It's like you don't even think it is important whether the massive douchebag or the ginormous dick wins the Republican primary in Ohio.
The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause - including in a case involving a U.S. citizen captured in the conflict against al Qaeda - the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.
That is, in fact, an accurate statement of the law.
I didn't think it was likely to be inaccurate.
I don't think it's important to know why I think that you don't think it's important, but that's what I think.
And the law on this point is pretty explicitly "utilitarian," or at least, since Matthews v. Eldridge,applies a utilitarian-esque cost-benefit calculation.
Anyway, I'd like to thank Holder for making this speech so that I can talk about it at the beginning of class tomorrow, even though it would have been nice if he'd made it last week, which is when we were actually talking about utilitarianism and its alleged difficulties with justice and rights.
Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed
It seems that these efforts succeeding would also result in Americans being killed.
6: part of what I found laughable was the sorts of things that are being accounted costs here. Really, the burdens on the government? The government is pretty resourceful. And the mention of the private interest, versus the government's interest in what it's trying to protect—I would tend to think that there isn't just a private interest at stake here.
Holder must recognize that that's the general perception, or he wouldn't whinge on at such length about how doing this doesn't contravene "our values".
8: It seems that these efforts succeeding would also result in Americans being killed.
Just the ones deemed guilty on account of being targeted for killing.
3 may be true, but can "procedural safeguards" possibly consist in their entirety in the people carrying out the procedure asking themselves if they're really sure about what they're doing?
9 - Well, the "burden on the government" means the burden of providing process -- you could see how it might be very different to provide "process" to someone in a foreign country who poses an imminent threat, where a domestic terrorist under custody or surveillance, even if both were equally "dangerous" (ie the interests the government is trying to protect). But I basically agree with you -- the Matthews test dresses up what are basically moral decisions about process in scientistic fake quantitative nonsense.
The closure in combating the combatants is not transitive.
11 - Not usually, which is why Holder relies so heavily on the notion of the imminent threat and the Congressional AUMF. I probably agree with Holder that process can be minimal when there really is a grave threat that's "imminent"; the problem is that the government seems to be working hard to define "imminent" down, without oversight. But there are regular commenters here with way more expertise in this area than I have.
3 -- I think application of Quirin and Hamdi to people who are not explicitly involved in open hostilities against the US, and, in the former case, unambiguously a member of the enemy force, to people who are neither is pretty problematic.
That said, it's certainly true that soldiers are privileged to shoot members of the enemy force, unless they are hors de combat.
15.2 regardless of their citizenship.
Oh, I don't disagree with anything in 15. All I was saying was that the passage excerpted in 3, taken by itself, is accurate enough.
That is, in fact, an accurate statement of the law.
Well, accurate. Accurate? Holder's reference to "the realities of combat" is not, strictly speaking, accurate: it speaks, potentially, to something grave, momentous, serious; or perhaps to nothing really real at all.
Not to play mcmanus on the internet (I'm sure bob will be along shortly to blame it all on the feminists, and to offer an intriguing review of a little-known Japanese film), but the law is only applicable if and when applied to a given situation by who/what/where/when and how? It is not a system of weights and measures; nor a means to balance a budget through a system of double-entry bookkeeping. There is always the question of interest, and also of judgement (which is supposed to counter-balance interest, but it doesn't always do so, of course).
The Supremes' respect for legal precedent has proved somewhat flexible and malleable of late. The principle of habeas corpus, for example, is apparently now a bit of a museum-piece: a noble sentiment, to be sure, to be enshrined in national narratives of the 'struggle for liberty,' and in first-year law textbooks: but let's face it, one of those quaint British-isms that are better commemorated than actually applied, that don't really speak to the situations at hand (and didn't we shake off that nonsense with the Revolution, or shouldn't we have?).
Holder's "We are a nation at war" does not sound at all accurate to me, and would seem to bespeak a corrupt mind. A mind ready, willing and able to subordinate the truth-telling impulse to the imperatives of politico-military power. But wow, are we really even arguing the potential legality of extra-judicial killings? I liked it better when Bush/Cheney were in charge, frankly, and we could all agree that this was depraved and heinous, and transparently self-serving.
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Sorry to interrupt like this, but I'm currently trying to track down the judgement in a 1928 Customs case (Brancusi v. U.S. , 54 Treas.Dec. 428 (Cust.Ct. 1928)). Westlaw doesn't seem to have it, but does have United States v. Olivotti & Co., 7 Ct. Cust. 46 (1916) which Brancusi v US either distinguishes or plain ignores, so it's kinda weird! But I very little clue about US reporting conventions, so while I assume that Treas.Dec is the reporter that could be totally wrong. (If Treasury Decisions (I assume the expansion) is the reporter, presumably if I could but find the Treasury Decisions I could go through until I got to the damn thing.) Is Treasury Decisions the reporter?
So, erm, uh, if anyone has any tips, please feel free! I've tried brute force googling, but I can't find an actual copy of the judgement --- lots of quotations and paraphrases, but. The odds of any law libraries in Chch having a physical copy seem pretty slim, especially given the District Law Society Library was in the earthquake hit High Court...
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So yeah, if anyone has any weird enthusiasms for pointless legal research, fell free to go for it, not that I expect you to! (i've the trad firstname.lastname@gmail.com if you do find anything.)
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On topic (although that was a scholastic question, here's another) --- is it not weird that the solicitor general appears before the Supreme Court? After all, shouldn't it be the barrister general's responsibility?
is it not weird that the solicitor general appears before the Supreme Court?
Actually in Westminster systems it's usually the Attorney General who represents the executive in court, but the American Attorney General has somehow morphed into a Minister of Justice (or a Minister for Justifying Killing Suspects out of Hand), so I suppose, given that they don't distinguish between the Bar and Solicitors, that it makes sense for the next cab off the rank to step up.
Solicitors General in Westminster systems are rather shadowy figures whose function I don't fully understand.
I really hate this issue, because it's so hard to talk about in the abstract, if you don't know exactly how people are using words. Take this passage:
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
I can make this sound as if it falls into perfectly ordinary law enforcement norms. "Sir, he's barricaded himself in his tenth floor office with a sniper rifle and an arbitrarily large amount of ammunition -- he's picking people off the streets at a distance of up to half a mile." [N.B., maybe not perfectly ordinary. But you know what I mean.]
"Can we break in to arrest him?"
"We can try, but the only way to get through the door is with enough explosives that it's almost certainly going to kill him."
"Nothing to be done about it -- set the charges."
There's nothing particularly untoward about law enforcement killing someone who's just about to kill or injure people without judicial process, so long as it's the only practical way to stop them and it's not possible to arrest and try them. And that's true inside or outside the US, and whether or not the killer is a US citizen. And that is what the words in Holder's speech seem to mean when read in their ordinary sense.
The breakdown, though, is when you apply that to someone who's, say, a charismatic cleric who's probably recruiting people or engaged somehow in some kind of Al Qaeda activity. The argument that it's okay to kill someone if there's no other way to get them out of the water tower with the sniper rifle is a perfectly good one as far as it goes, but it doesn't go that far: the words 'imminent threat of violent attack' are being used falsely.
20, 21: We don't have any vestige of the solicitor/barrister distinction left. The Attorney General is the head of the Justice Department, the Solicitor General is the Justice Department's chief litigator.
Mind you the current UK solicitor general is a QC, so it's not an entirely American solecism. Harriet Harman, hilariously, is a QC (Hons), which I do not believe is a real title at all.
19: I don't actually know it, but yeah, Treasury Decisions should be the reporter. Today might be slow at work -- if it is, I'll go up to the library and see if we have it on paper.
The A-G function is annoyingly fiddly. The number of different people who act for the ``government'' in the UK is mad: in criminal matters alone, there's the Crown itself, the DPP, the police in various guises, including the Commissioner of the Police of the Metropolis, and bizarrely, the Treasury. If you want to bring a civil action against the government, do you bring it against the A-G, the Minister responsible, or the Crown? Total mess all round. (Of course the Crown has immunity (except when it doesn't, which is mostly these days.)) (Ignore the courts; suing courts is slightly too annoying.)
Cheers LB --- minor cases from foreign customs courts are definitely in the land of difficult searching.
If you want to bring a civil action against the government, do you
I defend these for a living, and mostly we don't make an issue of it -- if we can figure out who you meant to sue, we act as if you sued them, whether you name the agency, the head of the agency, the State, the governor, some subsidary official at the agency acting in her official capacity, or whoever. Sometimes we fuss about straightening it out if a very wrong person was sued, but it almost never has important implications.
Who gets it wrong? I mean, I'd imagine people doing it on their own would often get it wrong, but surely lawyers would almost always get it right, no?
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Would Limbaugh's advertisers have been so quick to abandon him in the pre-Komen/Planned Parenthood era?
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Tell you what, I like to consider precidents with my Presidents.
My recollection is that after Arnold's treachery became known during the Revolutionary War, that Washington agreed to the execution of the English spy, Major Arnold. The English had set the rules earlier by shooting Nathan Hale. So who else did Washington pick for execution, during the war, or during his presidency? A head count will be sufficient.
John Adams? Thomas Jefferson? James Madison? James Monroe? Andre Jackson? Have the national records nothing to say?
Lincoln! Okay. Killed a whole bunch of southernors, by direction, and it took killing a bunch of northern boys to make that happen. So here's our man! Must have killed... well, how many extra-judicial killings exactly did Old Abe order? Lot of biographies you know, all thosesetsof collected letters, all those general's memoires. Hiow many folks did Abe Lincoln have killed ... privately. Because it was so necessary that people die without involving the courts? Can we get an estimate here? Why not!
And after that -- This ceases to be amusing. The blunt fact is that American presidents generally have not picked out individuals by name for execution outside the law and most specifically have avoided targeting US citizens. Granted, exceptions have been made in wartime, and might be in the future because of unusal circumstances, as LizardBreath describes, but by definition these are not "normal" occurances.
Uh... I'm a bit unhappy that Obama and his people spent so much effort figuring out when it would be just peachy to kill people outisde the law and how to go about it. I sort of wish they'd left this as something really hard to do. I kind of think people writing histories of the USA a thousand years from now will agree with me,
I kind of think people writing histories of the USA a thousand years from now will agree with me
Way to hedge your bets, Seldon.
With the federal government, which (probably) has a narrower waiver of immunity than LB's state, it depends on what you're doing. A suit in the COFC is against the United States. A habeas case is against the jailer. APA review is against the agency.
28: Everyone gets it wrong sometimes, lawyers as well as self-represented (do you use the word pro se in NZ?) people.
30 -- Maj. Andre was tried and convicted. And obviously not a citizen subject to, who, the Continental Congress.
Jefferson didn't have Burr killed, although if he believed the charges brought, Burr certainly seemed a much more consequential danger than Aulaqi.
If Aulaqi had intervened in his father's suit, I don't know what the final result would have been. Well, certainly the standing holding wouldn't have survived, and as for the reviewability question -- well that may well have gone the other way. If he could prove he wasn't a member of the enemy force, all the more so.
One can speculate about his reasons for not intervening: an obvious guess would be that he was a proud member of the enemy force, and thought the apparent lawlessness of his being targeted would be more beneficial to his cause than pursuing a losing case in the US courts.
22 is great. The whole issue is the way threats get inflated by authoritarian paranoia, so somebody who is giving inciendiary speeches about U.S. foreign policy becomes an imminent terrorist threat. A politician or bureaucrat very naturally thinks of a broad range of criticism as a threat.
36.2: In his shoes, my reason for not intervening would be that, given the availability of the reasoning in 22, there isn't anything a court could do to help me. I could get a judgment saying 'The government can't target this man for assassination merely because he gives speeches.' But if they turned around and said "We know he's just about to plan an attack -- we're going to try to arrest him, and in any case disrupt the planning process. If he gets killed while resisting arrest or trying to escape, cookies do crumble sometimes."
From a decent American citizen's perspective, it's important to maintain the legal distinction between the exigencies of law enforcement and targeted assassination of political opponents that the administration is trying to blur. But from the perspective of a target, if you don't trust the good faith of the American government, it doesn't make a whole lot of difference.
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I am greatly enjoying the Cato Institute fiasco.
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I've asked this question several times, and I vaguely remember once getting the answer "no", but isn't this exactly the "bill of attainder" forbidden by the constitution?
42: A bill of attainder would require deliberation by Congress, and therefore isn't as bad as what we're actually doing.
Yeah, you get pro se litigation* in NZ, but it is much much rarer than in the US, and the courts give way less leeway then US courts, I think. (Mind you, we have an extensive Tribunal system that lawyers aren't allowed to appear in that probably covers much of that ground.)
* Litigants in person here.
39: Yes, but another example of how far through the looking-glass the right has gone. It's almost like you could win a Republican congressional primary in Ohio by attacking Jean Schmidt from the right. Nah, too far.