Printable View
to me it comes down to this: if you do not trust your government to do this kind of decision, then you should not trust your government to run a war.
and you should use your time to stop said war instead of bemoaning every little incident along the way that constitutes that war.
A war is by it's very definition an abandonment of normal "polite" society rules......to expect that every decision along it's course will follow said rules seems bizarre to me to say the least.
I understand, yet I do believe finding these issues to be "grey" signals a certain innocent uprightness when separating the notions in question :book2:Quote:
I suspect the real issue here is not about a constitution or not but about the law. As I said in the OBL case, there's a sliding scale between say the UK bombing a Luftwaffe HQ in 1941 and the police assassinating a suspect in their own country. Neither pole of the spectrum poses particular legal challenges: the former is lawful, the latter not. But then we have cases like OBL and Al-Awlaki that fall somewhere imbetween those two poles on the spectrum of lethal use of state force. My moral intuition is that they are closer to Luftwaffe HQ in 1941 than the police abuse case, but others believe the opposite. That's a fair enough. But I am just not convinced that legal frameworks are sufficiently clear on this grey area to be the main consideration. I would rather rely on ethical and practical issues to decide the debate, giving time for the lawyers to catch up, than make the argument a legalistic/constitutional one. But I admit the legal/constitutional issues are interesting and do need to be debated.
Constitution:
The Constitution is the law and the law in this case is clear. The legal punishment for incitement to violence is not death. The chap ought to have been brought to justice.Quote:
the fundamental legal and political principles on which a state is governed, esp. when considered as embodying the rights of the subjects of that state
Intuition:
Conscience:Quote:
direct perception of truth, fact, etc., independent of any reasoning process; immediate apprehension.
Law:Quote:
the inner sense of what is right or wrong in one's conduct or motives, impelling one toward right action: to follow the dictates of conscience.
Please, do not misunderstand me. This case has no stakes for me and I am not a person to put much passion in my convictions, however, intuition and conscience are to be distilled a hundred fold in the public forum before they can be set into law and only then followed, else they are the death of said law. The president of the United States following an intuition under the premise that the law will catch up would mean he is abdicating from his role as a warranter of the Constitution.Quote:
any written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its constitution.
Pursuing the legal aspect a bit more, after I tried to dismiss it, some of Law of Armed Conflict as understood by the US military seems surprisingly well developed:
http://usmilitary.about.com/cs/wars/a/loac_2.htm
Relevant sections appear to be:
To my mind, the issues are (a) was al-Awlaki an unlawful combatant, i.e. directly involved in hostilities? (b) who should determine his status?Quote:
Unlawful Combatants. Unlawful combatants are individuals who directly participate in hostilities without being authorized by governmental authority or under international law to do so. For example, bandits who rob and plunder and civilians who attack a downed airman are unlawful combatants. Unlawful combatants who engage in hostilities violate LOAC and become lawful targets. They may be killed or wounded and, if captured, may be tried as war criminals for their LOAC violations.
Undetermined Status. Should doubt exist as to whether an individual is a lawful combatant, noncombatant, or an unlawful combatant, such person shall be extended the protections of the Geneva Prisoner of War Convention until status is determined. The capturing nation must convene a competent tribunal to determine the detained person’s status.
I've been arguing under the assumption that the answer to (a) is yes; he was actively part of a terrorist organisation - recruiting and planning, even if not wielding an AK-47 in combat. Maybe I am wrong, but nothing I have read so far makes me suspect that.
So the trickier issue seems to be (b): who decides whether he is an unlawful combatant? In a shoot-out, it would be the soldiers on the ground. For an manhunt style operation, a more measured process is possible. In the current case, that seemed to end up with Obama personally sanctioning it. That seems somewhat like overkill, although as I said, I find it rather admirable that the US takes it so seriously as to push it up to such a level. Ultimately, I think it probably should be some intelligence/military decision, subject to political oversight but not full disclosure or "beyond reasonable doubt" type legal burden of proof.
This may be the crux of the issue. I am seeing al-Awlaki, just like OBL, as an unlawful participant in an armed conflict[1]. In an armed conflict, the state is not primarily implementing legal punishments. It is fighting to subdue and defeat the enemy combatants. If a combatant surrenders, then yes, you ought to take them prisoner. But you are under no legal or constitutional obligation to make your servicemen take greater risks with their lives to solicit such surrenders. Chaps shooting at you, launching rockets at you, trying to make your civilian airlines fall from the sky, should not feel aggrieved if you shoot back. It rather sounds like justice to me.Quote:
Originally Posted by Nowake
As I said, I think I am buying into a least part of Bush's "War on Terror" mantra and viewing this in war time terms (combatants in armed conflict). Others are viewing it in peace time terms (suspected lawbreakers). It's an uncomfortable position for a leftie like me, so I am open to attempts at dislodgement.
[1]Maybe I am wrong in that - it seems many people here regard him just as a loud mouth who ranted in mosques and youtube. I believe he was an active member of a terror organisation, involved in many actual and attempted attacks.
But these are like my example, where I said this was at worst the war on terror being run badly and could at worst be criticized on those grounds. The same way you can criticize the war on drugs for targeting marijuana users. But the analogy to this case is the government busting a cocaine dealer overseas and you saying "Where will it end?"Quote:
Originally Posted by a completely inoffensive name
I don't see how you can see at as anything other than a huge positive.Quote:
Same thing I said here, same thing I said in the OBL thread. Is the bloodshed of those we hate worth the downside of the process we now subject ourselves to?
Oh man, I was going to reply to the rest but I'll just stop at this one, there's too many quotes after all. You just said that if we'd killed Bin Laden back in the 90's, preventing 9/11, you would have said that his bloodshed was not worth the "downside of the process" that we subjected ourselves too.
You're trying to talk these downsides up into some giant proportions. You're being too abstract to think about it with any clarity. Try to describe things in realistic terms.
Don't say "safety" instead of "preventing the deaths of thousands of innocent people". Don't say "bloodshed of those we hate" instead of "killing a terrorist leader who caused the deaths of thousands". Don't talk in wild terms about the president being allowed to do anything when what's at stake is a modest expansion of his powers to run a war.
There's a reason these things are done openly and talked about in speeches by the president you know :book2:
Well that was a bit insulting. What did you expect?Quote:
Originally Posted by econ21
I expected the area of law and war to be underdeveloped. Somehow this topic makes me think of Pompey the Great:Quote:
Originally Posted by Vladimir
"Don't quote law. We carry swords!"
While I cannot speak directly in his name of course -- considering the legal confusion over the pond, he expected, with good reason, for a rather feeble set of rules :yes: As an outsider reading up on the controversy, wouldn't you?
Of course, the problem is that the action proceeded in spite of the law, not according to it.
EDIT: bah, that was supposed to go in before your own reply. And it's even witty(er), buggar! :stare:
After looking back on my posts, I see that my terms are not the best or most accurate. I will re-evaluate what I have been saying later tonight, with the terms you are suggesting I use.Quote:
Originally Posted by Sasaki Kojiro
“The imperative is to protect your people against terrorist atrocities; the passport and legal rights of a person who has openly declared jihad on you is not the overriding concern.” Interesting reading…
So when UK was protecting the financial man involved in the attack in France (1995, Network of Khaled Khelkal), France would have been allowed to selective killing in the UK territory, or drone attack?
Well, if the UK was like Yemen and David Cameron was suffering 40 degree burns after a terrorist bombing in London, two armored divisions had mutinied against him and much of the country was in open revolt, hundreds of people were dying every month in armed conflict, the financial man was protected by armed insurgents, France had drones and the UK did not, the financial man had planned to bring down airliners over France (after 3000 people died, when 3 airliners crashed into La Défense and Hotel de Brienne), then absolutely, en avant mes amis!Quote:
Originally Posted by Brenus
In such circumstances, I am sure we would declare it a Yemeni, I mean British operation.
On the other hand, if Britain were not like Yemen, then I would hope my country would assist in bringing the man to justice without the need for an outside military operation. I am sorry if that did not happen.
But I understand you are an ex-soldier, Brenus: how do you think governments should deal with AQ leaders such as OBL and al-Awlaki who take refuge in failed states? Would you send in drones and SEALS or would you wait for a French judge to issue an extradiction request? How do you understand French (or international) law in these kind of circumstances?
[These are genuine questions, not rhetorical.]
well...there is no "allowed"..because there is no authority to decide what is and isn´t allowed.Quote:
Originally Posted by Brenus
you either have the ability and the power to do something like that without being concerned about the consequences or you don´t.
Thought so. I could use a cathartic tirade but I suspect others here wouldn't appreciate it too much. You know that much of our law comes from English law; right?Quote:
Originally Posted by econ21
“well...there is no "allowed"..because there is no authority to decide what is and isn´t allowed.”
Yes there is. It called International Treaties. That is why UK can protest when a Russian is probably poisoned by KGB (under new ID) in London.
“you either have the ability and the power to do something like that without being concerned about the consequences or you don´t.” Well, that is bit tricky. In case of French terrorist protected by UK, the French had the possibility to kill him/them. The French didn’t because UK is a friendly country… Then the limits of the UK policy towards Muslim Extremists/terrorists were exposed then the UK extradited the terrorist(s)… But you are right, of course. Russia doesn’t care of UK opinion, so…
“Somehow this topic makes me think of Pompey the Great: "Don't quote law. We carry swords!" His problems came when Caesar got a bigger sword.
About how would France react in case of terrorism (or even lesser things): We have New Zealanders in this Org who probably remember the Rainbow Warrior? One journalist killed… When Libya was a little bit too much, the French Army launched a raid at Ouaddi Doum (Wadi Dum) and pushed it back. You can find multiple example of this kind of actions…
Now, how I think about terrorism? How to deal with them? No idea, really: Intelligence gathering, infiltration, liquidation when necessary. But it would be better to have the justice at work.
No “friendly” governments harbouring criminals could be a good start…
My problem is not the action, my problem is the moral lecture that we, the West, give to others. If I follow you, nowadays, the Taliban would be legitimated to launch an attack on USA towns. Or the Iraqis… So what about all the South Americans that a lot of them died thanks to the CIA and the “counter-insurgencies” programmes?
The Army can be part of the solution, but not the entire solution. Nor the Politicians are.
The use of violence is legitimated by laws, and has to be questioned by the laws.
International treaties and the UN are good for dealing with "low intensity" issues, or issues where the the "risk vs. reward" analysis doesn´t warrant doing anything too 'forceful' to getting one's way, and risk pissing of even more the other country or the international community at large.Quote:
Originally Posted by Brenus
taking violent and forceful action is something to be done sparingly for obvious reasons, but in limit cases it is the defining factor and not any signed treaty that might exist.
and about that example, the UK played it's part but wasn´t bothered to take it any further, not for the killing of a Russian national, even if in British soil, so I wouldn´t confuse a protest with you know...actually doing something about an issue.
Like I said....how much do you have to worry/care about the reaction of the other side is the main point.Quote:
Originally Posted by Brenus
Vladimir, you can save your tirade: I assure you, you are seeing national insults where none were intended. I was speaking of the sub-discipline of law and war as a universal thing, not the US army's understanding of it. It just happened that googling Pompey's quote led me to the US army's website on the Law of Armed Conflict. I was not aiming at jibe at the military of my country's ally. I don't know how much of what was on that website is international - I rather suspect the whole point of law on war is that is international; one country behaves with restraint because they want other countries to behave with restraint should they enter into conflict with them. That is one reason why I am a little dubious about relying on such law in this kind of case and why 9/11 is so important here. AQ terrorists have shown absolutely no restraint, so there can be no expectation of a quid pro quo.Quote:
Originally Posted by Vladimir
Problem isn't the asymmetric threats doing what they do best. It is the rule set being established with the likes of symmetric threats/equals and how they will justify the use of force.
Looking at th different emerging powers by zone we have China, India and re-emerging Russia. Add in Brazil and Egypt as potential dark horses.
How happy are we going to be when they apply their own twist to the rules?
What happens when a Chinese drone accidentally hits a US embassy?
What happens when India snaps and starts sending in special forces into Pakistan to knock off high value targets? Cashmere sweaters might be nice, Kashmir sweats from nuclear fallout won't be.
What happens if Brazil decides to start destabilizing elected oil rich left wing parties in it's hemisphere of power?
No, I'm seeing personal insults and work can be a little dull. ~;)Quote:
Originally Posted by econ21
I was surprised that someone from a country with no written constitution is surprised that a country that does have one has a litigious society. You should also know how many lawyers we have in this country...but anyway. I supposed I'm the one that's getting nationalistic now.
I don't really know the history of U.S. military legal evolution but suspect it received a jolt when transitioning from prewar isolationism to the postwar, Cold War era. I think you would be correct sixty-some years ago. I doubt out laws developed because we want other countries to show restraint toward us as the possibility of an invasion is remote, but it may have been a factor. We can take a more liberal interpretation on drone strikes because few nations possess the capabilities we do.
It is really funny to read some people's reactions to this. All this outrage over law, rights, and jurisdiction is nice in their safe and secure environments.
Oh boy, I wish I'd care enough to entertain you with personal insults mister "my country has not been invaded once for over one hundred and fifty years now, nevermind militarily occupied and politically & socially oppressed" /hugs :bow:Quote:
It is really funny to read some people's reactions to this. All this outrage over law, rights, and jurisdiction is nice in their safe and secure environments.
I will wish you a time-warp into a safe and secure communist dictatorship like pre-'89 Romania though, your mind would open on these matters like a parachute, instantly and on time :2thumbsup: Well, hopefully, for your sake!
It's more like people complaining how bad their life is when the hot water heater breaks when millions don't have running water. That kind of thing.Quote:
Originally Posted by Nowake
The outrage over the perceived rights of someone who facilitates indiscriminate violence is entertaining.
Awesome writing I like :2thumbsup:Quote:
Originally Posted by Nowake
It's not about the chap personally, for the hundredth time -- six feet under is precisely where one should find him.Quote:
It's more like people complaining how bad their life is when the hot water heater breaks when millions don't have running water. That kind of thing.
The outrage over the perceived rights of someone who facilitates indiscriminate violence is entertaining.
But in the country of legalised lobby and Fox News, not understanding that a legal precendent can be spinned to justify injustice is a pity.
And in the country hosting the headquarters of the U.N., lacking the foresight to perceive the consequences of a precedent consisting in the expedient disposal of your own citizens is alarming.
But then again, it's the country of Ayn Rand, the person who thought human self-interest needed endorsement! So I guess we can close the argument with a friendly It takes all sorts :bow:
Sorry, you just lost me there.Quote:
Originally Posted by Nowake
Is Fox news a cause célèbre in Romania too? I thought we already established that there was nothing expedient about the decision to kill him.
Oh get used to it, everybody knows FOX is evil. Nobody in Europe watches it because they can't recieve it as far as I know, but everybody says it so we say it as well. we think for ourselves FOX can't fool us Euro's and andQuote:
Originally Posted by Vladimir
Still would like to know what you omgosh-crowd presents as an alternative to a big fat explosion as a proper ad hominem. Of course you kill them when you can? Wth is wrong with you people
Well, again, lets agree to disagree, because I also think it was pointed out:
As to the Fox News tidbit, I was simply pointing out that during, lets say, an administration such as your previous one, if you add pressure groups and tools like such a partisan gutter media, the scenario where the government could have a field day making use of such a legal precedent given by their opposition is more than plausible, it's probable.Quote:
The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi, or how they considered any Fifth Amendment right to due process.
Look, the ones arguing against this action in this thread simply ask for a legal framework to be debated and legislated previously, not for people like Awlaki to be allowed to act with impunity. Currently, your legal framework does not allow your government to punish a citizen for incitement to violence with death, that's all.
Indeed. I would like to see the DoJ OLC's opinion for US citizens on the target list made public. The work by the previous administration's lawyers at OLC do not fill me with confidence in their abilities or motives.Quote:
Originally Posted by Nowake
I still want an alternative, if this man commits a terrorist attack somewhere in teh muslimworld AND is an American civilian... good luck fixing that
A little more detail:
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.
There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.
The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process. [...]
Other officials said [...] targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.
The officials insisted on anonymity to discuss sensitive information.
They confirmed that lawyers, including those in the Justice Department, were consulted before Awlaki's name was added to the target list.
Two principal legal theories were advanced, an official said: first, that the actions were permitted by Congress when it authorized the use of military forces against militants in the wake of the attacks of September 11, 2001; and they are permitted under international law if a country is defending itself. [...]
When the name of a foreign, rather than American, militant is added to targeting lists, the decision is made within the intelligence community and normally does not require approval by high-level NSC officials.
I know I should be worried about governments killing people without trials, their own citizens or not, but when I weigh it against my close friends being put in danger to fight the threat they represent then I'm all for drone stikes where our guys don't get any risk.
And, I'm probably alone on here in this, but I'm quite prepared for a few innocents to die if it means my new grand daughter and my nephews can grow up and live their lives.
“And, I'm probably alone on here in this, but I'm quite prepared for a few innocents to die if it means my new grand daughter and my nephews can grow up and live their lives.” Well. Except of course in the few innocents are your grand-daughter and nephews…
That's the line I have been pushing in this thread. If it is legal for your airforce to bomb the enemy's airforce, then it is legal for your airforce to bomb terrorists who have killed 3000 of your citizens and are actively trying to repeat that atrocity. It's national defence. It's not punishing incitment to murder. And the passport of the terrorists is completely immaterial to the law of armed conflict in this regard.Quote:
Originally Posted by Lemur
Pardon, but in my opinion there's a fallacy there similar to the "innocents may die as long as my offspring (i.e. future innocents) may live" above. :book2: With your statement you just justified the bloody massacres of any government.
A country cannot defend itself militarily against its own citizens, its own citizens must be charged, tried and found guilty before the punishment provisioned by its legislation (which should be openly under review and should be adapted continuously yet publicly) is applied in response to the crime. Else it's like putting your foot through Pandora's box.
Obviously.Quote:
Originally Posted by Brenus
In the Independent today: Russian Secret Services are killing Chechen Rebels every where in the world. Do you agree?
I don't really care, people I don't, and would never, know are killing other people I don't, and would never, know.Quote:
Originally Posted by Brenus
While the debate lately went further and further from al-Awlaki himself, I would imagine you lot would be as interested as I would by a detailed report on who the chap was and the al-Qa'ida medium in which he evolved.
As American as Apple Pie: How Anwar al-Awlaki became the face of Western Jihad
by Alexander Meleagrou-Hitchens (yep, he's the son of Christopher Hitchens, if you were wondering)
foreword by Lord Carlile of Berriew QC
published by ICSR
I give you the executive summary of the report below, for a quick overview:
Quote:
Important Case Study
• Awlaki represents the most effective and refined version of his English speaking Salafi-jihadi predecessors, who has adapted more effectively to Western political and social culture. However, unlike his forebears, he was also long considered a leading moderate Muslim and critic of al-Qaeda, having cultivated this image in the years both before and immediately following 9/11. The ideological and intellectual journey that is evident within his public discourse makes him a useful and pertinent case study for the radicalisation of Western Muslims.
• Despite some reports to the contrary, Awlaki was well known as a popular preacher long before the recent media interest in him. According to some sources, by 2000 he was one of the most well known English speaking Islamic preachers in the United States.
• Although there is a clear shift towards violence in his later work, a close analysis of the corpus of Awlaki’s sermons and articles shows a surprising level of consistency throughout. Little has changed from his earlier years in both his discourse and ideological worldview. Rather, the only significant change has been in the prescriptions for solving the perceived problems faced by the ummah (global Muslim community).
Connections with the Muslim Brotherhood
• During his time in the US and UK, many of Awlaki’s main backers and sponsors were closely tied to the international Muslim Brotherhood movement.
• While in America, much of Awlaki’s work was more comparable with the ideology of the Muslim Brotherhood than it was with al-Qaeda’s. His recommendations for Muslims living in the West were almost identical to those put forward by Yusuf al-Qaradawi, one of the Brotherhood’s spiritual leaders. However, even at this early stage, he displayed an admiration for Sayyid Qutb, one of the intellectual godfathers of Salafi-jihadism.
Homegrown Jihadism
• The story of Anwar al-Awlaki, and in particular his intellectual progression to jihad, provides a unique and revealing insight into jihadism in the West. This movement is no longer confined to Muslim majority countries, and through arguments he and others have provided, its message now resonates with small sections of Western Muslims.
• The movement has achieved this level of resonance through a process which includes the appropriation of contemporary Western political discourse about human rights, injustice and foreign policy, interwoven with the history of Islam and the Executive summary fostering a of global Islamic consciousness which demands violent action in order for it to survive and expand.
• Using a number of case studies of individuals influenced to act by Awlaki’s work, this report shows precisely how Awlaki has made key Salafi-jihadi theological and ideological dictums relevant and accessible to Western Muslims through translation and his use of language.
• Throughout his career, Awlaki’s main focus has been to convince Western Muslims that their governments are actively engaged in a multi-faceted war against Islam and Muslims. During his more Muslim Brotherhood-influenced phase, his suggested responses to this threat included political activism within Western Islamist lobby groups, and as he embraced Salafi-jihadism, this gradually became a call for violence.
• In his earlier stages, Awlaki’s ability to juxtapose key moments from the early history of Islam onto the present situation of Western Muslims made him immensely popular and easily accessible. In his later, more al-Qaeda aligned work, one can see how he employs this skill as a highly effective mobilisation tool, using the examples of Mohammed’s more violent phases to encourage modern day jihad.
Relevance to al-Qaeda Post-bin Laden
• A significant feature of much of Awlaki’s work is the lack of direct references to the al-Qaeda network or any of its leading members. This reflects his desire, and that of many other actors within the movement, for the global jihad to move away from a reliance on a particular group or individual, and instead to take the shape of a social movement that transcends personality, culture and organisational affiliation. This is particularly important in the post-bin Laden era, where al-Qaeda and other global jihadists are struggling to remain appealing and relevant.
• Despite his popularity, there is a large gap between Awlaki and senior al-Qaeda leaders like the late Osama bin Laden, Ayman al-Zawahiri and Abu Yahya al-Libi, in terms of both the depth of his arguments and his personal experiences in the global jihad. Awlaki’s presentation of global jihadist ideology is a simplified version of what these and other men have already formulated, and he has tailored it so as to appeal to as many people as possible within the new ‘Facebook generation’ of young, Western Muslims.
• The vast majority of Awlaki’s output is spoken and he has written little, especially when compared to Zawahiri, whose lengthy treatises have provided al-Qaeda with its ideological backbone. In addition, Awlaki has no experience in the battlefield, which sets him apart from the majority of leading al-Qaeda members.
Policy Implications
• Awlaki’s story, while not providing any definitive answers, suggests that there is no easy formula or grand strategy which will solve the problem of homegrown extremism and radicalisation. In particular, it warns against policies that are predicated on the distinction between violent and non-violent actors within the Islamist movement; these distinctions are unclear, and the boundaries that do exist are blurry and easily traversed.
• According to intelligence officials who were involved with the initial assessments of the ideologue for the United States government, Awlaki’s main role in the global jihad is ideological rather than operational. Despite his direct involvement in a number of attempted terrorist attacks in the West, it is his ability to project Salafi-jihadi ideology and mobilise Western Muslims through his sermons that represents his greatest threat. Awlaki is therefore a key tactical asset to the global jihad’s strategy for garnering Western recruits and expanding the movement.
EDIT: I forgot to provide a link towards yesterday's article in NYT on the secret memo authorising the murder. While it will not be made available to the public, it seems there were provisions aplenty to make it a very, very special case at least.
One can only truly say it's not viable to take him alive if you've tried and failed. It appears that the just said "oh, it'd be impossiblt to do exactly the sort of thing we did in Pakistan - let's use a drone". Oh, good - he's involved in an undeclared war to boot so that means the gloves can really come off.
So, he was theoretically tried in absentia without the recourse to a court or evidence and then killed...
The flaws of having a written constitution is one looks so ridiculous when one tries to circumvent it.
~:smoking:
Why would you think that? And why would failing be good evidence, surely it wouldn't rule out succeeding next time.Quote:
Originally Posted by rory_20_uk
Oh, I quite agree - so one can never say that it is impossible to do so. Yet, it appears that not even one attempt was made. Makes it look like a kangeroo court where the arguments were made to fit the decision to kill him - just dressed up in high and mightly phrasology.Quote:
Originally Posted by Sasaki Kojiro
~:smoking:
Reading the account of the internal legal memorandum used to justified the killing, I find the logic quite compelling if you accept that the US is at war with Al Qaeda. If al-Awlaki were serving in the army of a foreign state with which the US was at war, there would be no legal objection to a drone strike on him. The fact that he was serving with a non-state belligerent, Al Qaeda, does not change that in my mind.Quote:
Originally Posted by Nowake
On the pandora's box, being "at war" does not justify a massace. Not every declaration of war is justified. And not every government would want to declare war on terrorist adversaries. The IRA long campaigned to be regarded as legally as being at war with the British state (e.g. to get POW rights for its prisoners) but the UK resisted this and treated them just as criminals. In the context of the more limited armed conflict with between the IRA and the UK government, restraint by the latter was probably sensible. There would have been little more likely to have generated support for the IRA than a drone strike on one of its leaders. (There was controversy over an alleged "shoot to kill" policy in N. Ireland in the 1980s but if such a policy existed it was certainly more covert than the drone strike we are discussing.) You could make the same pragmatic argument about the America's war on AQ. But the reason I keep coming back to 9/11 is that the struggle with AQ is peculiarly unlimited. It's also fundamentally international (if al-Awlaki were operating in the US, a drone strike would not have been appropriate) wherea many other terrorists conflicts are essentially internal.
According to the NY Times article linked to above:Quote:
Originally Posted by rory_20_uk
Quote:
Originally Posted by NYT
If America was at war, then all the soldiers it took should be POWs and would be covered by the Geneva Convention. America has long argued that they are NOT soldiers and hence such rules don't apply... Until, of course, they need them to do so for a different reason. All detainees transferred to POW camps, with Red Cross visits and no forced interrogation? No, thought not.
Merely that Yemeni commandos failed changes nothing. If a SAS / SBS / Delta Force / IDF had failed to do so, that would have credance. Merely that some local incompetants failed isn't evidence that capture is impossible. I should have said a significant attempt to capture him.
~:smoking:
Uhum, I agree. Well, insofar as forcing the war-combatant label on Al-Awlaki can be accepted, yet then we'd have to go back to 2002 and the whole debate then over the mere framing of the issue in terms of wartime policy instead of criminal law (moment in which the above would become a clear case of extrajudicial killing) and we'd both bury ourselves in decade-old articles over which is what. So, in view of the new info on the extraordinary nature of the case and the even more extraordinary way it was treated, I do have to somewhat change my mind -- best way to make sure you've got one after all and a privilege not enough chaps make use of even in light of compelling evidence (that's an old rant of mine, moving on).Quote:
Originally Posted by econ
I will write though that the fact that this was not made part of a public debate is still unsettling and it should act as a caveat should this situation repeat itself -- in fact, this is not actually the first time an american dies in a drone strike targeting AQ per se as far as I know, Kamal Derwish, a Qaeda member from N.Y., was killed in Yemen in 2002. At the time, the Bush administration communicated that it did not know before the attack that Derwish was in the car. But administration officials made it clear that they were not troubled that he was, because he was considered a Qaeda operative and therefore a legitimate target. Thus I can't let go to all my objections. It's not as if a public debate on legally dealing with american citizens operating in overseas terrorist organisations would've impeded operations. And then, in the NYT article there's the small paragraph:
Which again one cannot overlook. Still, in principle, should they actually have a case able to survive the Supreme Court on Awlaki being demonstrably a lawful military target (and I mean demonstrably in Court, because we all know here, even the ones on the other side of the fence regarding the action, that he was so), as they let to believe, no one can object to it morally.Quote:
The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.
Well, no, even the chaps down in Guantanamo are classified as enemy combatants, albeit since 2008, and their treatment does observe the Geneva conventions since 2006, after the Hamdan case I think :book2:Quote:
If America was at war, then all the soldiers it took should be POWs and would be covered by the Geneva Convention. America has long argued that they are NOT soldiers and hence such rules don't apply... Until, of course, they need them to do so for a different reason.
Well, I think the US regards AQ prisoners as unlawful combatants - as defined in the US army link I posted earlier - similar to bandits in a warzone or civilians who attack downed airmen. I think that assessment is fair - terrorists are not fighting to the same rules as uniformed soldiers of a properly established government. How they should be treated when captured is another matter. I am quite happy with applying the humane rules you referred to.Quote:
Originally Posted by rory_20_uk
In a war, you don't have to show that it is impossible to capture an enemy before you shoot him. The issue is whether an operation to capture would be as effective and pose excessive risk to your men. It is self evident that a drone strike can be put in place more quickly than a SEAL raid - thus being more effective at catching an elusive target - and at no risk to your own personnel.Quote:
Merely that Yemeni commandos failed changes nothing. If a SAS / SBS / Delta Force / IDF had failed to do so, that would have credance. Merely that some local incompetants failed isn't evidence that capture is impossible. I should have said a significant attempt to capture him.
I know, but I do think that is the issue here. For many years, I though the War on Terror was an inane idea. Donald Rumsfeld apparently had the same reaction. And I thought the appropriate response was to treat it as a criminal matter rather than a military one. But discussing the al-Awlaki case now makes me re-consider that to some extent. The idea that 9/11 put the US on a war footing cannot be lightly dismissed (as the national head of the air traffic control said, closing US air space: "We’re at war with someone and until we know what to do about it, we’re finished.”). From a domestic political/emotional point of view, the case for the US going on to a war stance after 9/11 was unstoppable. Maybe now that the same scale of atrocity has not been repeated and AQ appears to wilt, the US will move back to treating terrorism as a criminal issue. But I can't with any certainty deny their right to adopt a military approach. (Nor the right of other countries facing severe long term terrorist threats, e.g. Israel).Quote:
Originally Posted by Nowake
More detail about the kill memo surfaces:
And this is where their reasoning breaks down. al-Awlaki was not "detained or prosecuted" by the military, sentence was passed down a year in advance, no court (including military) involved, and sentence carried out by civilian personnel. And what was the imminent risk to innocent people? His killing was premeditated, the situation of his death can't be a factor in the decision because his sentence was passed so far in advance. The memo justifies his assassination regardless of the circumstance, he could have been drinking tea in the desert, it didn't matter. Why would they even include that in the memo, when the circumstances of his eventual demise could not be known? The use of imminent risk here is so egregious, where/when does the "risk" end? So a year later cops can just shoot a suspected armed robber on sight? It's just easier, he might be a risk to innocents, and he don't need a trial anyway, right?Quote:
Originally Posted by Lemur
Actually, I don't think we need to invoke the slippery slope to see why this sort of decision-making is disturbing. Even if we accept that this sort of "kill memo" would only be used on terrorists who cannot be reached by the law, it's still disturbing, and still worth arguing over. Frankly, I find the reasoning of the memo scarily similar to the legal-sounding nonsense put forward by Yoo and Bybee declaring thatQuote:
Originally Posted by drone
enhanced interrogationtorture was a legitimate tool when used on people we suspected were bad.
Did the use of torture by MI, CIA and SEAL interrogation teams metastize into everyday citizens being waterboarded, stress-positioned and head-slammed? No, it did not. The only case that really leaps out is Jose Padilla, and his situation was more complicated. So I'm not sure that imagining drone attacks on gang bangers or "enhanced interrogation" of murder suspects is a legitimate worry.
On the other hand, we have seen that once an extra-legal method is approved in a particular context, it is then used and reused in similar situations by the agents of government. Hence the spread of torture in Iraq and Afghanistan, not in NYC or FLA. Hence the worry that "kill memos" could be written about any figure who opposes US interests overseas.
It's a moral and legal thicket, but we don't need to invoke these extra-legalities being used on grandma.
It's exactly the same crap Yoo and Bybee put forth, 2 lawyers in the Justice Department handwaving away people's civil rights. And the constant pingponging between civilian and military situations whenever it suits them in this case gets old fast.
If they had run it through a marsupial-like Star Chamber run by the judicial branch, I probably wouldn't be complaining so much here. But the effort just isn't there, and that's the pattern I fear. FISA warrants are essentially a rubber-stamping process (you can even post-date them), and the executive branch couldn't be bothered there either.
2 guys in suits being told to come up with uncontested justifications to meet whatever agenda is desired. Unitary executive ftw.
Slightly OT but it does contain constitutional law & drones.
Given the premise of the right to have arms is to put citizens up on an equal footing with the military in the event the civilians want to overthrow an unjust government:
Is Joe Citizen allowed to have his own fleet of drones?
If not, why not?
Quote:
Originally Posted by Papewaio
etcQuote:
in no particular order, early American settlers viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes:[24][25][26][27][28][29][30][31]
- deterring undemocratic government;
- repelling invasion;
- suppressing insurrection;
- facilitating a natural right of self-defense;
- participating in law enforcement;
- enabling the people to organize a militia system.
Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state".[32]
I imagine civilian ownership of drones would be regulated by the FAA (airspace control) and the FCC (RF spectrum control). Missiles/explosives to put on the drones, a big, fat, no. The feds tend to draw the line at personal explosives.
The right to bear arms is phrased in such a way that Joe Citizen is allowed to have hydrogen bombs... It doesn't limit arms at all. Still, I'd expect that acquiring of same would tend to fall foul of NPT and classified info legislation, not to mention that the local homeowners club might get a little upset when they come home to find their neighbourhood marked with shiny new “danger: presence of radioactive materials” signs. <_<
No it is not phrased that way. That's not how constitutions...or english...works.Quote:
Originally Posted by Tellos Athenaios
If there was an amendment that said "Each citizen shall have the right to a free scoop of ice cream in a cone" it would not be "phrased in such a way" that the ice cream could be served in a traffic cone, or a cone 10 yards in diameter, or a cone made off little hydrogen bombs...
The English actually is pretty final about it, ... “shall not be infringed”. Now, you happen to have a whole nice legal tradition of finding ways to bend the meaning of the words used in the Constitution to whatever is practical or desirable (for whomever gets it their way) at any given time. In other words your Supreme Court did in fact rule that such language is not to be taken literally, but that doesn't mean the English itself changes meaning.Quote:
Originally Posted by Sasaki Kojiro
TL;DR: phrasing =/= meaning =/= interpretation.
The legal debate about the 2nd amendment is strongly shaped by exactly the opposite of what you said our legal tradition is.Quote:
Originally Posted by Tellos Athenaios
Exactly :stare::stare::stare:Quote:
In other words your Supreme Court did in fact rule that such language is not to be taken literally, but that doesn't mean the English itself changes meaning.
TL;DR: phrasing =/= meaning =/= interpretation.
The english DOESN'T change meanings.
For example. "citizens have the right to be served ice cream in cups" means, in english, a certain class of cups. It most definitely does not mean the kind of cup they use in sports. When you say things in any language (that I know of) it is not the case that a word in a context can mean any of its possible meanings. "Keep and bear arms" has nothing to do with biological arms like everyone has either, and it does not mean that "literally".
I'm not sure I follow you “in cups” doesn't mean “in certain kind of cups”, it means “in cups”. It doesn't define what cups these are, but crucially it doesn't define what these cups are not either. So there's no restriction on what cups these cups might be. The phrasing is <Reasoning>, the right to keep and bear arms shall not be infringed. That is it, the entire 2nd amendment in full. The meaning is therefore quite simple: there shall be no encroachment on the right to keep & bear <unspecified> arms.
Could you point out the restriction on arms for me? Where exactly do I find that in that sentence?
... I don't. I only find that in your legal tradition which does indeed impose such restrictions. The debate is merely between people who say the restrictions are sensible, reasonable and beneficial which should carry greater weight than the opinions of a few long dead people who were high on 18th century memes, versus those who say that this impinges upon their liberty as laid down in the constitution...
Quote:
For example. "citizens have the right to be served ice cream in cups" means, in english, a certain class of cups.
In cups means in cups, ice cream in cups said in that way means in a certain class of cups. You know this unconsciously because you DO speak the language, but I guess you can't get it consciously?? :dizzy2::dizzy2:Quote:
I'm not sure I follow you “in cups” doesn't mean “in certain kind of cups”, it means “in cups”.
Next you'll be telling me that "all men are created equal" excludes women :wall: :wall:
Where do you get these ideas?Quote:
The debate is merely between people who say the restrictions are sensible, reasonable and beneficial which should carry greater weight than the opinions of a few long dead people who were high on 18th century memes, versus those who say that this impinges upon their liberty as laid down in the constitution...
So basically "arms" is known to have meant guns because that is what they were referring to when they wrote the word, since obviously those were the only kind of arms. Now that there are many different kind of arms, (nuclear, biological), these are not meant to be lumped in with guns under the terms "arms" because when you say "arms" in that context they obviously meant guns, not nuclear bombs.
Thus, when he says cups, you know he means cups and not some thing else with the term "cup" attached to it.
Well the definition of a gun could be a howitzer.
If you restrict the arms to that of 1776 you effectively neuter the intent of the amendment. No force using muskets is going to beat or be able to effectively aid a modern military other then wearing red shirts and all being ensigns.
I thought the constitution is supposed to be a living document, ergo the amendment should be amended to clarify this directly. It could even have a clause that requires the section to re reviewed every decade or so to allow for changes over time.
Guessing what is meant is impossible.
~:smoking:
That's why they don't guess. Why would you imagine the supreme court justices reading it and guessing?????Quote:
Originally Posted by rory_20_uk
Or they what? Go through a time portal and talk directly to those that wrote it?Quote:
Originally Posted by Sasaki Kojiro
~:smoking:
You're right in that English doesn't change the meaning, unless you are talking about in translation where it can.Quote:
Originally Posted by Sasaki Kojiro
But "citizens have the right to be served ice cream in cups" does not define anything apart from citizens have the right to be served ice cream in cups, it doesn't determine a certain type or class of cups just as it doesn't dictate the flavour of ice cream. Similarly "Keep and bear arms" does not define what arms are, common sense says it shouldn't be what your hands are attached to but there is nothing there to determine if it means a BB gun or a nuclear weapon. Bear implies that it should be something you can carry but does not properly define it.
So language doesn't change the meaning but unless you are very precise it is open to interpretation and this is easily tested, draw a black square exactly 4cm on each side:
Spoiler Alert, click show to read:
...aka books.Quote:
Originally Posted by rory_20_uk
It does determine that the kind of cup is not the kind used in sports. The kind of cup is the kind that is used to serve ice cream in, that meets the needs or wants of ice cream serving.Quote:
Originally Posted by Ja'chyra
So it does limit arms...I'm not sure we really disagree. There's a class of arms that you are referring to when you talk about them keeping and bearing them for the reasons that citizens keep and bear arms.Quote:
Similarly "Keep and bear arms" does not define what arms are, common sense says it shouldn't be what your hands are attached to but there is nothing there to determine if it means a BB gun or a nuclear weapon. Bear implies that it should be something you can carry but does not properly define it.
Soooooo... there is a document that explicitly states what they meant in the second amendment? Funny thing, that. All this discussion for decades and there is something that specifies exactly what they meant! What a stroke of luck! Does it even list their discussions on hypothetical situations that had yet to occur? Automatic / semi-automatic guns and what calibre was allowed? Are there any comments on future weaponry that doesn't exist yet?
~:smoking:
.Quote:
Originally Posted by Sasaki Kojiro
No it doesn't. You are conflating equality with “being synonymous”, or at least your reasoning belies making a mental leap or two to that effect. That works in colloquial language, but it breaks down at the level where you talk about semantics beyond a superficial meaning.
Try to translate your sentences into German, say, and mind you stick as close to the original as is possible. Literal translation. That is important because while literal translation is almost always not very useful, it is a marvelous way to highlight where the subtleties in your sources are.
As you know full well “men” means more than “males”, it can also mean “humans” or “people”/“persons”. (Actually “persons” is its most accurate meaning: women is derived from the word “men” itself. It's a feature of the Germanic languages that words tend to default to male gender.)Quote:
Next you'll be telling me that "all men are created equal" excludes women :wall: :wall:
@ACIN:
Ehrm, at the time all sorts of arms where in common usage. From rifles to cutlasses...
I know, I know there were lots of different weapons, but you all got my point. we know what they meant by arms, so talking about personal nuclear weapons is ridiculous. that is what sasaki is trying to say I think.
The whole point: there is no definition in the 2nd Amendment of what kinds of arms apply. Whether that is ridiculous in this world or not is therefore about as relevant as whether chocolate is the best flavour of ice cream when it comes to flawed analogies with cups.
So a ICBM no.
A suitcase nuke yes... Because an individual can carry it... Or an x-ray laser powered by a suitcase nuke (so the explosion is no longer the primary weapon just a collateral effect).
Does bear arms include borne by horse ... I'm thinking the modern day pick up truck with .50 cal tripod on the back as used in Libya
Does it include RPGs? If not then no citizens have arms strong enough to fight a modern armored force. This in turn would require rebels to engage in asymmetric warfare... Making it an even worse situation.
No. No rpgs and no suitcase nukes. The framers had in mind what men of their time had in possession: muskets (and their modern equivalent), NOT cannons. So, small arms.Quote:
Originally Posted by Papewaio
All this discussion yes, because people don't bother to read the stuff :book2:Quote:
Originally Posted by rory_20_uk
But did they mean it in that sentence? Which did they mean, males or humans? YOU are saying that you don't know. Maybe you should translate into german and apply some semantic subtleties to it.Quote:
As you know full well “men” means more than “males”, it can also mean “humans” or “people”/“persons”. (Actually “persons” is its most accurate meaning: women is derived from the word “men” itself. It's a feature of the Germanic languages that words tend to default to male gender.)
But the purpose for the right to bear arms is to be able to have a viable militia, so then you also need to consider what kind of weaponry a militia needs to be useful today.Quote:
Originally Posted by rvg
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Well, even the Proto Indo-Europeans didn't know:
Well damn it.Quote:
The Germanic form is in turn derived from the Proto-Indo-European root *manu-s "man, person", which is also the root of the Indian nameManu, mythological progenitor of the Hindus.
Funny thing, that: in practice, it was not applied to women, slaves, Native Americans at the time...
I put it to you, in my best LA Law voice, that this is purely supposition unless you happen to be a time travelling mind reader.Quote:
Originally Posted by rvg
Exactly our point, you seem to be trying to argue both sides here and applying either side to where it supports you, are you a politician?Quote:
But did they mean it in that sentence? Which did they mean, males or humans? YOU are saying that you don't know. Maybe you should translate into german and apply some semantic subtleties to it.
Again, if it had been properly defined this could not have happened, but leaving ambiguous statements mean they are open to interpretation.Quote:
Funny thing, that: in practice, it was not applied to women, slaves, Native Americans at the time...
I'm assuming that some here are either young or have never worked with law or placing contracts, this type of ambiguity happens all the time and leads to lengths negotiations and extra cost/
Oh, and Rory, you should really give up the fags, you being a doc and all.
I know a thing or two about ambiguity, I do software which is where ambiguity kills the same way it does in law, only worse. (Additionally, software and law are often too close for comfort in the madhouse that is USA patent law.) My previous post was being sarcastic, the same way Rory was.Quote:
Originally Posted by Ja'chyra
Because no one ever wrote anything down.Quote:
Originally Posted by Ja'chyra
Are you agreeing with me or not, I can't tell.
He's trying to be inoffensive and doesn't want to say.Quote:
Originally Posted by Ja'chyra
http://msnbcmedia.msn.com/i/msnbc/se...hite_Paper.pdf
We finally get to see what "due process" really means! Section II.C is my fav. Interesting that there is more text on CYA'ing the executive against prosecution (section III) than the constitutional rights of the target (II).
The fact that before I posted this thread read Anwar al-Awlaki killed by drone was kinda fitting.