
#22. To: nolu chan (#9)
Can you please identify the U.S. law to which you refer?
#24. To: Sebastian, go65 (#22)
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.
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).
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.
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.
#29. To: nolu chan (#24)
#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.
#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."
#35. To: war (#33)
[nc #32] 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.
No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole
people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares
of life, liberty, or property without due process of law."
and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.
connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior.
have differed on the correct interpretation to be given to various provisions of the Federal Constitution, and judicial decision has been often invoked to settle their true meaning; but, until recently, no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed, but if ideas can be expressed in words and language has any meaning, this right -- one of the most valuable in a free country -- is preserved to everyone accused of crime who is not attached to the army or navy or militia in actual service. The sixth amendment affirms that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury," language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment or presentment before anyone can be held to answer for high crimes, "excepts cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger," and the framers of the Constitution doubtless meant to limit the right of trial by jury in the sixth amendment to those persons who were subject to indictment or presentment in the fifth.
there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion -- if the passions of men are aroused and the restraints of law weakened, if not disregarded -- these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.
together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish.
in answer to a writ of habeas corpus. The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.
it, all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.
2. Korematsu v. United States, 323 U.S. 214 (1944).
3. Ex parte Endo, 323 U.S. 283 (1944).
#38. To: nolu chan (#35)
The 5th Amendment has no applicability to killing in accordance with the laws of war. If I am wearing my DoD warsuit and kill a uniformed enemy on the field of battle during a declared war, it is a lawful act according to the laws of war. Killing of American civilians, not on a battlefield, not engaged in combat, not charged with any crime, by non-military CIA, in the complete absence of due process, is a different matter.
#47. To: war (#38)
The Resolution does not limit the use of force to that which can only be undertaken by the military. If you believe that it does please cite the appropriate section of the resolution which so limits the use of force to that initiated by the military.
#53. To: nolu chan (#47)
Have you looked at the title recently? Authorization for the Use of Military Force.
#69. To: war, A K A Stone, Liberator (#53)
What is that Constituional authority that permits the POTUS to act "offshore"? Why did the general provision of the resolution not so constrain the POTUS to military means only?
Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;
Just this Tuesday, CIA director George Tenet told Congress that Saddam Hussein, if provoked by fears that an attack by the United States was imminent, might help Islamic extremists launch an attack on the United States with weapons of mass destruction.
A. The President may not engage our armed forces in ‘‘war with Iraq,’’ except in such measure as Congress, by joint or concurrent resolutions duly passed in both Houses of Congress, declares shall be undertaken by the President as Commander in Chief of the Armed Forces. As Commander in Chief, i.e., in fulfilling that role, the President is solely responsible for the conduct of whatever measures of war Congress shall authorize. It is not for the President, however, to presume to ‘‘authorize himself’’ to embark on war.
It seems quite clear that S.J. Res. 23 (Pub. L. No. 107–40), the joint resolution authorizing the use of U.S. military force against those responsible for the attacks of September 11, 2001, would not furnish the requisite congressional assent to any such strike against Iraq, or even to the introduction of U.S. armed forces into imminent or actual military hostilities in Iraq for the purpose of removing Saddam Hussein from power. Unless convincing evidence of Iraq’s involvement in the terrorist attacks of September 11 were to emerge, that joint resolution could not be said to offer even a fig leaf of cover for such a military campaign. To its credit, the Bush Administration does not appear to have suggested the contrary.
In 1801, President Thomas Jefferson sent a small squadron of frigates to the Mediterranean to protect against possible attacks by the Barbary pirates.
Fellow citizens, we will meet violence with patient justice assured of the rightness of our cause, and confident of the victories to come. In all that lies before us, may God grant us wisdom, and may He watch over the United States of America.
I supported the resolution granting the President the authority to use military force against the perpetrators of this terrible attack, and I applauded his address to Congress and to the Nation. I note that the President wisely drew lines of discrimination, specifying that the punishment must be directed against those who are guilty of this crime, so that we cannot be accused of broadening our response to those who were not involved in the September 11 attack. Our resolve and our ferocity of response must carefully discriminate against the guilty, and surely if we do so, all men of reason, all nations of conscience, will support and applaud us.
That the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, harbored, committed, or aided in the planning or commission of the attacks against the United States that occurred on September 11, 2001, and to deter and pre-empt any future acts of terrorism or aggression against the United States.
Section 1. Short Title.
First, on the second action we took, giving the President authority to respond to the attacks of September 11, the Senator did us a great service by laying out the version of that resolution with which we started and the version with which we ended. I made the same effort that day we voted on it, but I do not believe I actually put the drafts in the RECORD. I made reference to them, but I think that perhaps this is the first time the actual draft we began with is in the CONGRESSIONAL RECORD. I think that is a very important service.
Mr. WELLSTONE. Mr. President, before Senator BYRD leaves the Chamber, I also want to thank him for his service to the Senate and the country. I am annoyed with myself for not having thought that we should have as a part of the RECORD the difference between the language that came from the White House and the resolution that we passed. It is so important that that be part of the RECORD.
The text of House Joint Resolution is as follows:
Just this Tuesday, CIA director George Tenet told Congress that Saddam Hussein, if provoked by fears that an attack by the United States was imminent, might help Islamic extremists launch an attack on the United States with weapons of mass destruction.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
SCHOOL OF LAW,
Durham, NC., August 7, 2002.
Chairman, U.S. Senate
Committee on Appropriations,
Washington, DC HARVARD UNIVERSITY,
LAW SCHOOL,
Cambridge, MA, July 31, 2002.
U.S. Senate, Washington, DC.
#70. To: nolu chan (#69)
(Edited)
#72. To: war (#70)
I didn't need the history lesson.
Post 53 asked you several questions, not one of which you answered in your history lesson.
(b) WAR POWERS RESOLUTION REQUIREMENTS.—
(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 declared 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.
INTERPRETATION OF JOINT RESOLUTION
(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
Two aspects of the resolution are key: First, the use of force authority granted to the President extends only to the perpetrators of the September 11 attack. It was not the intent of Congress to give the President unbridled authority—I hope it wasn’t—to wage war against terrorism writ large without the advice and consent of Congress. That intent was made clear when Senators modified the text of the resolution proposed by the White House to limit the grant of authority to the September 11 attack.
The resolution we adopted, as the Senator from West Virginia said, is much narrower in terms of its authority. The draft we began with, that the White House submitted to us, had unprecedented broad authority, far too broad for most of us. It was unlimited by time and by other limits, as to what the President could do in response to these attacks.
I say to my colleague that up until about 1 o’clock in the morning, I did not think I could support it. I thought it was too broad, too open ended. I think Senator LEVIN did say this, but while you were busy on that appropriations bill, Senator LEVIN was one of the key Senators—along with staff—who really did yeomen’s work to try to have that resolution focus on the September 11 attacks. It was entirely different wording.
Just this Tuesday, CIA director George Tenet told Congress that Saddam Hussein, if provoked by fears that an attack by the United States was imminent, might help Islamic extremists launch an attack on the United States with weapons of mass destruction.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
U.S. Senate, Washington, DC. How convenient of you to cite the title but not the preamable:
What is that Constituional authority that permits the POTUS to act "offshore"?
Why did the general provision of the resolution not so constrain the POTUS to military means only?
#29. To: nolu chan (#24)
#73. To: nolu chan (#72)
Your untenable position, which my history lesson just viscerated, is that the AUMF of 2001 authorized the action in Yemen of CIA and military in killing American citizen al-Aulaqi.
#77. To: war (#73)
So, as I stated, I don't need the history lesson. What I do need is for you to offer a concise argument that your very narrow interpretation of the AUMF against Al Qaeda is the correct one.
(b) WAR POWERS RESOLUTION REQUIREMENTS.—
INTERPRETATION OF JOINT RESOLUTION
(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
Replies to Comment # 77. Apparently you need another history and law lesson. Congresscritters pass laws. They do not ratify amendments to the Constitution.
End Trace Mode for Comment # 77.
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