Sunday, February 10, 2013

To people who think enemy soldiers who happen to be Americans need to be run through a court first

What do you think of the case of John C. Pemberton, a Pennsylvanian who was stationed in Minnesota and D.C. right before the Civil War started who then fought for the South.

Was it wrong for Lincoln not to ask a judge before going after him and other Confederate officers in Vicksburg? Was that a violation of due proces?

I prefer to think that due process for someone that joins the Confederacy is to treat him like any other officer in the Confederacy (and I imagine the Confederate administration treated Southerners who went North the same way, and that seems perfectly reasonable to me).

Just asking because the same dumb arguments are out in force with the CIA director confirmation hearings. It was very nice to hear Dianne Feinstein speak out clearly on this one.

38 comments:

  1. I can't remember the exact relationship, but someone on the academic league team with me in high school told me that his great (or great great) grandfather was John Pemberton. This guy's name is Z. Pemberton. I remembered because I followed the Wiki article and the kid also referenced the battle. Anyways, he ended joining the Marines out of high school, and I heard from him once or twice a little while afterwards, but never again thereafter.

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  2. "Was it wrong for Lincoln not to ask a judge before going after him and other Confederate officers in Vicksburg? Was that a violation of due proces?"

    Sigh. You still won't acknowledge any difference between "going after" soldiers in uniform on a battlefield actively fighting a battle and people who MIGHT be planning to fight the US but aren't in uniform, aren't part of any formal army, and are currently just riding in their car or something of the sort?

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    1. Expand on the difference. You've just described all of al Qaeda. And they had evidence on Al Awlaki's activities.

      But by all means, expand on the difference. Since this applies to most of al Qaeda should we take down names and get approval from the courts before going after any of them?

      The non-formal nature of the enemy in this case makes things different but I don't see any reason to think that refraining from wearing a uniform changes the fundamental nature of the state of war with them.

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    2. What was the evidence against Al Awalaki? To who was it presented, and who was able to challenge it?

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    3. Treason is one of the few crimes that the Constitution mentions. It does not say that the penalty for suspected treason is death.

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    4. Daniel, AQ works for us. The State Department has admitted time and time again that we are currently funding and equipping AQ's efforts (in Syria and elsewhere), and I highly doubt that this is a sudden change in policy (I think that it's a continuation). As for Al Awlaki, what evidence? I've seen no evidence. The only implication against him publicly has been that he's been in contract with certain fellows by email and that he's said some pretty bad things about the US government (official government statements list him as a propagandist). Also that doesn't explain the droning death of his son and his son's friend two weeks later, as well as the other patrons of the restaurant that day.

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    5. "Evidence" is worth anything at all if it's not shared with a neutral arbiter. Anyone can conjure "evidence" to prove to themselves that what they're doing is justified. Give me a break.

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  3. Daniel, I have given the US government some information which says you are an enemy combatant. You can't see this evidence, the US government won't release this evidence, but they have decided that on this basis they are going to send a drone after you. OK?

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    1. Depends on how good the evidence is. If I'm actually doing that, they ought to.

      Look, if I'm waging war against the United States, of course. Is that going to be conclusively established by your say so? Of course not.

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    2. Why exactly do you find it appropriate for the military to release intelligence about an enemy during a war? You act like it's something salacious - but when has that ever been an expectation???

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    3. Daniel, what do you mean "depends on how good the evidence is"? Good enough for whom, and at what standard? There is no court in which the evidence is presented, no process by which it is challenged. It doesn't have to conclusive by everyone's say so, but it does have to face some process. If the government doesn't have to provide the evidence, how will we ever know the evidence was good enough? The evidence I gave the US government about you is really good Daniel. Is me saying that enough?

      Let me turn it around. Why do you find it appropriate for the police to release intelligence about criminals? If you're committing crimes against United States citizens, then of course not.

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    4. "There is no court in which the evidence is presented, no process by which it is challenged."

      And when has evidence ever been presented to a court prior to a military strike? Why do you think due process associated with a military strike ought to involve courts? When has it ever? If war crimes are committed we bring in courts, of course. But when has a court ever approved a military strike?

      You keep saying things like "it has to...". Can you justify that? My justification is that we've never required that courts approve military policy to my knowledge.

      re: "Is me saying that enough?"

      Of course not, unless you're someone appropriate to decide if the evidence is actionable.

      I'm not sure I understand your question.

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    5. "And when has evidence ever been presented to a court prior to a military strike? Why do you think due process associated with a military strike ought to involve courts? When has it ever?"

      Jesus, are you being deliberately obtuse? If some guy is out in a Confederate (or German or whatever) uniform shooting at our tropps we can pretty much assume he is an enemy combatant. But some guy who wears no uniform, does no fighting and of whom it is merely *alleged* that he channels some funds to Al Qaeda?

      Daniel, what did we do with alleged Nazi spies in WWII? We TRIED them. You know, to see if they were *really* spies. How was this any different than most Americans alleged to be in Al Qaeda? If the evidence is good, we can convict them. If they are shooting at our tropps, we can shoot back. But just because someone somewhere in government thinks they might be plotting something against us, we can go and kill them?! That is pretty much as illiberal idea as I have ever encountered on any so-called "liberal's" blog.

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  4. 1. It's very arguable whether we're "at war" in any reasonable historical sense. None has been declared. There is no other state with an army involved. "Terror" is not an enemy, it's a tactic. The terrorists have killed fewer Americans over the past decade than die in 4 months from auto accidents and did so with box cutters. No war was legally declared by the United States government according to our law of the land.

    2. If we are "at war", I'd love to know who we're "at war" with. A bunch of losers in caves with box cutters? Yeah. THAT'S worth shredding habeus corpus and the entire liberal western tradition to fight. Sheesh. Talk about handing over ideological victory to Bin Laden. Let's make the US into a full blown totalitarian empire where the president/king can execute citizens without any due process other than his own made up rules that he shares with nobody outside of his appointees.

    3. If we are "at war" today, then we will ALWAYS be "at war" because the definition of "war" must now officially be "someone out in the world doesn't like our government". Maybe, just maybe, if our government stopped supporting (and/or installing) the most brutal dictators one can imagine and killing so many innocent people in so many countries, it wouldn't be hated so much and with such reasonable justification.

    4. Granting the executive branch these powers truly amounts to the transformation of President into a temporary totalitarian king. Of course this is antithetical to the founding principles and constitution of this country. But why stop at appeals to legacy or legal authority? Belief that these people can be trusted to protect the American people when wielding such total power requires a frighteningly degree of faith and blindness to history. That history includes lies about the gulf of Tonkin that lead to tens of thousands of dead Americans for absolutely no reason at all. It includes CIA operations in the middle east which can reasonably be blamed for the rise of radical Islam to begin with, including the overthrow of Mohammad Mosaddegh and installation and support of the brutal Shah, which effective brought about the rise of radicalism in Iran in respond. Oh.. and they trained Bin Laden. Oh... and they supported Saddam Hussein in his fights with Iran... and supported Iran... then turned on Saddam after with his invasion of Kuwait, even though there is some evidence that he was given a *wink*nudge* okay to do it... and then we sanctioned the Iraqi people, starving them while the dictators we supported lived large... like we're doing today in Iran.

    But... yeah... we should let the President kill whoever the heck he or she likes so long as they have a justification somewhere which isn't actually shared without anyone officially because of alleged security concerns and which our legislative and judicial bodies as well as the American people have no opportunity to regulate.

    This whole policy has more than just the tincture of fascism, but that seems to be our course on multiple fronts so I guess it is what it is.

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    1. OK, I didn't read past #2. If you're going to be an asshole and pretend you have no idea what the claims are you're not worth my time.

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    2. You might not know, but whenever military subjects come up, I get called a fascist or pro-war or get accused of terrible things. As a liberal, of course, its frustrating and infuriating and insulting. I often don't even open comments for that reason.

      If you comment like this again - if you insist on insults rather than substance - I'm just going to delete it.

      If we're going to discuss this topic we're going to discuss it as two liberals.

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    3. Liberals don't shred the writ.

      But please go right ahead and delete away. Become Delong. You're already cursing, so complete your transformation to the dark side. I've not insulted you in any way. I haven't accused you of anything. I've criticized our government's terrifying policy. You didn't make the policy.

      Liberals think that is an acceptable as a matter of open discourse in a free society.

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  6. For some reason I still can't reply directly to a post.

    @Min, the punishment for treason is established by Congress.

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    1. And the punishment Congress has established for suspected treason is . . . ?

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  8. I will easily grant you that in war, no process is due to enemy soldiers who are not under your control. (Once they have been captured or surrendered, the story changes) The United States could legitimately pour every bomb in its arsenal on soldiers of the Wehrmacht without any warning or court order. The real question is: Is the United States at war with Al Qaeda? Or more generally, can the United States declare war against a private entity, or is war limited to conflicts between sovereigns? (I mean legally, not in the "War on Drugs" or "War on Poverty" and such sense...)

    If the United States can declare war against private organizations, (or accept the war declaration of such an organization) what is the limiting principle that would prevent the United States from declaring itself at war with drug cartels, private militia groups or other criminal organizations within the United States? What is the source of that limiting principle? Could the United States have declared war against Timothy McVeigh and his accomplishes (I believe they did "wage war" against the United States if Al Qaeda has done the same) and killed them instead of attempting to arrest them? If not why not?

    I don't think any of these issues have anything to do with Al Qaeda's actions. The war powers are not limited to defensive wars. The United States is perfectly free to go invade a peaceful ally with no reason at all. So if drug cartels are fair game, the ACLU's legality is no protection. Furthermore, if this is indeed war, the President's extra-judicial killing program is playing by un-necessarily constrained rules. In war, shooting at enemies is fair game even if they do not present an imminent threat (they might still be training or planning) or even if capture is feasible.

    I got one can think of no pre-existing limiting principle that allows the United States to declare war against Al Qaeda (or accept its declaration of war) but does not allow the United States to declare war on drug cartels for instance.

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    1. Now these are actually sensible questions, probably better for a lawyer to answer but this is my sense of it.

      I think it matters a lot that Al Qaeda has been allied with governments and has goals directly associated with the security of Americans. Drug cartels are dangerous, but their goal is to sell drugs. Militia type groups are probably worth keeping intelligence on because of their rhetoric, but it's doubtful much more is required. However, if a large militia tried to overthrow the government, of course you'd wage war on them (and as in the 1860s, we'd choose our sides - "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government", etc. etc.).

      These sorts of distinctions might also be tacit. I don't know if there always are such distinct limiting principles. Tacit principles, of course, are not "fake principles".

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    2. Cool, so someone has gotten you to think about the nature of a war against a non-state entity. Now if we could just go back ten paces and figure out how you wound up assenting to the unchecked "burden of proof" aspect, we'd be set (see, e.g., Yosef and Joe Fetz above).

      I seriously cannot wrap my head around what appears to be just a genuine, innocent belief on your part that the presidency will always be rigorous about it (so rigorous that none of us should even have to ask for proof, even after all's said and done) and will never ever conceivably abuse such a power.

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    3. Consider the scenario where John Doe is a "drug dealer." John Doe is a member of a known criminal organization, be it a gang or larger group (mafia). John Doe is suspected to have committed other crimes and to have associated with other suspected criminals. John Doe is walking the streets of Anytown, USA. Jack Doe, Police officer (an LEO) shoots and kills John Doe. Do you think that the local DA or State Attorney General will ask whether John Doe was a clear and immediate threat to surrounding people? Will that Justice officer accept the LEO's decision to use deadly force based on the fact that John was the member of a criminal organization? Is there no demand on Jack to prove (or at least produce) evidence that John was an immediate threat and so immediate action was required?
      Somewhere along the line there needs to be a distinction between the act of membership and genuine criminal acts. I consider the political parties as constituted to be criminal gangs as defined by RICO. They commit multiple felonies (fraud, extortion, color of authority) all with the express purpose of furthering their criminal enterprise. If I gain a position of authority, do I gain the same discretion (or lack thereof) to commit targeted assassinations because I can justify that the member of opposition party is a gangster? There is a reason we like to tout rule of law, and justice. This drone operation is nothing more than a high tech lynch mob out seeking victims. To compare it to lawful operation of justice or even to warfare is rationalizing that lynch mob.

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    4. Hedlund - are you under the impression I hadn't thought about such a thing before?

      I don't think the president will always be rigorous about it. I don't think courts would always be rigorous about it for that matter. I also don't think giving courts or the public information about an ongoing military operation is the same thing as respecting due process or executing these operations as safely and constitutionally as possible.

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    5. Daniel,

      I think that if indeed the United States is at war against another sovereign state, it makes sense that they should be able to pursue its allies, whether private entities or sovereigns. The main problem I see is that of establishing a sufficient nexus between the allies. For instance, if during WWII, the Soviet Union and some Communist groups in the United States had exchanged some small amounts of resources for the purposes of propaganda, I don't think it would have been appropriate to consider Communist groups to be at war with the United States. But those seem like solvable problems.

      I think the problem you run into when you start taking into account the purpose of the group and its previous actions is that this is a significant departure from principles which govern under which circumstances war can be declared. If you look for instance at the US invasion of Panama, I think it is clear that the United States is not limited to declaring war only against entities that seek to harm the security interests of the United States in a significant manner, so drug cartels, for instance, would be in. So I think your position has a flaw because if going to war against private entities requires some valid casus belli, beyond that required to go to war against a sovereign, then I think your argument that we should be able to shoot AQ officers because we were able to shoot Confederate officers loses some of its obviousness. After all, maybe the principle that prevents us from declaring war against AQ without a valid reason also prevents us from shooting at suspected AQ officers without independent review. That's why I'm looking for a most fundamental pre-existing principle, even if one not explicitly written down. (though I would prefer that)

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  9. Re Gene Callahan's question. Imagine it is Decemebr 1914 and Fritz Haber, not in uniform, not in any army, is working on perfecting mustard gas. Is it OK to send commandos to kill him to forestall this?

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    1. We weren't at war in 1914 and Haber was not a combatant that I'm aware of. I'm not saying if he were at a site in 1917 I'd be concerned if he got killed, but I'm not sure what would justify targeting a civilian associated with an entity we weren't at war with.

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  10. DK: I meant the Brits. As a Canadian we were at war, which is what I was thinking when I posted. So think Werner von Braun in 1942. Or better yet, imagine you're a Canuck :)

    My point is Gene's point is too sloppy.

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  11. @John Papola: I don't understand why, if we are in fact as you claim responsible for creating Saddam, we aren't even more obliged to remove him. Your splenetics lack logic.

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  12. Part of this is because AQ is not on our soil. I would expect the courts to be involved if they were, as they are in Padilla's case for example, or the case of individuals planning to fly to the middle east for training. If the areas they were in had accountable, capable, cooperative governments, these may not be necessary, but that isn't the case here. As far as an independent judiciary, the executive fulfills the same position in these. He may be less independent and take less care, but he still will face the consequences. Those may not be commensurate with his actions but they are still there. There is collateral damage, and it is very unfortunate, but more aggressive action would lead to more collateral damage, and less aggressive action could lead more as well. The judgement call has to rely on the commander in chief. I don't see a problem with a secret judge overlooking cases internally as they come up, but that shouldn't be confused with open trials and opposing lawyers which the exigencies of situation prevent. Or would you prefer trials in abscencia?

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  13. Ken B - Let me ask another "hypothetical". If the President of a country, let's call it Uran, declared an intention to wipe "Usreal" off the map and Usreal became convinced that Uran was working on developing nuclear weapons, would Usreal be morally justified in assassinating individual Uranian scientists it believed were working on the bomb project?

    Generally - the whole point of the drone strikes is that they target people in areas where there is no functioning police force that could be called on to arrest the suspects and deliver them for trial. In the case of Osama bin Laden - the United States started by demanding that Afghanistan arrest and extradite bin Laden. Afghanistan failed to do so.

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    1. http://www.guardian.co.uk/world/2001/oct/14/afghanistan.terrorism5
      http://www.cnn.com/2005/US/08/19/taliban.documents/index.html
      http://articles.cnn.com/2001-10-07/us/ret.us.taliban_1_abdul-salam-zaeef-surrender-bin-taliban-offer?_s=PM:US

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    2. On the first, I'm not sure why having bin Laden alone ought to end the fight against al Qaeda so I'm not sure the trade made sense. On the second one, it's a shame we didn't take them up on it. On the third one that sounds like a good call. Exactly what is a Taliban trial supposed to accomplish.

      Absalon may have other thoughts, but this isn't exactly what he had in mind, I'd wager.

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    3. "During a meeting between Ahmed and Eastham on November 28, 1998, just days after the Taliban's supreme court cleared bin Laden of terrorist activities,..."

      After 9/11 the Taliban were asking for evidence against bin Laden while bin Laden was publicly claiming credit for the attack (and had previously declared himself to be at war with the United States). If the Taliban did not want to hand bin Laden to the Americans they could have expelled him from Afghanistan and let him be someone else's problem.

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    4. Actually, Bin Laden denied responsibility. There exists one video that was provided as proof that he accepted responsibility, but it is questionable (the man in the video looks nothing like OBL). Further, he was never formally charged with the attacks by the United States.

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