well, jh, maybe we are both talking passed each other because you continue to say I hate conservatives when I know I've said about 100 times on this board that I don't hate conservatives, I hate what the conservative movement has become (which is anything but conservative). If I lump you in with them, it's only because you seem to find ways to defend them for nearly everything they do. So if I've misread you, then my bad. It's certainly true that you have misread me.

I have also said many times that the reason I hate Bush so much is that he had the very worst of both political stereotypes: He was the perfect storm of what I disliked about both parties. So, I can totally see how you would be pro government in some instances and anti government in others. But like Bush, you seem to always land on the side opposite of me (in case you just missed it, that means I have some liberal and some conservative ideas, even though you want to paint me with one huge brush). Yes, I think I'm right, but so do you, so I guess we will both be condemned to an eternity of disagreeing with each other.

But I still think a caricature of you drowning Uncle Sam in a bathtub would be awesome. If you can think of a caricature of me, I'll get one the next time I go to the park.

jerseyhoya wrote:

RichmondPhilsFan wrote:Considering no one seems willing to actually read the memo before defending it (or arguing against my concerns), here's one of my favorite gems that made me so concerned. I had to re-type it so I apologize for any typos:

The fact that an operation may target a U.S. citizen does alter this conclusion. As explained above, the Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is a part of enemy forces. Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize a use of force against a U.S. citizen who is a member of al-Qa'ida or its associated forces and who poses an imminent threat of violent attack against the United States.

(citations omitted)

It further goes on to discuss how it wouldn't violate assassination ban and must be conducted in accordance with the laws or war.

Soooo... where is the limitation on borders? Simply the prohibition on the use of US military assets within the US, would be my guess. But there's already bans on targeted assassinations, and the WH carefully maneuvers around that problem, so why wouldn't we expect more of the same?

I think not using the American military against American citizens on American soil is a pretty bright line.

IIRC, Posse Comitatus prohibits all but the Coast Guard and National Guard from conducting military actions on US soil without an act of congress. It used to require governor consent for something like a natural disaster or state of emergency, but GWB overrode that requirement with the Defense Authorization Act. But I think you still need an act of congress to conduct actual military shootin' an' bombin' action within our borders (like if Canada invades).

jerseyhoya wrote:
It seems pretty useless to me to work from a single fixed definition of conservatism that presumably no longer applies to most American conservatives if the SUPER EXTREME RIGHT WING CONSERVATIVES in Congress aren't conservative.

it's useful to have a context with which to evaluate whether a group of people are identifying themselves as something that they manifestly are not.

in the world of dining, for example, if cannibals were to start referring to themselves as epicureans, you should call them on it.

Phan In Phlorida wrote:

jerseyhoya wrote:

RichmondPhilsFan wrote:Considering no one seems willing to actually read the memo before defending it (or arguing against my concerns), here's one of my favorite gems that made me so concerned. I had to re-type it so I apologize for any typos:

The fact that an operation may target a U.S. citizen does alter this conclusion. As explained above, the Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is a part of enemy forces. Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize a use of force against a U.S. citizen who is a member of al-Qa'ida or its associated forces and who poses an imminent threat of violent attack against the United States.

(citations omitted)

It further goes on to discuss how it wouldn't violate assassination ban and must be conducted in accordance with the laws or war.

Soooo... where is the limitation on borders? Simply the prohibition on the use of US military assets within the US, would be my guess. But there's already bans on targeted assassinations, and the WH carefully maneuvers around that problem, so why wouldn't we expect more of the same?

I think not using the American military against American citizens on American soil is a pretty bright line.

IIRC, Posse Comitatus prohibits all but the Coast Guard and National Guard from conducting military actions on US soil without an act of congress. It used to require governor consent for something like a natural disaster or state of emergency, but GWB overrode that requirement with the Defense Authorization Act. But I think you still need an act of congress to conduct actual military shootin' an' bombin' action within our borders (like if Canada invades).

No, Posse Comitatus prohibits the US military from being used to enforce state law. I did some reading on this last night. It's not a blanket prohibition on the use of federal forces. http://en.wikipedia.org/wiki/Posse_Comitatus_Act In fact, the military can be used by the President within US borders pursuant to the Insurrection Act. http://en.wikipedia.org/wiki/Insurrection_Act

I'd suggest calling them conservatives and "conservatives," but then we'd just argue about which tribe gets the scare quotes.

I used to refer to the Broun/Bachmann/Gohmert menagerie as "mutant pseudo-conservatives," which while defensible isn't particularly constructive.

The irony here is that I'm typing this within earshot of the bus driver union rally in front of the NYCDOE offices. They're chanting for how much they want employment protection and berating the mayor even though their strike is against the bus companies. We pay twice as much as any other jurisdiction per capita to bus students to school. In this sense at least, I'm becoming more conservative, or "conservative," by the day.

i blame bradley manning for all these leaks of classified information. the white paper is confidential but not classified, but is about classified info. WHO ARE WE STRINGING UP FOR THIS BREECH?!

oh wait, probably won't string up whoever Obama told to leak it

i just listened to a big defense of Prez Obama by John Bolton.

OK, he's cemented my view. I feel pretty secure opposing the current status quo of 'we decide, you never know' on drones.

My opinion on Wyden v Brennan today? GET UM

jerseyhoya wrote:I did read the initial NBC News article a few days ago when I posted it. Read through the full piece just now, and it's not really that much different (or at least it wasn't much more informative for me because I'm unfamiliar with most of the relevant legal precedents cited). The case made is pretty compelling to my untrained legal eye, but most unrebutted cases are.

As for your question, the person being outside the United States is part of the definition of when this is OK (see bottom of page 6 for one example). Why couldn't they mumble that part away like the assassination bit? I mean, I guess they could in theory but there are a number of practical reasons why I think that is extremely unlikely ever to come into play.

If someone is located in the United States and you know where they are to a sufficient degree that you can launch a drone strike or other type of hit on them, they are basically by definition able to be captured. The other variables that come into play that complicate matters with them being in another country fall away. You would have to rework the entire rationale, not just a small piece of it.

If a terrorist/US Citizen is launching attacks from some heavily fortified encampment, I'd be fine with looking to kill rather than capture them, but at that point you're not debating the imminence of threats or due process, you're acting in self defense. Otherwise you can wait them out, try a raid or some other option.

I also think public opinion would react a lot differently to the government summarily executing people on our own soil, and that would be an additional deterrent. I just don't really see it as a viable slippery slope concern.

See, you're still not getting my point. I understand that the question is limited within the confines of the memo. But the fact that the limiting language is included in the hypothesis doesn't change the fact that the (flawed) analysis is equally applicable to US citizens within its borders. The memo does absolutely nothing to distinguish the two situations--it even acknowledges that the Due Process protection for a citizen within US borders is identical to the DP protection for a citizen outside US borders, then goes on to explain that the fundamental liberty interest of life is still outweighed purusant to a Matthews v. Eldridge balancing test.

So if it's the same liberty interest, the same level of DP protection, and the same governmental interest of homeland security, then how is the analysis any different?

Hint: it's not, at least not according to the people espousing this position. Oh they might pretend the analysis is different and that it's due to the fact that the person is "impossible to capture" (nevermind that the memo says "infeasible" not "impossible"), but that's never before been a standard for the right to due process.

Again, the fact that you think "public opinion" is enough of a protection against this type of overreach saddens me. I hope you're right... I'm just extremely skeptical given the lack of lasting outrage for debacles such as Waco or Ruby Ridge. After all, those were the cases that caused the FBI to revise their deadly force guidelines to require "imminent danger" of death or serious injury, which was merely in accordance with long-standing Supreme Court case law on the constitutionality of the use of deadly force by law enforcement. Now, we're right back to expanding the use of deadly force against U.S. citizens, yet you don't seem to care one iota.

RichmondPhilsFan wrote:

jerseyhoya wrote:I did read the initial NBC News article a few days ago when I posted it. Read through the full piece just now, and it's not really that much different (or at least it wasn't much more informative for me because I'm unfamiliar with most of the relevant legal precedents cited). The case made is pretty compelling to my untrained legal eye, but most unrebutted cases are.

As for your question, the person being outside the United States is part of the definition of when this is OK (see bottom of page 6 for one example). Why couldn't they mumble that part away like the assassination bit? I mean, I guess they could in theory but there are a number of practical reasons why I think that is extremely unlikely ever to come into play.

If someone is located in the United States and you know where they are to a sufficient degree that you can launch a drone strike or other type of hit on them, they are basically by definition able to be captured. The other variables that come into play that complicate matters with them being in another country fall away. You would have to rework the entire rationale, not just a small piece of it.

If a terrorist/US Citizen is launching attacks from some heavily fortified encampment, I'd be fine with looking to kill rather than capture them, but at that point you're not debating the imminence of threats or due process, you're acting in self defense. Otherwise you can wait them out, try a raid or some other option.

I also think public opinion would react a lot differently to the government summarily executing people on our own soil, and that would be an additional deterrent. I just don't really see it as a viable slippery slope concern.

See, you're still not getting my point. I understand that the question is limited within the confines of the memo. But the fact that the limiting language is included in the hypothesis doesn't change the fact that the (flawed) analysis is equally applicable to US citizens within its borders. The memo does absolutely nothing to distinguish the two situations--it even acknowledges that the Due Process protection for a citizen within US borders is identical to the DP protection for a citizen outside US borders, then goes on to explain that the fundamental liberty interest of life is still outweighed purusant to a Matthews v. Eldridge balancing test.

So if it's the same liberty interest, the same level of DP protection, and the same governmental interest of homeland security, then how is the analysis any different?

Hint: it's not, at least not according to the people espousing this position. Oh they might pretend the analysis is different and that it's due to the fact that the person is "impossible to capture" (nevermind that the memo says "infeasible" not "impossible"), but that's never before been a standard for the right to due process.

Again, the fact that you think "public opinion" is enough of a protection against this type of overreach saddens me. I hope you're right... I'm just extremely skeptical given the lack of lasting outrage for debacles such as Waco or Ruby Ridge. After all, those were the cases that caused the FBI to revise their deadly force guidelines to require "imminent danger" of death or serious injury, which was merely in accordance with long-standing Supreme Court case law on the constitutionality of the use of deadly force by law enforcement. Now, we're right back to expanding the use of deadly force against U.S. citizens, yet you don't seem to care one iota.

I agree 100% with Richmond. Public opinion polls are worthless given the fact that Americans are amongst the most uninformed populace in the industrialized world. Polls can also be manipulated by the polling companies to attain a certain response. They might ask "Do you support drones against US citizens?" Many would simply answer No. But if they ask "Do you support drones against US citizens if they are a threat to your families safety?" Well, the poll responses would be quite different and this is without explaining this perceived " threat". Relying on poll data is risky business, especially considering what's at stake here.

i'm not even saying we should just put all the drones away. i want the procedure known, how we decide who is imminent, what does imminent even mean, etc, to those who SHOULD know in our government, instead of letting the current inhabitant of the Whitehouse having the first, second and final say.

pacino wrote:i'm not even saying we should just put all the drones away. i want the procedure known, how we decide who is imminent, etc, to those who SHOULD know in our government, instead of letting the current inhabitant of the Whitehouse having the first, second and final say.

This. Hell, it's not even necessarily Obama right now (although it's absurd to suggest he's ever completely out of the loop) that makes the decision whether to execute a US citizen... it just needs to be an "informed, high-ranking government official" (I may have gotten the term from the memo slightly wrong, but that's the gist).

The drone program in Pakistan is the worst-kept classified "secret" in decades, yet the WH still refuses to even acknowledge it's happening.

At least make it subject to judicial review via the FISC or something. That's still crap, but at least the WH would be acknowledging that there are limits to Executive Power.

just count me uncomfortable - ok, repelled - by easy, reflexive authoritarianism. Especially where possible murder is involved

bolton, the easiest, most reflexive (and repugnant) authoritarian on the public stage, is all for it - what more do you need to know

it only took three years for them to even confirm the program exists...at least congress gets to know. not sure if the legality will get to be challenged, or how? way to do it a few hours before Brennan's hearing so people can't fully parse it.

You can't be both anti-authoritarian and at the same time believe that public opinion is an inadequate check on abuse of power. (The word is power, not constitutional authority).

The reality is that elite protection of civil liberties against the vagaries of public opinion that some point to was an anomaly of the Warren Court. And even then, it's overstated how much the court diverged from public opinion.

TenuredVulture wrote:You can't be both anti-authoritarian and at the same time believe that public opinion is an inadequate check on abuse of power. (The word is power, not constitutional authority).

uh, what

TenuredVulture wrote:You can't be both anti-authoritarian and at the same time believe that public opinion is an inadequate check on abuse of power. (The word is power, not constitutional authority).

The reality is that elite protection of civil liberties against the vagaries of public opinion that some point to was an anomaly of the Warren Court. And even then, it's overstated how much the court diverged from public opinion.

Nonsense to the first point. Our system is explicitly designed to embrace the notion of being skeptical of consolidated power while believing that majority rule is insufficient. I can't believe you're even trying to make that argument.

As to the second point, the case law that SHOULD prevent this type of program doesn't come from the Warren court. Tennessee v Gardner, Hamdi v Rumsfeld, Matthews v Eldridge... those cases should be sufficient to demonstrate that an American citizen is entitled to at least some degree of judicial oversight.

Pretty good read.

http://www.washingtonpost.com/blogs/worldviews/wp/2013/02/06/6-concrete-policy-ideas-for-fixing-americas-drone-dilemma/?hpid=z2

The point is, unless there is broad general popular support for civil liberties, you aren't getting them, no matter what the constitution or case law say. For better or worse, in fact, civil liberties depend on public opinion.

TenuredVulture wrote:The point is, unless there is broad general popular support for civil liberties, you aren't getting them, no matter what the constitution or case law say. For better or worse, in fact, civil liberties depend on public opinion.

Again, this is crazy talk. You can say that there is "broad general popular support" for the First Amendment, but the devil is in the details. There certainly is not "broad general popular support" for the type of hate speech espoused by Westboro Baptist--just look at the amicus briefs filed by 48 out of 50 states (plus DC) and forty U.S. senators in Snyder v Phelps if you need a recent and non-Warren Court example--yet the Court correctly and overwhelmingly upheld their right to engage in it.

By parallel, there is "broad general popular support" for Due Process, but that support greatly falls off once you talk about subjects like the War on Terror and "enemy combatants." That doesn't mean courts should (or would) abandon it. In fact, Hamdi v. Rumsfeld certainly leads one to conclude that courts would not abandon it, even in the context of the War on Terror.

Also, I haven't looked up any polls, but I'm confident in saying that there certainly isn't "broad general popular support" for a criminal defendant's right to a speedy trial in the Sixth Amendment (outside of the vague notion that if it's in the Bill of Rights it must be good), mostly because the overwhelming majority of Americans has no idea what that means or how it has been interpreted. Yet the test set forth in Barker v. Wingo still holds true (mor or less), and there are plenty of cases where an indictment has been dismissed due to Sixth Amendment violations. There's no groups outside protesting that a defendant's Sixth Amendment rights have been violated, and its highly unlikely that would there even be news coverage about it for obvious reasons (although one of the later trials of John Allen Muhammad is an obvious exception to that).

We pretty much only want the good guys to have rights or due process. This is both abhorrent and inevitable, and thus at the heart of why we're supposedly "a nation of laws, not men."