Art from Cosby sweaters by Hennessy Youngman. Even awesomer.
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I just spent all morning in court waiting for a pro se plaintiff who didn't show. The judge adjourned it rather than defaulting him. I figured rather than going straight back to the office , I'd sit on a bench outside the courthouse and eat my lunch. A bird shat on me. Then it started to rain.
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I hope your lunch was delicious, and the rain cleaned you off.
You're just a short walk from the Coogi show, which is at Bowery and Stanton, and only runs through this Friday.
7: And we're locked out of the juicy sex thread by the net nanny.
For someone who is apparently really really internet famous, Hennessy Youngman has very few Youtube video views.
7: So we are -- I could read it from my phone at court, but I don't have signal at my desk.
And me without internet access at home this week. Which is otherwise lovely, but I'll have to wait a few more days to find out what y'all said as presidents.
It really isn't a very graphic thread.
Aside from the sonnet about fisting, it's all about emotion and the like.
To be fair the sonnet about fisting is also, at its core, about emotion.
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I sent the recent Esquire article about Obama to my family (assume everyone here has seen it). My sister's response, verbatim:
"Every president will do this, or something like this. Honestly, I'm not that bothered by presidents making decisions that will mean the end of someone's life, I sit high and mighty in the U. S. of A. and applaud how strong and safe we are.
"What I want Obama to answer why he has done zero, zilch and nada for the environment and conservation of species and nature areas. Boo, Mr. President. Shame."
I do "have the words to respond to this", but pressing "send" on the email is probably not a good idea. As I try to be diplomatic, though, can you reassure me that this is, oh I don't know, a minority position -- particularly as a response to the brutal death of a bunch of innocent teenagers? Thank you so very much. And if you agree with the sentiments as stated above, I'll leave it to you to determine the best way to restrain your hands from typing, without offering my own helpful suggestions.
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I'm quite certain that's a minority position, and a very weird one.
Right, most people care nothing at all about conservation of species and nature areas, though probably most people agree with the "Every president will do this, or something like this" part. Also proclaiming one's pride at being "high and mighty" is odd.
I'm lusting for a Coogi sweater now.
(Not that traveling automatically develops empathy, and it is surely possible to develop empathy without it, but someone who reflexively enjoys the comforts of empire might get more perspective from outside. Or, the way I usually say it is that she sounds parochial.)
Also, NOAA and FWS and Reclamation are way better under Obama than they were under Cheney. Mild praise, but it has been movement in the right direction.
most people care nothing at all about conservation of species and nature areas
Yeah, and the minority who do care about that stuff generally overlaps almost entirely with the minority who care about the lives of foreigners.
NOAA and FWS and Reclamation are way better under Obama than they were under Cheney. Mild praise, but it has been movement in the right direction.
Right. I'm not sure where she's getting the idea that Obama has done nothing on conservation; it certainly hasn't been a major focus of the administration so far, but they've been doing more or less what you would expect a Democratic administration to do on these issues.
18: Then you could give us all genial advice about life while helping us make a sandwich.
14: You didn't actually say this, but I get cranky and hostile about condemnations of drone strikes and the like insofar as they're framed as being about the killing of innocent American citizens, which is how the Esquire article read to me. There really shouldn't be a lower standard for how much we worry about our government killing people depending on what kind of passport they hold.
I'm not happy about targeted assassinations. But I'm also really unhappy about the idea that collateral damage in an assassination is somehow fundamentally worse than collateral damage in a war.
Funnily enough, she is rather a homebody. I wonder what Jonah Goldberg would make of her.
I think the "high and mighty" thing is self-ironizing, because she generally plays her callousness for laughs: "Isn't it terrible that I don't care if millions of people die in a famine, I just care about the cute animals? Ha ha ha. But seriously, I totally don't care."
I suppose it's harmless... I suppose...
I have played drunken bananagrams in a Berkshires farmhouse with a group of people that included the proprietress of sentimental-value.com.
I'm not sure genial advice and sandwich-making are what I'd be doing in this sweater (which appears to be one of two women's sweaters not sold out).
the minority who do care about that stuff generally overlaps almost entirely with the minority who care about the lives of foreigners.
23: Yeah, I think that has a mostly (cravenly) rhetorical function; I'm not sure people truly believe that American deaths count more morally, but there's abundant depressing evidence that "foreigner" body counts fail to persuade. Calibrating the rhetoric in those pieces is tricky. I did appreciate the second-person address in this one, however.
27: Oh, there have to be more, er, spotted owl Republicans among the younger generation. The emotional attachment to cute animals and pristine ecosystems (derived from bad cartoons and respectable sources alike) and an overall sense of entitlement, superiority, etc. are totally compatible. I'm surprised it's not more common than it is. It seems like a very similar complex to, say, the white racist mythos around Native Americans . . . and indeed, my sister loved "The Education of Little Tree" (I never read it).
27, 30: Yeah, it's definitely not a totally unknown set of values, and it was probably more common in the past before today's liberal and conservative coalitions took their present shape. In practice, though, people who hold strong environmental views today are very likely to hold typical "liberal" views on other topics as well.
that has a mostly (cravenly) rhetorical function
I guess, but I think the underlying position that gives it rhetorical force is seriously wrong. Having a problem with killing people other than during a just war, in self-defense or defense of others, or as punishment for crime after due process, is a position I agree with. Thinking that the seriousness of the issue only comes into play when the victim is American makes me kind of sick.
27, 30, 31: Isn't the word 'conservationist' the Republican version of environmentalist? Field & Stream environmentalists?
For someone who is apparently really really internet famous, Hennessy Youngman has very few Youtube video views.
Hennessey/Jayson is artworld famous. That's a lot of hits for a performance artist.
33: Sort of, but it's become a very small niche among Republicans.
I suspect "artworld famous among Republicans" is indeed a very small niche.
They have a magazine and everything, though ("Koons Monthly").
37: Well, there was a time every Republican sort of knew who Karen Finley was.
That whore with the breastmilk, right?
(I don't actually remember what things they hated most about her. But the thing I most remember from seeing her at age 19 was a video in which she was spraying breastmilk everywhere.)
I'm sure 34 is true. But to put it into perspective, most of H.Y.'s 26 videos have been up for well over a year, and none of them have as many views as this 4-day-old clip of a Swedish guy playing HITMAN: BLOOD MONEY.
41: Definitely the yam thing, because I remember reading hostile descriptions sounding as if she were sodomizing herself with a whole yam, as opposed to smearing mashed yams on her body.
Yeah "she stuck a yam up her ass" is how I always heard it.
44: It was the chocolate thing that set Jesse Helms off and then all of it was used against her.
Isn't the word 'conservationist' the Republican version of environmentalist? Field & Stream environmentalists?
There's another, more religiously inspired version that talks about "stewardship" (or, more recently, "creation care").
The last one sounds like a hair product.
32
I guess, but I think the underlying position that gives it rhetorical force is seriously wrong. Having a problem with killing people other than during a just war, in self-defense or defense of others, or as punishment for crime after due process, is a position I agree with. Thinking that the seriousness of the issue only comes into play when the victim is American makes me kind of sick.
I am not quite sure what the point at issue is here. I think most Americans believe American lives are more important that other lives and expect their government to act in ways consistent with this belief.
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Gosh, I looked to see how much how there could possibly be to say about Cosby sweaters. uh, :)
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Thinking that the seriousness of the issue only comes into play when the victim is American makes me kind of sick.
Everyone understands that the American government, and every other government, treats citizens differently than non-citizens, and that generally, non-citizens are less privileged.
Given that fact, political assassination - while generally reprehensible - takes on a new level of depravity when it involves a citizen.
(I've read James's comment 51, and I believe I'm making a different point.)
Here's what I think: We're all men of the world here, and so of course we know, as lk's sister does, that there are always going to be assassinations of people at the behest of the USG, both US citizens and not. What makes recent practice more despicable is that the security apparat now believes it has so much power that it doesn't need to carry even a fig-leaf of plausible deniability around, and in fact, feels secure in bragging about its assassinations etc.
The thing we must realize is that there's never going to be another Media, PA, or Church committee. The time for procedural liberal remedies was a long time coming, and it is now a long time gone. The bragging-about-drone-assassinations thing is not the canary in the coal mine, it is the blinking light and klaxon at the top of the shaft that indicates there's been an explosion and cave-in.
As to how many Merkins are jingoistic assholes who gleefully place a much higher value on US lives than foreign lives, well, how many assholes take that position regarding Israeli vs. Palestinian lives? It's probably about the same proportion, keeping in mind the 9% stupefaction factor which allows for the percentage of people who don't even know what Israelis and Palestinians are.
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@ggreenwald KEY FACT HERE: Ecuador FM: we tried to get Sweden to agree to no extradition to US in exchange for Assange going to Sweden - they said NO
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treats citizens differently than non-citizens, and that generally, non-citizens are less privileged.
I really do contest this. There's not a general principle I'm aware of that makes war crimes more or less severe depending on the citizenship of the victims, nor is there a general principle that non-citizens have different rights as criminal defendants than citizens. There are obviously immigration laws that apply to one and not the other, benefits and services that citizens are eligible for and non-citizens aren't, and there are edge cases around habeas, but there aren't broad legal differences in the protection a citizen has against being actively injured by the US government and a non-citizen, and it seems to me to be actively wrong that there should be.
James' point is a real one -- that Americans generally don't give a fuck what happens to non-Americans. And in terms of active beneficence, I think there's obviously a difference in what the US government is obliged to do to help a US citizen versus a non-citizen. But thinking that it's legitimate for there to be a significant difference in when and how the US government is allowed to hurt a US citizen versus a non-citizen is something I find wrong.
But thinking that it's legitimate for there to be a significant difference in when and how the US government is allowed to hurt a US citizen versus a non-citizen is something I find wrong.
To the extent that war is generally waged against foreigners, I don't think this makes sense.
In general, I think it is absolutely correct and normal for the US government, and for Americans in general, to care more about the welfare of Americans than non-Americans.
As far as the drone strikes in Pakistan go, the only moral issue I have is whether the US is taking sufficient care to avoid non-combatant casualties. The targets are foreign combatants waging war against US forces in Afghanistan. I don't see why specifically singling out leaders poses as specific moral issue. American citizens are different; even when they're part of a group waging war on the US they should be primarily seen as criminals, and not as enemy soldiers, and thus not singled out for attacks. The problem is that the US doesn't seem to be trying hard enough to avoid civilian casualties. There is also the pragmatic question of whether the attacks do more harm than good to US interests by pissing off Pakistanis and Pakistan.
nor is there a general principle that non-citizens have different rights as criminal defendants than citizens.
I'm not expert in this area, but I don't think that's right. It's clear (I think) that aliens outside the sovereign territory of the United States have very different rights as criminal defendants than do United States citizens. The Fourth and Fifth Amendments don't apply to extraterritorial aliens, but do apply to citizens. That is, a US Citizen living abroad retains constitutional rights against acts by the US government that an alien living abroad doesn't. See e.g. this case.
This is true even though within the territory of the United States generally speaking aliens and citizens have the same rights against criminal prosecution.
I don't really have a strong view on whether that's a good thing or a bad thing, but I'm pretty sure that there is a general principle that aliens (living abroad) have very different constitutional rights than do citizens.
As far as the drone strikes in Pakistan go, the only moral issue I have is whether the US is taking sufficient care to avoid non-combatant casualties. The targets are foreign combatants waging war against US forces in Afghanistan. I don't see why specifically singling out leaders poses as specific moral issue. American citizens are different; even when they're part of a group waging war on the US they should be primarily seen as criminals, and not as enemy soldiers, and thus not singled out for attacks. The problem is that the US doesn't seem to be trying hard enough to avoid civilian casualties. There is also the pragmatic question of whether the attacks do more harm than good to US interests by pissing off Pakistanis and Pakistan.
I agree with almost all of that, except that I don't think citizenship makes much of a difference when you have an enemy combatant that in fact is at war with the United States. You clearly can kill a soldier fighting for a foreign army at war with the US without any process at all, regardless of whether or not that soldier is a US Citizen. As I understand it the key question in the al-Awlaki (sp?) case, which I'm not very well versed in, is whether he was in fact acting in ways similar to a soldier in a war against the US, and the methods used to make that determination -- if he was, and was properly determined to be, there's no question that he can be killed, and is not subject to the protections of the criminal law.
It's clear (I think) that aliens outside the sovereign territory of the United States have very different rights as criminal defendants than do United States citizens.
This is the sort of thing I was trying to cover with 'edge cases around habeas'. Under normal circumstances, we don't conduct criminal prosecutions off our own territory, we bring defendants (to the extent possible) to the US and prosecute them there, and under those circumstances they have the same rights as US citizens.
As I understand it the key question in the al-Awlaki (sp?) case, which I'm not very well versed in, is whether he was in fact acting in ways similar to a soldier in a war against the US, and the methods used to make that determination -- if he was, and was properly determined to be, there's no question that he can be killed,
I vigorously dispute that there's 'no question' on that point. The fantasy that terrorists not acting for any nation are 'similar to a solidier in a war against the US' is at the root of the Global War On Terror nonsense, and it's been the justification for our lawlessness since 2001. A person committing acts of violence outside the context of a literal war is a criminal, and should be treated as such. If you're going to pretend they're solidiers, you should be putting them in POW camps when captured, and no one's doing that.
Well, it's clear that the US government has the right to kill certain categories of people who take up arms against the US without process, and those people aren't limited to uniformed members of the military of a foreign state. Who those people are, and how it gets determined who those people are, is a complicated question that I'm not really expert in, but the issue is whether a given individual falls within those categories.
As I understand it, you can kill soldiers engaged in a war against you without process both because the practicalities of war necessitate it and just as importantly because there is no question as to who they are. That's why not wearing uniforms is a war crime, and why carrying weapons openly in a way that makes it clear you're a combatant in a war counts as the equivalent of wearing a uniform.
Anyone who's not fighting a war while wearing a uniform or the equivalent is a civilian, and I believe any legal precedent that allows us to kill anyone in that category without process is in error. We've certainly ginned up a fair amount of such precedent, but I think it's contrary to the Geneva Conventions and to the historical law of war generally.
Anyone who's not fighting a war while wearing a uniform or the equivalent is a civilian
I thought, based mostly on WW II movies and reading about the fighting before the creation of the Irish Free State, that not wearing a uniform but still fighting made you a spy and liable to be shot without trial.
No. It makes you a spy liable to be shot with trial (which can be awfully summary subject to battlefield exigencies). There's supposed to be some kind of process.
which can be awfully summary subject to battlefield exigencies
Does "we can't physically detain you" count as an exigency?
I believe (until Carp or someone more knowledgeable comes along to correct me) that the current position of the US government is that we are in an armed conflict with Al Quaeda, as a non-international armed conflict and we are therefore entitled to kill members of al-Quaeda who are actively "fighters" engaged in the armed conflict, subject to legal requirements of proportionality, avoidance of harm to civilians, etc., applicable to the conflict. For US citizens who are active members of al-Qaeda, the fighters would also have a right to due process under the 5th amendment; for non-citizens, they can be targeted for killing without the 5th amendment applying.
I believe that spies and the like are deemed non-uniformed "unlawful combatants" and could be killed accordingly, with special rules applicable to them. In any event, I'm pretty sure that there is no legal principle that says you have to be a uniformed member of the military of a foreign state to be killed, or otherwise you must be treated as a criminal subject to the full protection of domestic law.
See page 10 (it's some random report, but it's on a .gov site.)
66: In the same way it does for the police, yes. "Shot while trying to escape" doesn't necessarily imply wrongdoing on the part of the shooter. But the intent should be to capture and try.
I believe (until Carp or someone more knowledgeable comes along to correct me) that the current position of the US government is that we are in an armed conflict with Al Quaeda, as a non-international armed conflict and we are therefore entitled to kill members of al-Quaeda who are actively "fighters" engaged in the armed conflict, subject to legal requirements of proportionality, avoidance of harm to civilians, etc., applicable to the conflict. For US citizens who are active members of al-Qaeda, the fighters would also have a right to due process under the 5th amendment; for non-citizens, they can be targeted for killing without the 5th amendment applying.
This is, in fact, the current position of the US government. I think it's globally crap.
67: Your link defines a 'non-international armed conflict' as:
Non-international armed conflicts are armed confrontations occurring within the territory of a single State and in which the armed forces of no other State are engaged against the central government.
This seems of limited applicability to Al Qaeda. I know people have applied concepts from non-international armed conflicts to the GWOTHingsThatMakeUsHideUnderTheBlankets, but it's all stretching edge cases to cover everything.
More of 70: No, wait -- the US government is currently contesting that even US citizens get due process, and that's what people are getting tense about. I think the whole thing is crap.
This is, in fact, the current position of the US government. I think it's globally crap.
Well, you may think so, but it's not "unlawful." There's a legal framework for killing non-uniformed people who are at war with you who aren't uniformed members of the military of a foreign state. Alternately, you could view us as being in an international conflict with Al Quaeda. But in any event it's not illegal to engage in an armed conflict with something that's not a foreign state, and armed conflict means you get to legally kill people without process.
My own take, which again isn't very expert, is that to the extent "Al Quaeda" exists we are legally entitled to kill people who are clearly in combatant roles in that organization (subject to requirements of proportionality, etc.). Military force against that orgainzation has been authorized, and we don't need to treat people who are combatants as we would domestic criminals. I have some doubts as to whether "Al Quaeda" is a meaningfully operational entity any more, and to what extent some people who have been killed as Al Quaeda members are in fact combatants, but to the extent that they are fighters engaged by Al Quaeda in a combat against the United States I don't think there's much question that we have a legal right to kill them as part of an armed conflict.
No, wait -- the US government is currently contesting that even US citizens get due process, and that's what people are getting tense about. I think the whole thing is crap.
I don't think that's right. I think that Holder has said that he thinks US citizens who are targeted in the killings are entitled to Fifth Amendment due process in a determination of whether or not they are in fact combatants associated with Al Quaeda (in which case they can be killed), but that the executive determination of someone as an active combatant provides sufficient process.
Or, to excerpt, here's the position:
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.
The evaluation of whether an individual presents an "imminent threat" incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice - and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military - wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning - when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.
Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel. Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.
Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets - such as combatants, civilians directly participating in hostilities, and military objectives - may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.
Well, you may think so, but it's not "unlawful." There's a legal framework
WHAT HE SAID.
76 is a joke, but (part of? most of?) what made Yoo so outrageous was that the justification for torture was so fundamentally legally flawed as to be ridiculous, and then used as a way to immunize officials for clearly illegally torturing people. He was outrageously breaking the law.
Whatever you think about the targeted killing program of Al Quaeda members by the Obama administration, it's not that -- it's very likely legal, even if you think it's morally gross.
But in any event it's not illegal to engage in an armed conflict with something that's not a foreign state, and armed conflict means you get to legally kill people without process.
I don't mean to be intemperate at you, particularly, you're accurately reporting what has become a conventional interpretation of international law, and one that's been endorsed by US courts. The fact that Obama didn't act to repudiate that interpretation is why I think he's a worthless sack of shit -- I'm voting for him, but I'm very angry at him.
What you said is the result of a process of a ridiculous extension of who we get to kill. As I alluded to way above, the reason that we can kill soldiers without process but we treat them as POWs when we capture them is that it is unquestionable who they are and that they're fighting against us. Spies, you can punish as criminals but you have to try, because it is not unquestionably obvious who they are.
And there's a sliding scale between those statuses, which is laid out pretty well in the thing you linked in 67. When a civilian is directly engaged in combat, you can attack them with military force. It is obvious that this has to be the case -- you couldn't require the military of one side of a conflict to arrest people spraying them with machine-gun fire just because they weren't wearing uniforms. But the spirit of that exemption is that the civilian in question is at the time of the attack openly engaged in fighting -- attacking them is legitimate because it's obvious what they're doing. Are there going to be edge cases? Always. But that doesn't mean that a man who we suspect of talking to people in a way that facilitates their attacking us should be subject to military attack without process.
Again, that thing you linked? Requires that civilians suspected of offenses in a non-international conflict be tried. If doing anything to assist one side made you an unlawful combatant who was never entitled to process again, how would that make any sense?
If doing anything to assist one side made you an unlawful combatant who was never entitled to process again, how would that make any sense?
I don't think that's the (official) position of the current administration. The people targeted for killing have to be fighters/combatants/active participants in the combat (people posing an imminent threat) even if they're senior leaders. That might include planning a terrorist attack, but it wouldn't include "anything to assist one side." Whether or not that distinction gets applied in practice is another story (I don't know, for example, how much credence to give the characterizations of the people who have been killed by drone strikes in Afghanistan) but I don't think the administration is claiming the right to kill any person who has ever assisted Al Quaeda in any way, no matter what.
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 State
This, of course, has no relationship at all to conventional concepts of due process, which include open hearings and an opportunity for the accused to be heard.
The administration is claiming that it can kill people because it believes them to be the sort of person it's entitled to kill without demonstrating anything to anyone in public.
79: Can you conceptually reconcile that principle with the longstanding principle that spies are entitled to a trial?
For example, a civilian who merely assisted Al Quaeda would be entitled to a trial, at least by a military commission, as would a combatant who had been captured and thus was no longer a citizen.
82 -- spies who are captured are entitled to a trial (just as, I believe, the administration thinks captured Al Quaeda members are). Before capture, and subject to the other laws governing armed conflict, you aren't barred from trying to kill the other side's spies.
"no longer a citizen" s/b "no longer an imminent threat."
you aren't barred from trying to kill the other side's spies.
You are barred from walking up to a civilian, saying "You're a spy" and shooting them in the face as a legitimate alternative to capture. They're not a spy until they've been tried.
Before capture, and subject to the other laws governing armed conflict, you aren't barred from trying to kill the other side's spies.
Relying on this to justify the planned assassination of people not visibly engaged in any combat activities at the moment is sophistry (it's not your sophistry, it's the sophistry of the Bush and now the Obama administration). If you see someone not in a uniform in some act of combat, you can attack them with military force, which includes, obviously, killing them if you can. If, instead, you simply have reasons to think that they're acting against you, you have to give them due process, meaning an impartial tribunal. The sophistry is stretching the first case to swallow the second, because the line between the two is not always and utterly clear.
What does it mean to be "visibly engaged in combat activities"? You can, subject to the other laws of war, kill another side's general, or soldiers preparing for combat, or spies even if they're not rushing at you gun in hand. Similarly, you should be able to target an Al Quaeda operational leader who's planning an imminent terrorist attack, even if the attack isn't underway. That doesn't strike me as sophistry, just a straightforward application of the law of armed conflict to a non-state organization.
As I understand it, you can kill soldiers engaged in a war against you without process both because the practicalities of war necessitate it and just as importantly because there is no question as to who they are. That's why not wearing uniforms is a war crime, and why carrying weapons openly in a way that makes it clear you're a combatant in a war counts as the equivalent of wearing a uniform.
As I understand things enemy combatants who do not belong to a proper national military like organization are subject to all the military force allowable in war, and then have less rights than proper soldiers if and when they are captured. In the context of an occupation of a country the rights of the occupying power faced with an armed insurgency are terrifying. (not applicable to Afghanistan, but Iraq was an occupied nation at first) The international law of war was written by states, with the most powerful states being the key ones in that process, and they rigged it in their favor.
NB The relevant UNSC resolutions mentioned the Taliban by name and in general spoke of action against both those responsible for the 9/11 attacks and those protecting and helping them. So not just al Qaeda.
Less rights than soldiers in a conventional military doesn't mean neither the right of soldiers nor the rights of criminal defendants.
You can, subject to the other laws of war, kill another side's general, or soldiers preparing for combat,
Because they're uniformed military in time of war. There's no doubt about who they are.
spies even if they're not rushing at you gun in hand.
What's your basis for this? Obviously, there are edge cases. But you can shoot someone not in a uniform if they're shooting at you, and you can't walk up to someone in a cafe and say "Joe told me you're a spy" and shoot them in the face without a trial. There are going to be judgment cases on the line between the two, but we're well over on the "Joe told me" side of the line, and that should require a trial.
If the rule were "People thought to be spies/unlawful enemy combatants may be shot out of hand whenever found", any requirement that spies be entitled to a trial would be completely meaningless: what would it be? Spies are entitled to a trial if you wouldn't rather kill them without one?
It means they can be targeted and killed the same way soldiers can in an active armed conflict, while not having some of the Geneva Convention POW rights, IIRC this mainly concerns the various internal camp POW self-governance and outside communication stuff. For criminal prosecutions all POW's, whether soldiers or informal combatants, have the right to due process under international law, however, that does not necessarily mean the same rights that criminal defendants have in the US.
86
... If, instead, you simply have reasons to think that they're acting against you, you have to give them due process, meaning an impartial tribunal. ...
Major Andre got a trial but not an impartial tribunal.
90
Because they're uniformed military in time of war. There's no doubt about who they are.
Workers in a munitions factory may be civilians but I believe they still can be targeted.
And there is often doubt as shown by the number of friendly fire casualties.
95: The munitions factory may be targeted. And of course there's doubt.
93: For criminal prosecutions all POW's, whether soldiers or informal combatants, have the right to due process under international law, however, that does not necessarily mean the same rights that criminal defendants have in the US.
But it absolutely means nothing like "We looked at the evidence behind closed doors and decided we were sure."
Anyway, going offline. I'll respond to anything in the morning.
I'll respond to anything in the morning.
Hmm...
93 gets it right. If you know there are a group of spies in a house plotting to blow up a target, you can attack and kill them, just as you would any other soldier. The "due process" requirements come into play once there's been a capture. That doesn't mean you can just kill anyone you find (just as you can't just indiscriminately kill a soldier who is trying to surrender) but if a combat opponent who is a fighter for an organization you're in an armed conflict with is planning an armed attack against you and is a legitimate target, you can kill them, just as you could any other combatant doing something similar.
I'm sympathetic to LB's point--this is clearly new law, and it's not clear to me that it's needed, and it seems reasonably clear to me that it's worse than the old law. And it certainly seems highly susceptible to abuse. But LB seems to be taking the criticism further, and equating this with plain lawlessness, and dismissing defenses of it as mere sophistry in defense of lawlessness. (Or at least that's how I'm understanding statements like 81 and 96.3.) Which seems wrong. These strike me as clear legal principles, for which someone could easily be held to account for breaking. I don't like the changes (and I especially don't like their trajectory), but this isn't John Woo.
I think the legal case for targeted killing of Al Quaeda/Taliban
members is much stronger in Afghanistan than elsewhere, because there's no reasonable dispute that we're in an armed conflict there. The case for Yemen, Pakistan, etc. rests on a broadening of the theory of where armed conflict exists and is IMO where the potential for abuse may be greatest. OTOH I wouldn't have had much of a problem with bombing in 2001 the camp where Mohammed Atta et al were training for the 9/11 mission, don't have one with the targeted killing of Bin Laden, and am not super interested in a rule where we have to invade countries to lawfully kill terrorists there. So it's complicated.
96
The munitions factory may be targeted. And of course there's doubt.
...
But it absolutely means nothing like "We looked at the evidence behind closed doors and decided we were sure."
But that of course is exactly how the munitions factory is targeted. There is no public trial before an impartial tribunal, the military has a process to generate a target list, the factory gets put on it and that's that. And sometimes mistakes are made and the "munitions factory" turns out to be something else.
I don't see why things should be much different for the guy building bombs in his basement.
but this isn't John Woo.
So no two-handed glock-wielding mexican standoffs in a church?
These strike me as clear legal principles, for which someone could easily be held to account for breaking.
That reminds me, does anybody know anything about the book described in this article? I started it, and had to return it to the library before I finished, but it was an odd, interesting, and oftentimes aggravating book.
It's written by a conservative and offers, in some ways, an apology for Obama's actions in the National Security sphere that tries to respond to liberal criticisms. It suffers from the fact that he's so clearly not on the side of the liberal critics, and I think he often mischaracterizes the points under dispute. But at the same time his thesis was interesting and somewhat plausible. From the article:
... In [Jack Goldsmith's] bone-dry but tightly reasoned new book, "Power and Constraint," he insists that whatever the last administration's failings, a la-di-da attitude toward constitutional proprieties was never among them. That is because of a "revolution in wartime presidential accountability" begun in the 1970s and shaped by the terrorism the United States faced after the cold war. Unnoticed by journalists and many constitutionalists, a new and unusual set of checks and balances has been put in place over the decades. This doesn't make the war on terror a success, necessarily, but it means a "rogue" presidency is less of a worry than critics have claimed.
President Obama was long among the loudest of those critics. He blamed his predecessors for having cost America much of its moral stature in the world. Yet, in power, Obama has changed only the rhetoric of the war on terror, not its methods. He called the antiterrorist prison at Guantánamo Bay a "legal black hole" but kept it open. He suspended military commissions at the start of his term, but then started them up again. He holds three times as many military detainees in Afghanistan as the last administration did. In the face of popular outrage, he backed away from trying Khalid Shaikh Mohammed in civilian court. He extended the surveillance measures in the Patriot Act and has targeted terrorists for killing, including the American citizen Anwar al-Awlaki. "Black sites" (secret prisons) and waterboarding had effectively been suspended by the time Senator Obama began campaigning against them.
As he draws up all these comparisons, Goldsmith betrays no partisan animus. He does not allege that Democrats or lawyers are winking at practices they once condemned because Obama is "their" guy. His implication, rather, is that, having had a chance to examine the Bush program up close, the president sees that it has been "vetted, altered and blessed" by the other branches of government.
...
To show that a system is accountable is not to show that it is appropriate or effective. On such matters, Goldsmith plays his cards awfully close to his chest. He seems to approve of the newfangled Constitution he describes, but the reader is never sure. Still, two aspects of the new system give rise to misgivings.
I haven't read the book, but note that Goldsmith (who, to his credit, appears to have resisted the worse excesses of the Bush administration) was a Bush official with a huge personal and professional interest in both normalizing the Bush policies and stressing continuity with the Obama administration.
It's pretty demoralizing to see how Obama's politically motivated pandering to fear and ignorance is said to be some kind of vindication for the original purveyors of fear and ignorance. We don't have Uyghurs in our fucking jail because after he got to the White House Obama learned they actually were terrorists. They are pawns in a complicated game of domestic US politics, and when the history of this era is written decades hence, the President and those who advised him are going to look very bad indeed. (The legal excuse offered by the Supreme Court for evading the question of the legality of continuing to detain Uyghurs although it had already been determined and was not contested that there was no legal basis whatsoever to detain them isn't going to make that outfit look very good either.)
I don't spend much time on the question of who you can shoot -- but I'm not sure (other than the GC provisions Halford cites) it's any different from who you can detain. And that has been interpreted in the courts very broadly: a member of the enemy force, e.g., the assistant cook to a Taliban regiment. I wouldn't be surprised if the current legal position was that you can shoot any member of the enemy force unless and until he surrenders or is otherwise rendered hors du combat.
I don't believe it's been formally litigated yet, but it will be soon (once we're done fighting in Afghanistan): the US position is surely that the use of military force authorized by Congress in 2001 is continuing in Yemen, in alliance with the Yemeni government, against a branch of the organization that executed the 9/11 attack. It's not clear to me that you could assemble a panel of current DC Circuit judges who would say that this is not so. On the facts as the exist now: eventually, we probably are going to prevail against the organizations covered by the AUMF.
Or is a medic or a chaplain. I've never really been sure that al-Aulaqi didn't fit in the latter category, but the fact is that he declined an open opportunity to assert his rights under both the US Constitution or the laws of war. IMO, this was a knowing waiver.
Killing the son looks more like it might be a war crime to me, but I don't have enough details of who knew what when to make a real judgment on that.
The U.S. legal position is that this is all classified. The refusal to provide any details is the most appalling thing of all, IMO. And it means that others may be on the kill list and have no open opportunity to assert their rights.
I think the citizenship thing does matter because it means: 1) the fifth amendment clearly applies even outside the United States, and apart from the due process clause there's the requirement of indictment for capital or infamous crimes 2) I do not see how it's possible for there to be legitimate basis to conclude someone is a legal target if there's not probable cause to indict him for material support, treason, or some other terrorism-related crime. The only explanation I've heard is hand-waving about "sources and methods" which is not really satisfying given the absurd way JSOC and CIA make the determinations about what sources and methods cannot be revealed. (My new favorite example: whether former CIA detainee Majid Khan has a kitty. http://www.washingtonpost.com/politics/in-the-loop-a-kitty-for-bin-ladens-translator/2012/08/16/ffe6b6ca-e7c2-11e1-936a-b801f1abab19_story.html)
We should care about targeted killings of foreigners too, and there are plenty of problematic things about it under international humanitarian law.
On the international law qs I would recommend reading Gabor Rona of Human Rights First, formerly of the ICRC
109 -- You've got the paren in the link, disabling it. They also declassified the Muhammad Rahim's contention that Lebron owes Cleveland an apology. Who says this isn't the most transparent administration ever?
There's an obvious solution to dangerous leaks like this kitty business: http://www.nytimes.com/2012/08/17/opinion/the-right-to-counsel-at-guantanamo-bay.html
100: This is fair -- the difference between the Obama administration and the Bush administration with Yoo and the like is that now they're at least telling us what they think the law is. One of the horrors of the Bush administration is that they weren't admitting they thought torture was legal, so there couldn't be this sort of argument about it. What's bothering me is that it's a drastic change in the law that's being presented as an obvious minor outgrowth of pre-existing legal principles, and that's sophistry. But this:
These strike me as clear legal principles, for which someone could easily be held to account for breaking.
If you can target someone for assassination without showing your evidence to any impartial tribunal, it doesn't matter how much evidence you're supposed to have to have, you don't actually need any and there's no way to call you to account. NattarGcM's not an American citizen. If a drone strike takes him out tomorrow, what would be the mechanism for disputing the appropriateness of putting him on the kill list? And what would be the mechanism even if he were an American citizen?
I can't even figure out the mechanism to get the phone company to pay for my retaining wall after their truck hit it.
113: Here's Holder's answer:
That is not to say that the Executive Branch has - or should ever have - the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.
113
If you can target someone for assassination without showing your evidence to any impartial tribunal, it doesn't matter how much evidence you're supposed to have to have, you don't actually need any and there's no way to call you to account. NattarGcM's not an American citizen. If a drone strike takes him out tomorrow, what would be the mechanism for disputing the appropriateness of putting him on the kill list? And what would be the mechanism even if he were an American citizen?
Public protests. And the government of England, an important ally, could have something to say as well.
A more realistic example might be an Iranian nuclear scientist.
116: And we saw how well that sort of Congressional oversight worked under Bush. Showing congressmen cherrypicked information that they can't ever talk about to anyone? Is not robust oversight.
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I just showed up at work down the street from a fatal stabbing which happened yesterday in broad daylight in front of the public library next to the police station.
This is the 5th outdoor homicide in 4 days. It's scary.
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Would you be safe on a screened-in porch, or is that still outdoors?
118
116: And we saw how well that sort of Congressional oversight worked under Bush. Showing congressmen cherrypicked information that they can't ever talk about to anyone? Is not robust oversight.
The ultimate reason for this is the public as a whole didn't care. You seem to think there should be some magic formula for imposing your extreme minority views on the US government.
Law enforcement is always problematic when the executive is either complicit or sympathetic. Especially when the legislature refuses to investigate or appoint a special prosecutor or something.
One thing that amazes me about the government attitude and popular response is that when you decide things are legal, it means other people get to do them too. Suppose Pakistan declares war on Al Qaeda. Would they be free, as a matter of international law, to blow up an Amtrak train they'd been told had some Al Qaeda members riding on it? 'Exceptionalism' of the kind engaged in by proponents of WOT policy is neither legally nor morally acceptable.
120: Well, I have to walk through the neighborhood. This huge uptick in violence is kind of strange. My clients live here, and I worry about them.
It's hard to care about something you're not allowed to know about, isn't it?
You say magic formula, I say due process. Potato, potahto.
Then I shouldn't have made light of it. The "outdoor" part just seemed funny.
124.1 -- Or are intentionally misled about.
For those, especially the lawyers, who care about this, this article may be of interest:
This Article argues that the legitimacy of the use of military force is undergoing a fundamental but insufficiently appreciated moral and legal transformation. The transformation is this: whereas the traditional practices and laws of war defined "the enemy" in terms of categorical, group-based judgments that turned on status - a person was an enemy not because of any specific actions he himself engaged in, but because he was a member of an opposing army - we are now moving to a world that, implicitly or explicitly, requires the individuation of personal responsibility of specific "enemy" persons before the use of military force is justified. Increasingly, the legitimate use of military force is tied to adjudicative-like judgments about the individual acts and roles of specific "enemy" figures; that is the case whether the force involved is military detention or lethal killing. This transformation transcends the conventional debates about whether terrorism should be treated more like war or crime and is more profound in its implications.
This readjustment in the basic premises underlying the justified use of military force will have, and is already having, implications for all the institutions involved in the use of military force and in the processes by which decisions are made to use force. For the military, this change will generate pressures to create internal, adjudicative-like processes to ensure accurate, credible judgments about the individual responsibility of particular "enemy" fighters. For the executive, these changes will propel greater engagement in decisions that had previously been more exclusively within the province of the military itself. For the courts, this transformation toward individuated judgments of responsibility will inevitably bring about a greater judicial role in assessing wartime judgments than in the past, as has begin to occur already. These changes are not yet directly reflected (or at least fully reflected) in the formal laws of war, but we anticipate that as these changes embed themselves in the practices of states, especially dominant states, these changes in practice will also eventually come to be embodied in the legal frameworks that regulate the use of force. This Article, after identifying this fundamental transformation as the central factor driving struggles over the proper boundaries of military force, then explores the ramifications of this change for issues like military detention and targeted killings.
I mean, I'm sure as hell not going to read 69 pages on this, but lemme know how it is.
122
One thing that amazes me about the government attitude and popular response is that when you decide things are legal, it means other people get to do them too. ...
This a ridiculous argument, our opponents don't care what the US government thinks is legal.