Obama to give drone documents to Congress

Here is an excerpt from a story being reported by CNN.

Amid new controversy over his administration’s targeted killing of American citizens overseas by drones, President Barack Obama has yielded to demands that he turn over to Congress classified Justice Department legal advice seeking to justify the policy, an administration official said.

The president’s move comes on the eve of confirmation hearings Thursday for his CIA director nominee John Brennan and amid complaints from senators, including several Democrats, about secrecy surrounding the drone policy.

I would like to point out a little fact that some people overlook.  When a U.S. citizen is outside of U.S. jurisdiction, that person does not have the protections provided by the U.S. Constitution or U.S. laws unless a treaty says otherwise. For example, if a U.S. citizen in Afghanistan were to commit murder, then that person would not be able to demand his Miranda rights, because Miranda rights (to the best of my knowledge) aren’t applicable outside of U.S. jurisdiction.

Now, I could be mistaken on this point. However, if I am correct, then a U.S. citizen who is outside of U.S. jurisdiction may not have any constitutional protection against a drone attack taking place outside of the USA.

Suppose that during WWII a person born and raised in the USA had donned a German army uniform and aided the German army in fighting against Allied troops (as depicted in the HBO miniseries Band of Brothers). Would it have been illegal for U.S. soldiers to shoot and kill that particular American wearing a German uniform? No, of course not, because the person would still be an enemy combatant regardless of where he was born and raised.

So, if a person born and raised in the USA were to move to another nation and begin participating in terrorist activities aimed at harming the USA, then that person would still be an enemy of the USA. What then would be the legal difference between killing such an enemy with an army rifle and killing the person with a drone?

Now, some people are criticizing the use of drones to kill people because a 16-year-old person born in the USA was allegedly killed by a drone by mistake. Supposedly the person killed was a child of a person who was aiding terrorists. How is the death of that person any different when compared to the deaths of German civilians during WWII?  During that war, plenty of civilians were killed when American aircraft dropped bombs on targets in Germany.

Again, I am not a legal expert, and I could be mistaken about the facts. Yet, I cannot at this time criticize the use of drones to attack terrorists who are residing outside of U.S. jurisdiction.

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Posted by on February 6, 2013.
Filed under Barack Obama, Breaking News.
Tagged with: .
A refugee from Planet Melmac masquerading as a human. Loves cats*. In fair condition. A fixer-upper. Warranty still good. Not necessarily sane. [*Joke in reference to the TV sit-com "Alf", which featured a space alien who liked to eat cats. Disclaimer: No cats were harmed in the writing and posting of this profile.]

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  • jim_m

    When a U.S. citizen is outside of U.S. jurisdiction, that person does not have the protections provided by the U.S. Constitution or U.S. laws unless a treaty says otherwise.

    While I will agree that a US citizen does not enjoy the protection of the US Constitution when they are overseas because foreign governments are not bound by our constitution, a US citizen ALWAYS enjoys protection of the US constitution from the US government.

    My rights to due process from the federal government do not go away because I cross the border. My rights to seizure of property do not cease because I go out of the country and leave my home and car here. My rights to self incrimination do not cease because I travel to Canada.

    However, a US citizen who takes arms against his country anywhere commits treason. On a legitimate battlefield overseas a US citizen can be treated as an enemy combatant. The question is whether the use of drones extends beyond a legitimate battlefield. There is a legitimate question as to whether or not the US government is pursuing people beyond the battlefield. The problem is that the most transparent administration in history (transparently corrupt that is) has not been forthcoming with a reasoned explanation of their actions.

    • Commander_Chico

      Agreed!

      • retired.military

        You cant waterboard them but you can kill them.

        • mikeNZ

          good point

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      If a U. S. Person wages war against the United States outside of the jurisdiction of the United States they are just another enemy combatant, subject to being engaged with deadly force.

  • MartinLandauCalrissian

    Lordy how he’d love to start targeting Americans here!

  • 914

    Skynet in the works..

  • herddog505

    I suggest that the real problem here is hypocrisy: after nearly eight years of hysterical crying about that nasty ol’ George Bush and his illegal war, “chill winds of fee-ah”(1), imperial presidency, and US troops “just air raiding villages and killing civilians”(2), it’s a bit hard to swallow not only that Barry is taking unto himself the authority to kill anybody (including Americans) whenever it suits him, but that lefties seem to be perfectly fine with it.

    Now, IS it OK for the US government to kill US citizens without due process? It seems to me that, in some cases, it obviously is. As David Robertson points out, we wouldn’t balk if a citizen-turned-AQ terrorist went to hell with a 7.62mm headache, and we wouldn’t lose too much sleep if the children of a terrorist were “collateral damage” in a bombing raid or drone strike.

    Something that’s bothered me about the WoT from nearly the beginning is a lack of rules: how long CAN we keep people in Gitmo? CAN we do “renditions”? When CAN the president order US forces, whether a drone, bomber, SEAL team, etc., to kill – assassinate – specific people, including US citizens? Congress has, I think, stoutly refused to address these issues, and Bush and Barry have not exactly pushed them to do so. So, we are where we are: where waterboarding is BAAAAAD… when a Republican does it…. and drone strikes are BAAAAAAD… when a democrat does it.

    It’s a helluva way to fight a war.

    ===

    (1) http://www.commondreams.org/views03/0416-01.htm

    (2) http://www.youtube.com/watch?v=wrW4fOGIMVY&feature=player_detailpage

    • Commander_Chico

      The hypocrisy goes both ways – I bet if I delved into the Wizbang archives from before 2009, I’d find all kinds of defenses for the worst kinds of abuses.

      • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

        Get cracking.

        • 914

          7 hours has availed naught I see.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Surprising no one whosoever…

      • herddog505

        Perhaps, and perhaps not.

        Speaking for myself, I like to think that I’ve been fairly consistent: I want terrorists dead. If they’ve got information that we need – or we THINK they’ve got information that we need – I’m not too concerned on how we go about getting them to part with it. I’m also not too concerned with Barry killing them with drone strikes, air strikes, special forces raids, or any other method that gets the job done. I’m not keen on the Patriot Act as it seems to me ripe for abuses, and I’ve come to despise the TSA as little more than a goon squad.

        As I wrote above, the real problem I have is the hypocrisy: it was terrible for Bush to do it, but OK for Barry to do it.
        LiberalNightmare also makes a good point:

        How does obama justify killing some terrorists with military action while attempting to try other terrorists in federal court?

        • jim_m

          The left believes in selective application of the law. There is no need for consistency when you have defined the law as to only apply when you want it to and only to those you want it to apply to.

          • Commander_Chico

            Like the laws against torture and eavesdropping without a warrant?

          • jim_m

            I was specifically addressing Herddog’s quote of Liberalnightmare, which asks why is it OK to kill some terrorists where if they are captured they somehow deserve a court trial as though they were civilians.

            When Bush was in power the left considered terrorists civilians and claimed that they had civil rights. Now that the left is in power they declare that terrorists are combatants and can be killed anywhere, anytime in any manner they choose.

            This corresponds to my point that the left believes in selective enforcement of the law determined solely by their political bias and ideological aims.

    • JWH

      The lack of rules most trouble me, too. Personally, I would have classified the lot of prisoners in Gitmo as prisoners of war, to be treated consistent with the Geneva convention, and to be released at the conclusion of hostilities.

      Of course, the definition of “conclusion of hostilities” would have meant “al-Qaida completely gives up,” which we know won’t happen …

      • herddog505

        That’s another part of the problem. There’s no central authority (government) that can, on behalf of all its combatants, surrender to us, be held accountable if that surrender isn’t honored, or otherwise control any of these yahoos who decide that it’s just a great idea to start shooting at Americans.

        I suggest that this is part of why the GC has requirements about who is a “lawful” combatant. It is certainly bedeviling us. For my money, anybody taken in arms against the United States or plotting violence against them who is not a member of a uniformed service of another country or not otherwise considered as a lawful combatant (such as a member of a levee en masse) should be considered a spy, tried by court martial for that offense (with the various procedures and protections set forth in the UCMJ and similar documents), and, if convicted, shot to death.

        • JWH

          I dunno about shooting them to death, but a long prison term (or whatever is prescribed in the UCMJ seems fair). And regardless of who’s president, I still dislike the military commissions. In the first place, they seem to lack the same protections as a UCMJ trial, and in the second place, the rules seem to change from moment to moment. Why couldn’t Congress have extended the UCMJ where necessary to take care of (in more sense than one) the terrorists?

          • herddog505

            Spies / saboteurs —> shot to death. Hanging is an acceptable alternative. I believe that the military has long-standing, tested procedures for how to go about trying suspected spies / saboteurs, and they should follow them.

            Otherwise, I agree: the Congress has been thoroughly negligent in this matter. No surprises: that worthless pack of feckless, cowardly opportunists figured out early on that it’s a far better thing to let the president (whoever he is) do the dirty work, leaving the field free for them to praise, criticize or stay mum depending on the daily political winds.

          • JWH

            Otherwise, I agree: the Congress has been thoroughly negligent in this matter. No surprises: that worthless pack of feckless, cowardly opportunists figured out early on that it’s a far better thing to let the president (whoever he is) do the dirty work, leaving the field free for them to praise, criticize or stay mum depending on the daily political winds.

            There’s about two hundred years worth of that feckless, cowardly opportunism. We have an imperial presidency today in part because Congress, from the very start, has been all too willing to cede its powers and perquisites to the executive branch.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            The traditional punishment for being an illegal combatant is death, JWH. And the tribunals pass muster under Geneva III.

      • http://www.rustedsky.net JLawson

        That would be my read on it also. But the problem is that we’re not fighting a conventional war, and the folks taken into custody won’t be either uniformed or carrying a Geneva Accords approved ID. So they can be treated like non-uniformed combatants, which should get a short trial and a quick execution, or assets which MIGHT be of informational value down the line.

        Release ‘em, and they’ll be back fighting in short order. Keep ‘em, and they’re harmless… but usable cannon fodder in political infighting.

        It’s a mess, and not one with a clear solution… only options that suck..

      • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

        They didn’t pass the test of Geneva III Article 4 and thus do not merit treatment as Prisoners of War as they are illegal combatants. Being an illegal combatant is a war crime in and of itself traditionally punished by execution.

        The indefinite duration of hostilities and thus detention of the illegal combatants is on their own heads.

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      Captured enemy combatants are detained by the belligerent power capturing them until the cessation of hostilities, or (at the discretion of the capturing power) they are traded for prisoners held by the enemy, tried for war-crimes or released, all at the discretion of the capturing power.

      That’s been black letter international law since before either of us were born.

  • Vagabond661

    So, if you are classified as a terrorist and live overseas and are considered a threat, you can be killed with a drone strike? And if you are a classified as a terrorist and live in the US, can you also be killed by a drone strike?

    And how many google hits can you get from typing in “compared Republicans to terrorists”? How about “compared tea party to terrorists”?

    How about this from Harry Belafonte:

    http://www.foxnews.com/entertainment/2012/12/14/harry-belafonte-msnbc-criticized-over-jailing-republicans-remarks/

    Add the war on old white guys and the assault on the Second Amendment, and the picture gets clearer and clearer.

  • jim_m

    When I read the headline about “Drone documents” I thought you were going to say that he is sending copies of his speeches to Congress.

  • LiberalNightmare

    Sounds alot like the way the bush administration justified the practice of setting up secret cia prisons in out of country locations.

    I sorta kinda remember a lot of our local leftards having problems with that practice. Its nice to see that they have moved on.org

  • Jwb10001

    If a US citizen is fighting on an active battlefield and is killed by military action, he got what he had coming. In the case of target assassination, using drones in a country where we are not actively engaged, seems to strain the point. This action looks to me like a hit not a military casualty. And yes Chico I know Bush is a really bad guy, but could we please move on to current events?

    • jim_m

      Oh, but any single wrong committed by any GOP President at any time justifies ALL wrongdoing by a dem president for ALL time. If Bush once stiffed a waitress on a tip it justifies the assassination of political enemies by the dems.

    • http://www.rustedsky.net JLawson

      To the ‘progressives’, the past is never past.

    • mikeNZ

      Bush is no worse than Clinton and probably even better than Obama methinks

  • JWH

    I would like to point out a little fact that some people overlook. When a U.S. citizen is outside of U.S. jurisdiction, that person does not have the protections provided by the U.S. Constitution or U.S. laws unless a treaty says otherwise. For example, if a U.S. citizen in Afghanistan were to commit murder, then that person would not be able to demand his Miranda rights, because Miranda rights (to the best of my knowledge) aren’t applicable outside of U.S. jurisdiction.

    My head hurts. A person who is outside US jurisdiction doesn’t get his Miranda rights, etc., because a murder he commits there falls under the jurisdiction of the local government, thought there are exceptions. For example, if an American citizen is in Paris and he assaults a mime, he is going to face a French court and French laws regarding the protection of mimes. American law does not apply because it does not bind the French government.

    Now, if he is inside the US embassy in Paris and assaults a French mime, I’m not sure how things would play out. But there, the United States would have a claim of jurisdiction based on territoriality and he would receive US legal protections. But (I’m not sure here) the French government may claim that because a French mime was assaulted, he should be tried under French law, and the French government would then petition for extradition.

    Suppose that during WWII a person born and raised in the USA had donned a German army uniform and aided the German army in fighting against Allied troops (as depicted in the HBO miniseries Band of Brothers). Would it have been illegal for U.S. soldiers to shoot and kill that particular American wearing a German uniform?

    It’s a different context. In that case, laws of war (not criminal laws) apply. He’s in a theater of war, wearing the local uniform, and fighting on behalf of another nation-state.

    That’s why the drone strike question is so tricky. It’s at the nexus of some conflicting laws and questions that seem to be answered by the exigencies of the moment, not by hard and fast principle. The questions are:

    Is terrorism a crime or an act of war?

    If terrorism is an act of war, where is the theater of war?

    And they get more complex from there.

    So, if a person born and raised in the USA were to move to another nation and begin participating in terrorist activities aimed at harming the USA, then that person would still be an enemy of the USA. What then would be the legal difference between killing such an enemy with an army rifle and killing the person with a drone?

    Depends. Is he in a theater of war or not? And what is the opinion of the host government? And more interestingly, do the laws of the host country or the laws of the United States apply?

    My own opinion is to classify such things as closer to acts of war than anything else, and to rely on the good graces of the host government. If the government of Yemen is OK with us using drones within its sovereign territory, then we can use drones within its sovereign territory. And I, personally, tend to classify terrorism closer to an act of war than a crime. And if a US citizen has thrown his lot in with al-Qaida, then as far as I’m concerned, he deserves whatever happens to him.

    Now, people seem to forget one thing. If Anwar al-Awlaki wanted to be protected by US laws, all he had to do was surrender. That is, he could have negotiated a surrender with representatives at the local embassy, turned himself in, and said, “I am a US citizen. I claim the protection of US laws. The government may put me on trial for terrorism.” And his lawyers and family could have kept the gov’t honest by keeping public attention on his situation.

    • http://www.rustedsky.net JLawson

      “And if a US citizen has thrown his lot in with al-Qaida, then as far as I’m concerned, he deserves whatever happens to him.”

      Yep. No loss at all.

      • LiberalNightmare

        Still, we have to remember that the democrats in general have claimed that terrorism is a criminal matter.

        While i have no problem with the idea of killing terrorists regardless of where they happen to be born, i find the administration to be guilty of having thier cake and eating it too in this case.

        How does obama justify killing some terrorists with military action while attempting to try other terrorists in federal court?,

        • http://www.rustedsky.net JLawson

          By creating two different classes of terrorists.

          There’s the good ones, caught under Bush. THEY are an endangered species, akin to the Spotted Owl, and must be protected fiercely and let free as soon as possible.

          There’s the bad ones, that Obama can kill.

          Once you wrap your mind around the concept that Democrats can’t do anything wrong (witness Hagel not being hounded out of DC for stuff that the Democrats would be insisting any Republican with even a whiff of if would be run out of town on a rail.. seriously, child prostitutes?) – then the current insanity is much more understandable.

          • LiberalNightmare

            Funny how the “bad” terrorists are americans and subject to execution without due process.

          • jim_m

            When Bush was President they were merely dissenters. Disagreeing with his holiness, President obama, is sedition and acting upon that makes these people traitors now that obama is President.

            If the GOP wins the White House back these same people will become dissenters once more.

          • http://www.rustedsky.net JLawson

            Isn’t it, though…

      • JWH

        But what is your take on Parisian mimes?

        • http://www.rustedsky.net JLawson

          Don’t let children wander into mimefields, Parisian or otherwise. I prefer this sort of thing for setting them off prematurely.

          http://en.wikipedia.org/wiki/Mine_flail

          Unexploded mimes are a blight on humanity…

  • SteveCrickmore075

    When Brennan claimed, as he did in 2011—clearly referring to the drone campaign—that “there hasn’t been a single collateral death,” he was most certainly wrong.

    President Obama’s top counterterrorism adviser, John Brennan, and a close confidante of the President, referring to the drone program “there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities we’ve been able to develop.”

    Brennan is a complete lying jerk, therefore the perfect Obama choice to be the director of the CIA, since that seems to be the first requirement of a CIA director, to lie to protect the President.

    • jim_m

      Careful Steve. You are criticizing obama. Someone is going to have to call you a racist soon.

  • Paul Hooson

    This drone program to strike back at terrorists has been one of the most successful military policies of this administration. Al Qaeda has suffered losses of most of their top leadership through this drone program, where even the top remaining Al Qaeda leader, Dr. Ayman al-Zawhiri, recently recruited his own brother to unsuccessfully seek a peace treaty with the United States because he fears so much for his own life. For years, Al Qaeda killed people through sneaky surprise attacks. Now, their top leadership has suffered huge losses by sneaky high tech surprise attacks coming out the sky. Poetic justice to these bad people.

    • Commander_Chico

      I would like to see Al Zawhiri dead, true.

      • retired.military

        Just not waterboarded to fnid out valuable intel.

        • Jwb10001

          Waterboarding a fate worse than death, evidently.

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      Engagement of terrorists with UAV’s did not originate with this maladministration, they were merely expanded by it.

  • herddog505

    I was reminded today:

    Remember when lefties ASSURED us that, when Bush was engaging in “warrantless wiretaps” and tracking terrorist bank accounts and so forth, that “the terrorists had won” because we’d sacrificed our civil liberties?

    Hypocrisy, thy name is Lefty.

    • JWH

      I still believe that the warrantless wiretaps are suspect. Of course, now neither Democrats nor Republicans want to hear from folks like me. And honestly … I’ve gotten tired of complaining about it.

      • herddog505

        I can certainly see the hazard in warrantless wiretaps (or warrantless anything, for that matter), but I don’t worry too much about it so long as it is confined to “wartime” matters; in my mind, attempting to intercept terrorist phone calls is no different than trying to intercept German or Japanese or Soviet radio traffic and therefore doesn’t require a warrant. O’ course, who’s providing oversight to ensure that this is ALL that’s being done, and that the phone calls of (for example) Sarah Palin or Wayne LaPierre or George Soros or Dick Trumpka aren’t being intercepted? For reasons of national security that we can’t discuss, of course.

        As for nobody wanting to listen, it seems to be the lot of American citizens generally unless they’ve got a big, fat bankroll that they’re willing to spend on politicians who are Honest Public Servants(TM) or else have some sort of public influence that they are willing to exert for similar noble purposes.

        • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

          Is it reasonable that United States persons be able to privately communicate with forces engaged in waging war against the United States?

          • herddog505

            No, but it’s also not unreasonable to ask the the government get a warrant before deliberately eavesdropping on the communications of American citizens (or blowing them away with a Hellfire missile, for that matter).

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Considering that such are discovered, as a rule, from eavesdropping on those enemies of the United States and then checking on who those enemies are communicating with, that would be an unreasonable burden.

            Note also that the exclusionary rule would still be in play.

          • JWH

            Your question is flawed, Rodney. The problem is not eavesdropping on conversations “with forces engaged in waging war against the United States.” The problem is eavesdropping on conversations that ,might be with forces engaged in waging war against the United States. You have a warrant requirement in place, even if it’s FISA warrants, to require prosecuting authorities to justify to an at least nominally independent tribunal that eavesdropping on the conversation is, well, warranted.

            Although the precedent has been distinguished a few times, the prevailing standard in such things is that a warrant is required for searches when a person manifests a subjective expectation of privacy that others would find objectively reasonable.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            The standard, per the Fourth Amendment is *Reasonable* vs “Unreasonable.” The traditional remedy (“Exclusion”) remains in play.

      • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

        Let’s go to the Source:

        Amendment 4

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        Is it reasonable that United States persons be able to privately communicate with forces engaged in waging war against the United States?