Resist We Much on February 8, 2013 at 3:56 PM

I have said repeatedly that BEFORE BEING TAKEN INTO CUSTODY they have no expectation of due process.

BEFORE BEING TAKEN INTO CUSTODY
BEFORE BEING TAKEN INTO CUSTODY
BEFORE BEING TAKEN INTO CUSTODY
BEFORE BEING TAKEN INTO CUSTODY
BEFORE BEING TAKEN INTO CUSTODY

sharrukin on February 8, 2013 at 3:39 AM

Er, I didn’t write this:

“There is no due process in war.”

sharrukin on February 8, 2013 at 12:36 AM

You did.

You said that there was due process in war. I’ve proven – with Supreme Court precedent – otherwise.

Is a Marine sniper on the battlefield from, lets say, two clicks out committing and assassination when he pulls the trigger on a enemy?

Bmore on February 8, 2013 at 11:38 AM

NO. Without a doubt, citizenship neither requires the military to question the citizenship status of combatants on a battlefield in the midst of a firefight nor does it require the Federal government to pull its punches because an American might become endangered if its acts against its declared enemy. Thus, the military did not need to first determine if there were Americans on a battlefield or hostile place (John Walker Lindh) nor did it have to forgo the bombing of Tokyo in WWII because Tokyo Rose might be living amongst the inhabitants nor did the Federal government have to grant Americans, who left to join the GERMAN army in WWII and were caught spying, a civilian trial rather than a courts martial.

The execution programme is quite different. It is the specific targeting of Americans that is problematic because they are entitled to a modicum of due process. Furthermore, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court ruled that the President may hold enemy combatants, including Americans, but also held that detainees who are US citizens HAVE RIGHTS OF DUE PROCESS and MUST be able to challenge their enemy combatant status before an impartial court. In the 3 cases where Americans have been executed by drone, none was even indicted.

If a President cannot strip Americans, who are enemy combatants fighting for non-government enemies of their due process rights in connection with detention, he cannot do the same by ordering their assassination.

I am THRILLED that Anwar al-Awlaki and Samir Khan are DEAD. I am not fighting for them. I am fighting for you, every other American and the rule of law.

If we permit this – the most grave of all powers a leader can have, then we will suffer in the future.

Constitutional rights are not to be fought for and upheld only when it is expedient.

If they are, then their citizenship is irrelevant. Even when they are NOT enemy combatants, but simply civilians in an enemy city, POWs, or forcibly conscripted such as we saw in the War Of 1812, their constitutional rights do not apply in such a situation.

In fact there are times when you have no due process domestically with the police. They do not have to put you on trial before they use lethal force if the situation requires it.

sharrukin on February 8, 2013 at 3:39 AM

Yes, being an American is most assuredly important. Presidents MAY NOT order the assassinations of American citizens.

Yes, being an enemy combatant before you TARGET someone is important.

Yes, AS I HAVE REPEATEDLY WRITTEN IN THIS THREAD, Americans in Dresden, Tokyo, or whatever were fair game. They – INDIVIDUALLY – were NOT TARGETED. They were ANONYMOUS AND COLLATERAL DAMAGE.

Yes, the police can use deadly force, but only in limited circumstances as I HAVE WRITTEN SEVERAL TIMES ON THIS THREAD.

ONCE AGAIN, since you have an obvious reading comprehension problem:

On the use of deadly force and law enforcement, in Tennessee v Garner, 471 US 1 (1985), the Supreme Court held that law enforcement is only permitted the use of such force against dangerous suspects, who are in flight, when killing the suspect is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

Probable cause IS required, the suspect MUST be in flight, and he must be an IMMINENT DANGER.

In Fourth Amendment cases, the Supreme Court has stressed that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.”

Deadly force was held not justified where a suspect’s vehicle was “moving slowly and in a non-aggressive manner, could not have hit any of the officers, and was stationary at the time of the shooting.” Kirby v Duva, 530 F.3d 475, 482 (6th Cir. 2008). Also, in Smith v Cupp, 430 F.3d 766, 774-75 (6th Cir. 2005), the Court held that suspect who had taken control of officer’s patrol car, although he was in possession of a dangerous weapon, “was not threatening the lives of those around him.”

“Shoot to kill” orders are UNCONSTITUTIONAL.

Bulletchaser on February 8, 2013 at 3:17 PM

I didn’t say assassination was a bad thing we should never do.

Once war is declared, combatant in the battle-space is a legitimate target.

Ok, so “battle-space” in the GWoT is … global. Anywhere on the planet, right?

Combatant is … whoever any “high level government official” says it is according to this memo.

By your rules you’ve just declared any “high level government official” can kill anyone, anywhere, at any time.

Are you really sure that asking for a bit of evidence or oversight is too much to ask when you demand the right to kill any person on the planet on a whim?

I think I’m going to have to ask that perhaps we have just a tiny bit of oversight or limitation on that one. I don’t trust the government that much. I’m surprised you do…

If however your sniper’s target is at the dining room table sitting down for a snack… yes, that is an assassination. It’s hard to have a “battlefield” without a battle.

What!? So a “dawn raid” should wait till after breakfast to be legitimate? A midnight attack is illegitimate because the enemy is in his PJ’s?

Once war is declared, combatant in the battle-space is a legitimate target. Most women and children are not legitimate targets, men who are on a base, sometimes in uniform, have weapons are Most certainly a target, in PJ’s, in the mess hall, playing cards on a warship, or asleep in their bomber.

The snipers bullet is a weapon of war, just like a bomb or a missile, precision guided by the hand of the soldier instead of electronics but none the less for such. Assassination is only a civilian word, used for illegitimate killing of another, not war. Kennedy was assassinated, soldiers in the field, no matter if In flagrante delicti in the brothel or with bullets blazing are not.

And I am not at all convinced that Abdulrahman al-Awlaki wasn’t an enemy combatant. No one has given me any sane reason for this guy to be joining his terrorist father who was a self-declared traitor.

sharrukin on February 8, 2013 at 2:12 AM

We’re in agreement… I’m not convinced if he was or wasn’t an enemy combatant.

We don’t know, if he was in combat when he was killed then we’d know; but as it is we don’t.

Any proof he was an enemy combatant?
We’re not allowed to see that, and it will never be released to anyone.

The person who thought he was thought so because?
We’re not allowed to see that, and it will never be released to anyone.

The people who can make such a determination are?
We’re not allowed to see that, and it will never be released to anyone.

…

I start to have a problem here. Someone somewhere can decide on their own that you’re an enemy combatant, and on that alone you can be killed without oversight or question wherever you may be found.

That seems a bit further than I’m willing to trust the government. Ever.

Or does his very presence mean that no strike can take place because he’s an American citizen? That would allow any terror group to seed their formations with Americans as an invincible shield from American airstrikes.

sharrukin on February 8, 2013 at 2:03 AM

Or his random place on the planet. For Example: Let’s say he is in a Mosque in Illinois or Kansas City. Under your logic that should not reduce the opportunity to strike him down. I mean, the left sees “National Borders” as so last Century and everyone here is either documented or about to be documented, so an evil terrorist and his son or daughter is a target and his location on this planet, his citizen status, etc is irrelevant to the bureaucrat in charge of destroying said Terrorist.

Unbelievable.

I have this question to ask but no appropriate thread to ask it on. So….

The question of assassinations

I have a question about this. My hope is perhaps you all will help flesh this out for me. Is a Marine sniper on the battlefield from, lets say, two clicks out committing and assassination when he pulls the trigger on a enemy?

Bmore on February 8, 2013 at 11:38 AM

Bmore on February 8, 2013 at 12:01 PM

Just my opinion, so take it for what it’s worth.

If there is a battle in progress, a fight being engaged that his target is a part of… No, the sniper is also part of the battle (well removed, but still “battlefield” conditions/rules apply you shoot anyone in the fight opposed to your side). An air strike from outside the range of the people you’re fighting isn’t “assassination” either.

If however your sniper’s target is at the dining room table sitting down for a snack… yes, that is an assassination. It’s hard to have a “battlefield” without a battle.

That doesn’t mean we can’t or shouldn’t assassinate people. But it isn’t a situation where “This guy is pointing a gun at someone on my side, if I don’t shoot him this second without approval”. It’s a “for the benefit of our side, we need to kill their leaders to demoralize their troops and confuse their command structure” or maybe even “one less room full of guys to fight us later”.

But if we’ve tracked down a guy to have him assassinated whenever we find him; we can also get minimal due process/evidence/oversight approval for killing him once we do find him.

That’s my opinion, not the rules of law; but I’ll stand by that opinion.

Evidence belongs in a courtroom, not in a war torn region like Yemen. Again, you are thinking this is a law enforcement concern and it isn’t.

There is very little that is just in war. People die for all sorts of reasons and this kid was looking to join his Al-Qaeda father. He wasn’t an innocent party. He wasn’t there looking to get his father to sign his yearbook.

So tell me… what he was doing there?

sharrukin on February 8, 2013 at 1:14 AM

Hamdi V Rumsfeld, a 2004 SCOTUS Case.

We caught Hamdi GUN IN HAND FIGHTING AGAINST THE US FOR AL QAEDA. No question what he was doing there.

Bush said “I can detain him indefinitely without due process, evidence or oversight”.

SCOTUS said “No, you need a neutral party for evidence and oversight; not a full court trial; but something” and we got military style trials for Gitmo detainees. No public trial, no courtroom trial; but an evidentiary hearing with outside involvement and oversight on the process.

This kid wasn’t in the middle of a battle shooting at US troops. We assassinated him. And somehow you’re under the impression we can assassinate a US citizen outside of the field of battle without due process, evidence or oversight of any form…

Do you believe the Hamdi ruling was wrong? Or is assassination ok, but detaining someone is too horrible to allow?

We have a solution. Military style trials, held outside the view of the public to preserve the secrecy of sensitive materials; as we had for Hamdi ruling detainees.

This isn’t a decision made ON the field of battle, but beforehand. We have a setup for due process and evidence to preserve a minimal required respect for the rights of US Citizens, while not treating terrorists with kid gloves.

Why don’t we use the process the SCOTUS has already said we must use to clarify that a US Citizen in fact IS a terrorist?

Apparently I’m missing something; but I don’t understand what it could possibly be.

The question of assassinations

I have a question about this. My hope is perhaps you all will help flesh this out for me. Is a Marine sniper on the battlefield from, lets say, two clicks out committing and assassination when he pulls the trigger on a enemy?

Bmore on February 8, 2013 at 11:38 AM

The whole point is that any “offical” gets to decide what that means. In other words, it depends upon what the meaning of “enemy combatant” is, (think Bill Clinton) and “any offical” gets to use his own dictionary. After Benghazi, surely there will be no repercussions by oversight folks, will there?

Don L on February 8, 2013 at 10:31 AM

Congressional oversight is supposed to exist. Someone has to make those decisions. Someone has to decide where the military will act and under what circumstances and who to use military force against.

A nation cannot be run the courts. The complete abdication of responsibility by the political class is a major part of the problem.

No it doesn’t if they are not enemy combatants.

sharrukin on February 8, 2013 at 3:39 AM

The whole point is that any “offical” gets to decide what that means. In other words, it depends upon what the meaning of “enemy combatant” is, (think Bill Clinton) and “any offical” gets to use his own dictionary. After Benghazi, surely there will be no repercussions by oversight folks, will there?

Which is exactly why we started shooting British soldiers way back when.

Thank you, ma’am!

Shameful

Crickets from the lsm on this.. cnn onlyfocused on the cop killer in ca

For centuries, civilized societies have understood that even wars must be fought according to rules, which have developed over time in response to changing realities. Rules are even more important in endless, murky wars such as the fight against Islamist terror groups.

Quite right, we did!

We still do: they are called the Piracy Codes and they are still in the US Code.

Remember that Pirates are the Private enemies of the Nation, who are individuals or groups that declare themselves to be the final arbiters of their fate and who make war under no banner, under no government authorization, wear no uniforms, have no system of accountability save the battlefield which is their chosen realm of operation. Pirates had two sets of laws applied to them – military and civil. Those caught under military code had but to be demonstrated to be actively attacking the US or its people (or any Nation) or having taken part in acts of war against the US or its people, or to be a part of a group declaring itself for doing same. You got a summary execution upon determination of this – and it was usually done in the field.

As the organizations and individuals went on a list that was publicly known there were also public laws on the civil side to cover Piracy. Those laws required civil capture when a known Pirate was not actively performing acts of war on the US or its people either on his own or in coordination with a known Piratical group. If you were accused, that is to say made the list, you had the option as in the case of Capt. Morgan (the guy on the bottles of rum) to either flee or come back home to demonstrate your innocence. He went back home, cleared his name under law and was removed from the list (along with crew and ship) as they couldn’t know a war had ended when they made their sets of attacks.

This gets you doctrine (we acknowledge that there are Private enemies of the US that we can legally go after), puts the process in the hands of Congress (under its rule making ability for the military, for civil law and via the Letters language), and then there is due process when such Pirates are captured which is rough and summary in the battlefield or against those who have been given time to give themselves up peacefully, and on the civil side for those caught by normal citizens or police at home or on ship (unless there are Letters of Reprisal involved, thus allowing private citizens to render damages against the Private enemy).

Yes there are literally CENTURIES of law and cases GLOBALLY that pre-date the era of ‘terrorism’ for those dealing in terrorist activities. We are too modern, too smart and just plain too stupid enough to use them. See where that gets you? The President and cronies playing card games with ‘kill lists’ and then unaccountable behavior with unknown lists shielded from Public scrutiny. Oh, joy! Oh, rapture!

How deep does this modern age sucketh? Let me count the ways of Progressivism regressing our understanding of the world…

I’m serious. I read it in the Koran or somewhere . . .