Tuesday, March 5, 2013

Court of Drone Chamber

Frankly, I'm not sure what irks me more; the implication that the Attorney General of the United States considers that there is an "extraordinary circumstance" in which, without a declaration or war, without determining that you are in arms against the United States, but through secret evidence secretly reviewed that you or I may be executed without arrest, without charge, without trial, and without sentence, or the extraordinary slippery weasel-speak that said Attorney General uses to deliver this pronouncement.

Of course this would be an "extraordinary circumstance". That's the entire point. At present a U.S. citizen in Yemen or Pakistan accused of being an "al Qaeda leader" can - and has - been killed without legal recourse or any hope of pursuing such recourse. No, duh; his first fucking hint that he's on the Kill List is Mister Hellfire Missile sailing in through the bathroom window. We know that.

And the President of the United States has the absolute authority to kill without trial an American citizen in armed rebellion against the United States. There's a reason that the Army of the Potomac showed up at Antietam and not the Attorney General; the fucking Rebs were looking for trouble at the end of a Springfield and they found it in spades. That's what happens to rebels in arms. We know that, too

The question Paul was asking - and keep in mind that I yield to no one in my estimation of the Paulites as semianthropoid gomers and in this case, as Al points out in the comments, Paul's question was both intended as a "gotcha" and poorly phrased, to boot - was aimed directly at the gray area between the two.

Given that we don't seem to, either as a nation or as We the People, have problems with killing "them" over "there" but do have qualms about extrajudicial murder of "us" "here"...what happens if one of "us" "here" might - might - turn out to be one of "them" in the same way "they" are eligible for a missile-o-gram from Uncle Sugar? Not taken in arms. Not planting a bomb. Not in active combat. But accused by some unnamed informer of being a "person(s) he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons?"

For all that we have beavered away at our own protections under the law since 2001 it has always seemed to me that there is and should be a simple bright line defining the fundamental relations between a citizen of the United States and the U.S. government and between peace and war.

And that is, if that citizen is not openly in arms against that government, is located where the agents of conventional law enforcement may apprehend that person, and has not been convicted in open court of treason or proved beyond a reasonable doubt to be a rebel or an agent of a power at war with the United States, then that citizen has not forfeited the protections of the law. And if they wish to do harm to that citizen then it is incumbent on the U.S. government and its agents to do everything in their power to do that harm as they are required to do by the Constitution and federal statute.

And, if Holder and his department believe this to be true, then the answer to the question Paul should have asked is simple; No. No, I do not have the authority to summarily execute or otherwise do extrajudicial harm to this person, regardless of what "extraordinary circumstances" exist.

Instead, what Holder appears to be doing is doubling down on the precedent of Korematsu (a precedent that his own department had previously determined to be based on official error); that in times of danger the U.S. government is free to act in contravention of its own law, regardless of the fragility of the evidence (or the lack of evidence), to harm its own citizens.

Our government has done great harm to us citizens in times of crisis; indeed, one of the reasons that wars and emergencies are greatly to be feared is that they afford great opportunity for frightened or ambitious men to do great harm to the rule of law. But in the main our government has, upon reflection, been willing to admit that such harm WAS harm. Our courts have ruled against those actions, and later administrations have disavowed them.

This opinion appears to, instead, insist on the right to do such harm.

And whether it is done with a missile or with a knife, I cannot find that reassuring.

(h/t to Pierce for the original article and the link to the Holder document)


  1. Luckily, Germany stopped the salami slice tactic towards ever less protection of individuals against government power a few years ago. It was the best (and probably only good) thing the junior coalition partner brought into the current governing coalition. They stopped cold the closet authoritarians in our conservative parties.

    I've begun years ago to laugh out loud when someone still play the old "land of the free" tune while disparaging Europe. It's been a sad joke ever since the "Patriot" Act.

  2. Paul effectively was asking, "Do you still beat your wife".

    In virtually every state, as a private citizen, I can employ lethal force against an intruder in my home, based upon my assumption that my life is at risk. What protection based upon "citizenship" does that intruder have? Lethal force is quite the popular answer of choice in American society, guys.

    Paul asked a hypothetical question and Holder gave, as he clearly stated, a very hypothetical answer. But, to protect ourselves against the threat Mr Holder's answer suggests, indeed all "good and patriotic citizens" must be allowed to possess anti aircraft weapons.

    There is much more stupidity or threat rampant in America than the remote threat of the use of a drone in "exceptional circumstances".

  3. Al: Agree that the "drone" part is silly. It's the legal implications here that seem...unpleasant.

    I mean, if the USAG's office legal opinion is that a U.S. citizen on U.S. territory may be preemptively executed on the suspicion of treason (regardless of HOW they do it) that's sort of whole new ballgame.

    The rationale behind the targeted killings overseas is that there IS no legal recourse. We can't arrest the guy, the local government can't (or won't), he's cooking all that secret gawdawful Islamic something, so...boom. End of story.

    I tend to agree with PFK that that fails the "Rumsfeld Metric" - that is, we don't know whether it's doing more harm than good or vice versa and as such should be suspicious of the cost-benefit ratio. But there's at least the marginal justification that if the guy really IS dangerous there's no other way to deal with the danger. I mean, we didn't try to arrest Yamamoto.

    But the whole point of "citizenship" and the "rule of law" is that provided I'm not openly in arms against my own country I don't forfeit the protection OF those laws. If you, my government, believe that I'm a Bad Guy you have to prove it in a court, in public, with me and/or my attorney present, before you can hurt me.

    And - drones or whatever - if that's still true, then Holder's reply to Paul (who IS being a dick here and trying a "gotcha" on Obama's AG, yes, but it doesn't invalidate the question) is simple; no, we can't kill you without trying to arrest you first.

    But he doesn't. Or something like that; the weaselage in his reply is thicker than fudge. But the thing that comes out of this letter to me is what is DOESN'T say, and that's the simple one-word answer "No." No, we don't believe that Federal Law, the AUMF, and the Constitution says that we can attack and kill you, a U.S. national, in a place where we could otherwise reasonably apprehend you, on the suspicion that you are a threat to the national security of the U.S.

    And I can't imagine WHY he wouldn't say that...unless he didn't believe it was so.

  4. SO,
    As for the land of the free sticht it was rather humorous that we fought the Nazis while blacks in America were 3rd class citizens.
    WE didn't need a patriot act when we had Jim Crow.

  5. Chief

    Paul asked a question, and Holder simply said, "I cannot say NEVER, as I am not able to see the future". It really wasn't any more complex than that. We could start a whole thread speculating on circumstances where a "targeted assassination" might just be necessary, and probably agree on several situations where it was.

    We don't believe that Federal Law, the AUMF, and the Constitution says that we can attack and kill you, a U.S. national, in a place where we could otherwise reasonably apprehend you, on the suspicion that you are a threat to the national security of the U.S.

    Can also be stated as

    We conclude that Federal Law, the AUMF, and the Constitution says that we can attack and kill you, a U.S. national, if you are in a place where we could not otherwise reasonably apprehend you, when supported by overwhelming evidence that you are a threat to the national security of the U.S.

    We are over parsing Mr Holder's response to a landmine laden quicksand filled area through which the puerile Mr Paul has demanded Holder walk. I just don't wish to dignify Mr Paul and his claptrap by attacking the AG.

  6. Al - I concur! Paul is playing on the fears of the whackos who still believe that David Koresh was the vic and not the perp in Waco. Where was the Paul's rage when Bush Junior ramrodded the Congress to override Posse Comitatus? That was overreach on a grand scale.

  7. Again; I yield to no one my opinion of the Paulites father and son as irritating fatheads.

    But the actual question that the knucklehead wanted Holder to answer was what if that U.S. national IS in a place where we could otherwise reasonably apprehend him?

    And why didn't Holder just say "Then we'll arrest him, you stupid fucktard." This seems like a ridiculous level of opacity for what should be a really, really simple answer. Holder is either fucking with Paul (answering the question the moron asked rather than the one he meant to ask) or he's puffing out squid ink.

    Why not just come straight out and say "No."?

    1. Because he was puffing out squid ink.
      Remember, he's the AG who seems to find it impossible to prosecute high-level Wall St/mortage industry frauds, in a target-rich environment.

  8. Chief-

    Since neither Holder nor Obama is running for re-election, why not answer the question the idiot asked? No harm in fucking with him. Sooner or later, it is Paul who will be seen as the idiot by anyone with an intellect. Who cares about the other 95%? Isn't it time someone in office "played" to MilPub denizens than just Joe Sixpack?

  9. From the Huffington Post:

    The White House responded to Paul's concerns Thursday, when Press Secretary Jay Carney read a letter Attorney General Eric Holder sent to Paul at the top of his daily briefing.

    "It has come to my attention that you have now asked an additional question: 'Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?'" Carney read. "The answer to that question is no."

    Ask the right question and you get a simple answer.

  10. Ah, there; see how easy that was.

    THAT's all I wanted to hear, and what I hoped Holder would say; I understand the impulse to fuck with the moron (who really IS a worthless skinbag) but given the Bush-high level of public distrust in the U.S. government I think it was a bad idea.

    IMO they should have done this in the original response; essentially started out with a paragraph that read something like "We understand that a creature with a functioning hindbrain would be concerned about the potential for extrajudicial murders...but since you appear to lack such functions let us rephrase the question as we interpret you to have intended to ask..." and then give this answer.

    Could have spared me a lot of sore typing fingers.

  11. Perhaps Mr Holder was adhering to that excellent piece of wisdom:

    Answer only the question that has been asked and never a question that hasn't been asked.

    Rather than be euchred into giving a laundry list of all the hypotheticals Paul's poorly stated question begged, Holder euchred Paul into finally stating a precise question, and then gave a simple answer. Of course, not all the twatwaffles in DC will learn from this, but some will, and Holder has gained an advantage on those that learned.

  12. Thoreau (over on highclearing.com) has pointed out another reason:

    (a) FBI team on site kills suspect. There is some measure of accountability possible (not likely, but possible).
    (b) Drone kills suspect. Who operated the drone? Mr. [redacted] in [redacted location]. How could somebody file charges against them? It's theoretically possible, but the obstacles are far higher than for (a).

    Also, the use of drone weapons domestically crosses an important line - there's no longer even the pretense of trying to arrest the suspect. It's summary execution, pure, simple and not honestly deniable.

    I was reading the Wikipedia (I think later changed) article on the 'Night of the Long Knives' (Hitler getting rid of the SA). One of the interesting comments is that it was the first time that Hitler & Co. openly had people executed under the 'take him out and shoot him' principle. There was no longer even a rigged, one-party court system needed.

  13. Barry

    The a vs b scenario from highclearing may be representative of the court of public opinion, but the operator of the weapon is the operator of the weapon. The killing may have taken place in NJ, with the operator in NV, but NJ can extradite far more easily than across national borders.

    This is exactly the fog stirred up by Paul's vague and sophomoric question. Note that Mr Holder chose not to give a simple answer until Paul inadvertently asked a simple question. What it boils down to is that it take a modicum of intellect to pose a simple question for which there is a simple answer. It's idiots like the Pauls who thrive on asking complex questions, with incomplete information and expect a "Yes or No" answer.

  14. Rand Paul is worried about drones without due process of law? Perhaps he should look at what some local law enforcement people have done:

  15. Well, the upside is that the final Jeopardy answer does seem to support the continued rule of law, despite the coda Al appended re: the New Mexico appropriation of the tradition of the Chateau d'If.

    And I would draw attention to that fact that in his peroration yesterday Paul praised the Lochner ruling, perhaps the most poisonous and oligarchic of the Bad Supreme Court Rulings of the Gilded Age.

    If these fuckers are going to go all openly John D. Rockefeller on us, what's the point of quibbling over who gets to kill who how? Does it matter to the serfs whether they are killed with steel or with whips?

  16. It's called "Theater of the Absurd". Paul just introduced a bill prohibiting the Federal Government from the use of a drone to kill a US citizen who is located in the United States, BUT, "prohibition under this subsection shall not apply to an individual who poses an imminent threat of death or serious bodily injury to another individual."

    I guess it will still be OK to use assault rifles, mortars, flame throwers, Claymores and F-16s to get the job done if there isn't an immediate threat?

    For $174,000 in salary and a personal expense allowance of some $1.3 million, is that the best we can get?

  17. Yep. We are truly getting the government we deserve.

    This ridiculous "security theatre" nonsense keeps bringing me back to what Sun Tzu warned about how long wars are bad for the nations that wage and "win" them as much as it is for the people and places they "win" them in...

  18. Aviator47:

    "The a vs b scenario from highclearing may be representative of the court of public opinion, but the operator of the weapon is the operator of the weapon. The killing may have taken place in NJ, with the operator in NV, but NJ can extradite far more easily than across national borders."

    I'm sorry - what unconfirmed operator of what unconfirmed drone in what unconfirmed base?

  19. To all,
    Yesterday AF Central Cmd announcded that they will no longer list/publish drone misns in AFGH.
    Our tax dollars at war , and for what purpose?