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Drone Strikes

Both the ACLU and tea party groups cite the Fifth Amendment — which guarantees Americans due process of law under the Constitution — and they maintain that the classified program circumvents that right.
Do you agree with this? Or does treason open up the possibility of unauthorized strikes?

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  • Nonsubscriber comments are set to "Hide" Show this comment +

    Who makes the decision on who is an enemy of the State and signs his death warrant?

    Is the CIA an authorized death squad to fulfill that order to kill an American citizen?

    To answer your question, citizens are entitled to due process.

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      The President is sworn into office to protect us from all enemies, foreign and domestic. I'm asking if citizens who commit treason are protected by the 5th Amendment. Every President since Truman has used the CIA to eliminate threats to our sovereignty. If you were the President and you were presented with evidence that Timothy McVeigh was planning to bomb a federal building in Oklahoma City, would you wait for "due process" or would you proceed with an assassination?

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        Actually, the President does not swear an oath to protect us. He swears an oath, mandated by Article II. Section 1:

        “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the ***Constitution of the United States.***”

        [emphasis added]

        This is not a trivial distinction.

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        Come on Richard, you know that is just lip service.

        You don't uphold the constitution and rights given to the citizens by stomping all over these rights. Bush gave us the "Patriot Act", Obama gave us unconstitutional imprisonments and assassinations. And now he finds 2nd amendment inconvenient too... yeah that's our current government all right.

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        Yep. Once again, the quote from Judge Hand applies:

        "Liberty lies in the hearts of men and women;
        when it dies there, no constitution, no law, no court can save it;
        no constitution, no law, no court can even do much to help it."

        - Judge Learned Hand

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      • If I were President and I were presented with evidence that Timothy McVeigh was planning to bomb a federal building in Oklahoma City, I'd send agents to investigate, and prevent the bombing if possible, no assassinations required.

        But then, if I were President, I wouldn't have protected Lon Horiuchi after Ruby Ridge, and I wouldn't have burned down the Waco compound, so McVeigh probably would not have wanted to do the bombing in the first place.

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    Does the constitution give the president the right to decide who is an enemy of the State? Order execution of american citizens? Does the CIA have the legal power to perform those killings?

    All very important questions. Timothy McVeigh wasn't guilty of anything until Oklahoma City! The CIA has no power within the borders of the United States and they are an intelligence gathering agency, not a death squad.

    All this gets us back to my questions and to the answer I gave to the original question. Should Obama have killed Christopher Dorner before he went on his killing spree? How about Adam Lanza?

    What power in the Constitution gives the President this right to decide who shall live and who shall die?

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      I'm not an expert on the Constitution or much else. I'm an idiot. My gut tells me that there is reasonable room to say that the President has the power and the obligation to head off terrorism, both externally and internally. I'm guessing that the ACLU has no authority against the CIA. Or maybe they just don't know enough to object. When will Michael Moore make a movie about this?
      There was no CIA when Jefferson and Lincoln were around.

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    The Constitution does not give the President of the United States the power to order the assassination of an American Citizen without due process.

    Chavez has the power to form death squads who kill citizens on his orders. We have a Constitution that prevents such a thing from happening it's called "due process". We gave the"Blind Sheikh Omar Abdel-Rahman" due process and the prisoners at Gitmo due process and they are combatants.

    The ACLU brings law suits against the government and before the SCOTUS. That's their power.

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      I will gladly accede to you. If you are certain that you are correct. This is a question of law, not opinion. So if you are sure, then fine. But part of me thinks that you may be wrong.
      Someone help me out here. Does the President have the right and the authority to eliminate threats? Does he have to wait for evidence? Does intention signal desire and deed?
      What I mean is this: the Bible talks about the "rebellious son". He is a creature who leaves his family and embarks on a course of debauchery and discord. Are we obligated to honor him or behead him? The principle is the same in the secular world. Are we obligated to extend to him the courtesy of a trial or do we head him off at the pass?

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    There's a lot the President can do militarily, on a field of battle. No warrants or due process are required for an enemy that wears a uniform and serves a nation state.

    In asymmetric warfare, tactics can involve terrorism and battlefields can be far flung and without warning. The question you might want to ask is: What is the difference between a "war" and a "crime"?

    For crimes, the government must observe due process. Accusation is followed by trial, which is followed by verdict, which is followed by sentencing. Circumventing that due process erodes the rule of law and freedom.

    For war, the military attacks targets at will until the spokesmen for that nation surrender.

    The problem with a war on a tactic is that the tactic can't surrender, and you can't say you've reliably killed all its practitioners. Therefore, it becomes a war without end.

    If viewed as organized crime rather than war, you follow due process and remove the criminals as you can. It's inconvenient for law enforcement, but the advantage is that citizens retain their freedom and rule of law. The alternative is more Police State and more power for a few office-holders to assassinate with impunity, combat or not, citizen or not.

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      "On a field of battle"..."in a uniform". Only in those cases? Do we have other enemies, foreign and domestic? Is the President obligated to defend the Constitution only when we can point to the enemy and say, "there, that guy over there is an enemy!"
      What about when the enemy is sitting at a desk typing out a program that will sabotage our computer systems? Is he entitled to "due process"?
      Are we obligated to observe the rules of war according to the Geneva convention? What happens if we don't? Do we get to go to The Hague?
      I'm asking legal questions, not opinions. I'm not a constitutional scholar.

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    Comments on an article in today's NY Times:
    "Secrecy is poisonous to the rule of law. If another country were doing what we're doing we'd be outraged. And since the drone technology is reported to be pretty simple, how long can we expect to retain a monopoly?"
    Other countries are doing what we're doing. Israel for starters.We only become outraged when we find out about something. It's easier to ask for forgiveness than permission. Therefore Obama's proposal for more transparency is an afterthought. He will not change his practices any more than Michael Moore will become a member of the Tea Party.

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    Unconstitutional period.

    Rights are only rights if they stand even if they are inconvenient. If government can take them away without due process (as guaranteed in the bill of rights) than all we have is meaningless temporary privileges.

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    As far back as the revolutionary war we shot people for spying and disloyalty. This was part of our history since before the Constitution was written.

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    "What about when the enemy is sitting at a desk typing out a program that will sabotage our computer systems?"

    Good question. If cyber crime becomes a warfare issue without due process, what else will? These grey boundaries are the challenge. What about a citizen who speaks out in support of factions hostile to America? Is that "aid and comfort" or "free speech"? What about a citizen who "substantially supported al-Qaeda, the Taliban, or associated forces"? What will "substantially supported" mean? Who are "associated forces"?

    What would mark the boundaries where law enforcement would yield to military justice? Will all justice potentially be military justice - subject to indefinite detention without charge - because combatants in a "War on Terror" can be citizens, and be accused of terrorizing from anywhere, even in peaceful surroundings?

    What price security? What kind of America are we willing to live in?

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      I want to live in a safe America.
      It seems to me that pre-emptive strikes are a valid form of warfare. Especially when they minimize collateral damage. If we have the luxury of bringing someone to justice in a court of law (or a military tribunal) then it's more kosher. But our primary obligation is to protect and defend our lives and our soil. Due process includes getting permission from a judge. We have FISA for that. But even if we don't notify them ahead of time we are still obligated to eliminate the threat.
      Tell we what law we have violated by assassinating a traitor who is an imminent threat to American lives? Don't say "due process" because we have tacit permission from FISA.

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      • Nonsubscriber comments are set to "Hide" Show this comment +

        Do pre-emptive strikes make Americans safer? Are we including all secondary effects and unintended consequences? How many new terrorists are created?

        But as a libertarian, I'd agree that one of the primary roles of the federal government is national defense. We may disagree on the definition of a strong defense, or the advisability of competing strategies, but we'd probably agree that national security is a priority.

        Constitutionally, we know that Congress declares a war (or, since no nation's government claimed responsibility for 911, declares an "Authorization for Use of Military Force" to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons..."), the President prosecutes said...whatever-it-is.

        As for laws and executive orders, we could discuss prior executive orders 11905, 12036, and 12333 - but President Obama can issue his own executive orders countermanding those. And of course, when you ask 10 legal scholars this question, you get at least 12 answers.

        Though I might point out that when there is no battle in progress, there seems to be ample time for due process. Drone killings like those of a man eating breakfast, or his 16 year old son on his way to a barbeque might be easier, involve less risk to American soldiers, and might well have killed very bad people. But when measured against the precedent of American Presidents signing laws which claim the right to indefinitely detain citizens without charge on American soil, allegedly maintaining kill lists, and ordering executions of American citizens - I'm okay with requiring the military to work a little harder.

        I used to feel as you do and was a staunch supporter of Reagan's muscular policy of containment during the Cold War, so I sympathize with your point of view. But at the risk of going all Godwin, "trains running on time" isn't worth the down side to me.

        These are criminals. Track them down and prosecute them. Stop using "war" as an excuse for all manner of power grab. As the quote goes: "War is the Health of the State".

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      Cyber crime and all criminal activity is covered by due process, which requires prior notification to local, state or federal authorities such as FISA. In the old days you woke up a judge and got his permission. Nowadays you've got tacit permission as long as it can be defended afterwards by intelligence and policies that have been ratified by Congress (some classified, some not).
      The constitution forbids "unreasonable search and seizure". It does not forbid reasonable practices. No one is saying that the President is a dictator. He can be impeached if he acts contrary to accepted moral and legal standards. I mean for goodness sake he can be impeached for having sex in the Oral Office or for listening to a private conversation. It goes without saying that he can be impeached for assassinating innocent Americans.

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    Two questions have been repeatedly asked here:
    a. Who is an enemy?
    b. What kind of America are we willing to live in?

    If we start with the second one, although I'm not an American, I could make a reasonable assumption that you do want to live…
    Otherwise, 'the kind of America' would less bother you.

    And since you want to live, it brings us to the first question:
    Every entity, whether private, or corporate or state entity, that is declaring OR taking measures (not necessarily both) to KILL you, is an enemy.
    You have the right and the obligation (towards those whom you support and provide for) to kill him first.
    Drones are preferable, since less innocent people will suffer, and minimizing total damage is always important.
    Everyone who supports them physically, not just in heart & mind, but with any means, is your enemy's collaborator; you cannot let him live in peace and quiet, while building your enemy.

    Itzik Sivosh
    M.Sc., MBA

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    • Nonsubscriber comments are set to "Hide" Show this comment +

      How do you know when your enemy is coming to kill you? Due process requires that you have proof or at least a strong suspicion. "Unreasonable search and seizure". There are two counterarguments here:
      1) It's a slippery slope. It's an open invitation for the President to eliminate anyone who threatens his sovereignty. Remember George Bush's comment about Sadam Hussein as the "guy who tried to kill my daddy"? It's not personal; it's about principles.
      2) It's expensive and counterproductive to monitor, restrain, fight, fund, and advertise against the enemy. They are everywhere, especially in the Arab world.

      America isn't Israel. We hold the 1st Amendment to be holy. Israel has laws against incitement and an immediate threat in its back yard. In America, incitement results in investigation but not arrest. Al Sharpton would go to jail in Israel for some of the things he says.

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    You probably will be surprised to hear, Michael Kushinsky, that 'incitement' is 'none case' in Israel regarding imprisonment.
    Incitement was not even a sustainable case by court in order to suspend a theatre show...

    Answering your question, Michael, 'how do you know when your enemy is coming to kill you' in one word it will be 'intelligence'.
    In three words 'intelligence, including drowns'...

    What you do next has been well answered by you saying:
    'If you were the President and you were presented with evidence that Timothy McVeigh was planning to bomb a federal building in Oklahoma City, would you wait for "due process" or would you proceed with an assassination?'

    There is no need to over-complicate things.
    Itzik Sivosh

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    • Nonsubscriber comments are set to "Hide" Show this comment +

      Thank you for clarifying. I always wondered how incitement was to be dealt with. When I lived in Israel I went to Kach meetings (before it was outlawed).
      America is learning that you must be proactive when it comes to terrorism. Intelligence is essential.

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      • Nonsubscriber comments are set to "Hide" Show this comment +

        Some 'Kach' members were proactive indeed (before it was outlawed), and I think we've already agreed that waiting for "due process" could cost you dearly...
        In the history of Israel very few organizations have been banned, although quite many are preoccupied with what you may define as 'incitement'.
        Incitement is the price you should be willing to pay for Democracy.
        I personally believe that incitement could and should be dealt by confronting it with hard-facts.
        Banning should take place in very extreme situations only.

        Terrorizing authors, writer, speakers (having labeled them as an "enemy") is an important issue.
        Cyber-terrorizing (having witnessed and personally being experiencing it) is alive & kicking.
        It makes me really wonder how tolerant (or perhaps afraid?) people are…
        Everybody else is welcomed to comment:
        http://online.wsj.com/community/groups/waging-war-against-terrorism-1339/topics/cyber-terrorism
        Thanks Michael, for letting me to 'self-promote' this idea.
        ;-)

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