Balkinization  

Thursday, March 07, 2013

Sitting at a cafe in Houston...

Mark Tushnet

I've finally been driven bonkers by the quality of the discussion on the left about drone use against US citizens within the United States. OF COURSE it's constitutionally permissible for executive officials to take actions against a US citizen on US soil that either (a) predictably will lead to the citizen's death or (b) are intended to kill the citizen. (Drones are completely irrelevant to the constitutional question. Snipers using rifles raise the same question. And, in this post I'm talking only about the Constitution; there are statutory limitations on who can do the killing -- for example, not the CIA -- but I'm not going to deal with them.) The only interesting questions, and they aren't all that interesting, deal with when it's constitutionally permissible to do so -- and, secondarily, with what processes do the officials have to go through before they take the action.

Start with a simple example where we know that executive officials can do (a) or (b). Two FBI agents just happen to be outside a bank when they see a couple of guys rush out of the bank with guns and sacks of money, and jump into a car. Believing that they've just observed a bank robbery, the FBI agents pursue the two guys. Ask them later what they were doing, they'll say, "Trying to catch a couple of robbers." In the course of the pursuit, and still trying to catch them, they shoot out the escape car's tires -- in circumstances where it's really likely that the result will be a crash in which the (suspected) robbers will die. (That's case [a] above.) Does anybody really think that they can try to shoot out the tires only if they manage to call a judge and get authorization as the chase is going on? Or that, if they can't shoot out the tires without being sure that the (suspected) robbers will survive, they have to let the robbers get away?

Now, for case (b): The escape car is weaving in and out of heavy traffic, and the crashes it's causing are beginning to pile up, with lots of people being injured and some possibly dying (although the FBI agents can't be sure about that). To stop the carnage, the agents shoot out the escape car's tires, with only the faintest of hopes that the car's occupants will survive -- and, in fact, if you asked them later, they'll say, "We didn't care whether the robbers lived or died, we just want to stop them." Although some philosophers might quibble, I think we ought to say that, under those circumstances, they intended that the robbers die -- that is, they intended to kill them. (And, frankly, I don't think the philosophical quibbles have any real bearing on the drone/terrorist cases that people are exercised about. In the cases I'll describe, the executive officials either want to capture the suspected terrorists but expect that in the effort to do so the terrorists will die, or are indifferent to whether the terrorists live or die.)

The scenarios I've described have two characteristics: (1) The FBI agents have a high degree of confidence in the information they're acting on even though that information hasn't been evaluated by a judge -- or even, in the scenarios, by a supervisor in the FBI field office. But, a high degree of confidence isn't certainty -- maybe they've interrupted a staged scene for a movie, or some sort of weird prank. (2) There's a high degree of temporal urgency to taking action, so consultation with a judge is as a practical matter impossible. What's needed to support the OF COURSE answer are parallel characteristics in the terrorism case.

So, suppose the FBI has been conducting authorized surveillance (processed through a judge) on a domestic terrorist of the Terry Nichols sort. They've gathered a fair amount of information that leads them to suspect, with some confidence, that he's planning a terrorist bombing, but the quality of the information isn't quite good enough for them to be able to arrest him and be confident that prosecutors could secure a conviction. So, they're waiting for the last bits of information to come in. Unfortunately, they accidentally lose track of the suspect for a full day. Then they get a phone call from someone they relied on when they went to the judge for permission to wiretap, etc., who tells them that the guy's on the road right now in a van loaded with explosives, within thirty minutes of arriving at his target. The informant tells them the suspect's route and the intended target. That's enough to justify arresting the guy, but thirty minutes isn't enough time to lay the case out to a judge. So FBI agents do what they can to stop -- and arrest -- him. They might put up a roadblock on the route. If the suspected terrorist tries to run the roadblock, though, there's a very high chance that the van will blow up and the suspect will die (case [a] again). But, suppose there's no time to put up a roadblock, but there's time to put a sniper at the target site. As the van approaches the target, the sniper shoots the van driver. Again, I'm quite confident that the sniper and the FBI haven't violated the driver's constitutional rights -- even though, once again, there's some chance that the information they're acting on is wrong.

So, why hasn't the Obama administration said what I just did? Well, first of all, I think it has, when you put together all the statements they've made. They've talked about imminence, for example, in ways that make it clear that they're defining imminence in relation to the ability to arrest (or capture, when dealing with questions about terrorists outside the United States). Second, the more sophisticated critics have said they their primary concern is transparency, that they don't know the circumstances under which the administration believes it wouldn't violate the Constitution to target a US citizen on US soil. But, I doubt that the administration could fairly say more than something like this: "We think we can target people after we've done our damnedest to assure ourselves that the targets do in fact pose an imminent threat to domestic security, and when we've done the best we can to rule out the possibility that we can stop them by arresting them in circumstances where there's a relatively low probability of doing so safely." Ask for more than that, and all you'll get is, "Circumstances vary so much that we can't say anything more precise."

I'm allowing comments, and will update/respond if people point out problems with or gaps in what I've written.

Comments:

Mark,

It strikes me that what you're describing are scenarios where qualified or sovereign immunity would shield the FBI and its agents from liability, not ones where rights are not violated.
 

"The left" here means Rand Paul, Ted Cruz and the like, I presume?
 

Isn't the issue with how the administration conceptualizes the imminence of a threat to domestic security? Philip Alston's report for the UN chastises the US (among other states) for not disclosing how it reaches its conclusions about targets; however, there is reason to believe that signature strikes are based on patterns of activity and association with threatening organizations rather than the more obvious targets in the FBI example. That being said, I am in agreement with the premise that our national discourse concerning drones and targeted killings leaves something to be desired.
 

While I agree with you regarding the drone aspect as being largely irrelevant to the constitutional analysis, I have to agree with Prof. Magilocca.

The bottom line here is that if the government has the time to get someone to a "cockpit" center, have a drone takeoff, fly to the suspect, and shoot him with the drone, it is very unlikely that this the suspect was an "imminent" threat. I understand your relative/contextual use of that term, but the point of Tennessee v. Garner is that if there is probable cause to believe the suspect will be a serious threat of death or physical injury to others AND no other reasonable alternative, then killing him is reasonable under the Fourth Amendment.

Your hypo might not admit of any alternatives, but it is very unlikely that the use of a drone will ever actually be a faster option than a sniper in a helicopter. In that sense, your hypo may actually prove too much.

Incidentally, the fear of drones for domestic purposes is that because their operators are further removed from the context of their surroundings, the inhibitions that an officer might normally have will be eroded. In a war, most citizens seem to be okay with this shoot first and ask questions later approach. But, as I recall, even the citizens of the Roman Republic had a rule that legions should disband before entering Italy.

This practice reflects common sense: citizens don't usually like it when their homes and towns are treated in a similar manner to a battlefield. Posse comitatus and all that. I suppose you could say that police forces are indeed paramilitary operations, but you rarely see policemen using things like tanks or planes.
 

Can't you make the same arguments against the Fourth Amendment, which is, Trust in the judgment of the police?

The transparency issue is not merely technical or sophisticated. It is a material issue. The other issue, as stated in another comment, is that a drone strike is not a simple push of a button akin to pulling a trigger of a gun in a chase. The analogies therefore do not apply.

Obama's defenses so far read as if they have decided to support the positions of John Yoo and Jay Bybee-- and that is what upsets those of us on the "left" and those on the right who are, on this issue, civil libertarian, such as Cruz and Rand Paul (never mind, for just this moment, where they fall into far more oppressive stances when it comes to reproductive rights). Not much hope and change going on in this realm...
 

"The scenarios I've described have two characteristics:"

Got other characteristics, and they're critically important: That it happened isn't secret. If you didn't like what happened, a court would have jurisdiction to hear your complaint. Witnesses could be called, and evidence gathered. A proceeding involving somebody other than the police chief could follow.

Aside from an engineer's fascination with technology, I don't care about the drone, snipers and guys with sharp knives carry the same concerns.

When Lon Horiuchi shot Vicki Weaver as she stood in a door holding her infant, it wasn't a secret. Legal proceedings followed. They were interrupted by a BS procedure to prevent a fair trial, but there WAS a trial, and everybody who cares to knows Horiuchi shot her, and can discuss the implications.

When somebody who isn't public enough that their death will raise a stink irritates the President, and gets taken out, under current policy we won't know it happened, we won't be able to take it to court, if we do the court won't be able to collect evidence.

The only due process, according to the administration, is "Trust me!". THAT is the problem, not the use of a drone. The drone just gives us an occasion to have a conversation we should have had years ago, and in a better world, shouldn't have needed to have.
 

While the matter addressed by this post focuses upon US citizens within the US, what about "persons" within the US who are not US citizens being entitled to due process under both the 5th and 14th Amendments?

With regard to the meaning of due process of law, it is not solely a matter of determination by a court before actions may be taken by government officials. Of course courts may become involved after such actions to determine whether such actions complied with due process of law. And there are matters of immunity, absolute and/or qualified that may be available to government actors for relief from liability. With transparency, including via the First Amendment speech/press clauses, such actions can lead to government accountability (which may or may not result in justice). Advances in technology can make a complex issue even more complex.
 

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I've been reading Balkinization for about 5 years, and this is the first time I recall ever agreeing with Brett. For what it's worth, I want to add a bit to his very-cogent points.

In the scenarios Prof. Tushnet describes the government would readily admit the factual predicates of what happened, in court. It certainly would not claim that it could not comment on whether, the sniper/FBI team/SWAT/whatever existed!

W/R/T drones, targeting, etc., the administration (even after the leak of the targeting white paper) has still refused to even officially acknowledge the existence of the drone program. See, e.g.:
http://www.guardian.co.uk/commentisfree/2013/feb/14/cia-aclu-drone-secrecy

As people I'm sure recall, during the Christopher Dorner manhunt the LAPD shot at the wrong truck. http://hypervocal.com/news/2013/lapd-manhunt-shoots-wrong-truck/

If the drone/FBI comparison were meaningfully comparable, the City of Los Angeles would go into court and claim not to be able to confirm or deny that there is such a thing as the LAPD, or that if there WERE such a thing or what procedures they might use (and whether or not they were correctly followed) in determining whether or not to shoot at those unlucky women.

Naturally, of course, no such thing happened. We knew there was a manhunt, LAPD obviously defended itself by an explanation of the situation, and while there was grumbling, it wasn't a particularly tall threat to constitutional or legal order. Now imagine that some dark-uniformed group no-one ever heard of, with unidentified officers, etc., had been the ones shooting at that truck. And nobody from LA's government, or CA, or the feds, took responsibility for those shooters or confirmed that it happened or whatever.

That to me strikes me as roughly the same as the drone controversy right now.
 

I agree with Mitchell. Killing Awlaki (or his 16 year-old son!) hardly seems like a "fleeing bank robber" or "bomber en route" type scenario. I mean, there was plenty of time beforehand for Awlaki's family to file suit, challenging his inclusion on the kill list.

I also agree with Brett...in our hypothetical "fleeing bank robber" or "bomber en route" cases, the federal agents could be sued afterwards. So there is at least an ex post facto judicial review. Not so with these drone strikes.

I think it was perfectly reasonable to ask if Obama thinks he can carry out an Alawki-type drone strike inside the United States.
 

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Drones raise certain difficulties different than a person with a knife and no the President is not just saying "trust me." There are various things involved here including the rules of war, legislative enactments and so forth though yes possible misuse of power get more attention when people more people care about are harmed.
 

I don't quite understand what Scott means by:

" ... the federal agents could be sued afterwards. So there is at least an ex post facto judicial review. Not so with these drone strikes."

If judicial review (but not involving an "ex post facto" law?) is available after actions by federal agents against a US citizen in the US, why such review would not be available in connection with drone strikes in the US against US citizens? Is there a constitutional or statutory proscription in proceeding against those federal personnel involved with drone strikes against US Citizens in the US? (Immunity is a separate matter, as such may be available to the federal agents.)
:
 

I'm sorry for any confusion. By "ex post facto" I meant that a lawsuit would involve a judge examining the government's actions after the fact, not that an "ex post facto" law was involved.
 

You said that officers should be able to shoot out the tires of the fleeing suspects. I disagree. The standard police procedure is to pursue the bank robbers and not shoot or ram it unless there is a reasonable amount of assurance that bystanders will not be injured by doing so. And even then, the police will break off "close" pursuit and monitor from a distance, staying nearby, but not right on their heels. This is based on the reasonable assumption that the suspects are driving dangerously precisely because they are being so hotly pursued. Shooting out the tires in an area with bystanders is an extremely dangerous method of stopping a car. Police only employ this method when there is a) virtually no risk of the public being injured by an out of control car careening off the road because their tire has been blown out and b) the suspects are approaching an area where there is the strong potential for bystanders to be killed or injured.

Law enforcement would not do what you say because it would likely result in unnecessary injuries and death and therefore be an unnecessary use of force. They would wait for an opportunity to move in on the suspects that would not result in bystanders being hurt. Incidentally, this non-cowboy method usually results in the suspects avoiding death and injury as well. People generally give up rather than face certain death fighting when they see they have no chance of escape. Shooting at them while they are weaving around traffic does not do that - it only causes them to drive more recklessly. This is why the police never do it. This protects the civil rights of both bystanders and suspects by using lethal force only when it is the only possible option left.
 

Regarding the suspected terrorist with the van full of explosives - If they have enough time to put a sniper at the target site, they have enough time to send police to intercept the suspect en route. Of course, you never mentioned what the "target" is, so I suppose if that target was a remote lodge in the wilderness occupied by a group of retired Army snipers, you may have a point.

But to get to the meat of your argument - The government has the authority to kill someone who is about to kill someone else - yes of course they do. If two FBI agents witness a man standing over a prostrate person pointing a gun to his head, the agents would be justified in shooting the armed man. That is an "imminent" threat of certain murder. Driving recklessly does not rise to that level and does not mean you should be killed, especially since alternative means of apprehension exist. Driving a van potentially filled with explosives *might* rise to that level, depending on the "target" and if you truly cannot muster the resources to intercept the van en route (an extremely rare event that would be very hard to justify), yet somehow have a spare sniper at the target location but who also is unable to intercept the van.

Drones are not snipers, but the way. They are not precision instruments of assassination. Blowing someone up will likely result in peripheral casualties. As a result, the level of evidence necessary to justify their use increases exponentially. Blowing people up (and those around them) while they sit in at home, attending a funeral, or driving (without explosives) is what Obama does overseas. The larger issue is the degree to which the Constitution allows the Executive to order murders hinging on "imminent threat". There was no demonstrated "imminent" threat before those murders overseas. Applying that definition of imminence to domestic law enforcement turns us into East Germany. People will be shot and sometimes blown up by our government for no better justification than "our behavioral patterns" or who we happen to correspond with.

Killing innocent bystanders is what the drone assassination issue is about and is a separate constitutional issue since we are talking about the murder of people not even suspected of a crime, let alone presenting an "imminent threat".
 

"I've been reading Balkinization for about 5 years, and this is the first time I recall ever agreeing with Brett."

In the spirit of Shannon's criteria for measuring the information content of a message, (That a message carries no information if you can predict it's contents in advance.) I endevour to maximize the information content of my comments by not making them when I expect people to agree...
 

Brett is pretty predicable with his comments at this Blog. So perhaps he could provide a specific cite to Shannon's criteria that he claims to follow. I assume Brett is not focusing on message encryption. Brett's anecdotal comment on Ruby Ridge provides selected - not maximized - information presumably for shock impact rather than the complexities of Ruby Ridge that took a long time to sort out.
 

Which in fact could be sorted out, only because the Obama "trust me" doctrine didn't apply.

Imagine, for instance, that the Obama doctrine applied to the Move bombing in Philidelphia: All we'd know was that a building had caught fire, tragically resulting in many deaths, but we wouldn't have a clue it was arson by the police.
 

In actuality, there is really no "Obama trust me" policy [the policy involves various criteria] and to the degree that ultimately you have to trust the government, it is not unique to him.

The 'white paper,' e.g., cites various arguments that have various considerations -- the fact Congress authorized military force, did so in a specific way, various rulings of the USSC and certain rules of international law. All do not just involve "trust me."

Ultimately, however, again this is not special to Obama, the President is given some ultimate discretion. For instance, in "sudden attacks," the executive has the power to respond. The buck stops there ultimately. You have to trust the executive, just like you have to trust the cop on the street who uses excessive force.

The response has consequences. There are various things that can happen, including domestically and internationally. In the Move case, e.g., the people would have access to the courts, Congress can have investigations, the media can investigate etc.

The phony so-called "Obama doctrine" doesn't stop this. The Administration has to even share info with certain members in Congress in top secret matters to get funding. Again, not just "trust us."

As many have noted, this stuff is too serious to have Rand Paul-like exaggerations and confusion.
 

"In actuality, there is really no "Obama trust me" policy [the policy involves various criteria]"

Really? And who, outside the administration, gets to review whether the 'various criteria' are actually being complied with? What evidence preservation protocols are there? What mechanisms are in place to make sure he shares that information with certain members of Congress?

Come on, if you can't take it to court, it's "trust me".
 

""We think we can target people after we've done our damnedest to assure ourselves that the targets do in fact pose an imminent threat to domestic security, and when we've done the best we can to rule out the possibility that we can stop them by arresting them in circumstances where there's a relatively low probability of doing so safely."

The problem here to me is this idea of imminence. The scenario where they are pretty sure the guy is driving the explosives to the bombing target, sure. But that's not the same as 'well this guy is not doing anything deadly right now, but if we don't get him now then down the road he might be doing such a thing and it would be too late."

You can't walk 'down that road' and then act like you are at the beginning of the street. The imminence has dissipated.
 

I think to make the scenario analogous you'd have to have a terrorist who you're pretty certain is planning a bombing, you lose him and are unsure if you'll ever pick him up again, then you get the tip that he is driving on his way to meet an accomplice to whom he will direct how to get the bomb together and what to do with it in two weeks. You spot him but it looks like you could not apprehend him, but you could shoot him.

I don't think you can shoot this guy legally...
 

And who, outside the administration, gets to review whether the 'various criteria' are actually being complied with? What evidence preservation protocols are there? What mechanisms are in place to make sure he shares that information with certain members of Congress?

Take your MOVE example. To repeat myself, the courts are just one means to determine if the President complied with the rules, just like if a police officer uses excessive force, it is a check.

It is a limited check. Likewise, when an officer uses excessive force, we need to trust the officer to some degree, especially given immunity laws in place. We can't be sure if evidence of wrongdoing will come out etc.

If a federal agent was involved, this isn't "Obama's trust me" policy neither. It is how the rules were traditionally applied.

Put any rules you want, and we can always assume the President will being hiding something, Congress or the courts will not do enough to provide checks and balances.

"Really," there is some degree of trust required in republican government. The means are there to check and balance in each case though. The same applies here.
 

http://www.salon.com/2011/10/20/the_killing_of_awlakis_16_year_old_son/

What "checks and balances" or oversight were at work in Abdulrahman al-Awlaki's case? Does this make anyone else uncomfortable? Is it unreasonable to want the President to offer some explanation as to why this was necessary?
 

Everyone agrees, I take it, that there are situations where the FBI, state or local law enforcement or even private citizens are privileged to use deadly force. The question implicitly raised by Senator Paul's filibuster is whether there are situations involving national security where the ordinary privilege is broadened. I guess Professor Tushnet's rather complex hypothetical is intended to suggest that the answer is yes, but frankly it didn't do much for me in the way of illustrating the point.

A more straightforward, and less hypothetical, example would be VP Cheney's order to shoot down airplanes on 9-11 in order to prevent them from hitting additional targets. Was this order legal? Or was it an illegal (or extralegal) order that may nonetheless have been justified under extraordinary circumstances?
 

No, the question isn't whether "the ordinary privilege is broadened". The question is, (To put it in terms a Democrat might actually care about.) whether, if the President, or even somebody under him, up and decides somebody is too annoying to live,

1. An evidence trail will be preserved by somebody other than a modern Mary Rose Woods.

2. The decision will be reviewed by somebody other than today's G. Gordon Liddy.

3. Today's John Sirica gets anywhere, or just runs into a complete stonewall.

The question isn't whether people get killed, it's whether there's any form of accountability involved that somebody who DOESN'T trust the administration would think worthy of the name.
 

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Prof. Tushnet's post is not addressed to US drone policy outside the US. What he does address is set forth in his first paragraph. Read with care his parenthetical limitations in that first paragraph.

Regarding Tushnet's examples, keep in mind that law enforcement methods in the US continue to evolve, based upon lessons learned from the past. Sometimes the lessons are learned well and sometimes not. The Constitution as amended provides US citizens - and persons! - due process of law under the 5th and 14th Amendments. While courts may eventually determine whether particular actions taken by federal/state enforcement officers are or are not violative of due process of law, law enforcement officers cannot perform many of their duties if they are first required to obtain court approval. Court reviews may not always provide just results because of immunity that might be available to a law enforcement officer. But there can be transparency via the First Amendment's speech/press clauses that may lead to better accountability. We are living in a post 9/11/01 world. Laws of war continue to evolve, including the global war on terrorism that has seeped into the US and which has to be addressed by law enforcement officers in the US. The latter is what Tushnet addresses in this post.

With regard to the US drone policy outside the US, it most likely will evolve as lessons are learned from events post 9/11/01, almost 12 years ago. David Ignatius' column in today's WaPo "Drones: A weapon that needs a holster" takes up this aspect. Also in today's WaPo is a lengthy essay by Andrew Bacevich "Ten years after the invasion, did we win the Iraq war?" that goes back to the War of 1812, questioning the results of some wars, including those post 9/11/01.

But keep in mind the limitations of Tushnet's post noted above.
 

Shaq, I read the Bacevich article and thought it was very well done. He's one of the more thoughtful conservatives one can read.
 

By Thoreau at http://highclearing.com/index.php/archives/2013/03/08/16027


(sorry for copying and pasting the entire page)

"Kevin Drum asks what difference it makes whether an assassination on US soil is done by drone or by sniper. I’ll attempt to identify a few differences:

1) If you send a team of men with guns, you can in principle leave open an opportunity for the target to surrender. Or, at least, if you want to pretend that you weren’t planning this as an assassination, you can at least create some plausible deniability and maintain that really, honestly, you would have been happy to accept the suspect’s surrender, but he committed suicide-by-cop when his hands suddenly moved upward toward the empty air. If you send a drone, you’re making it abundantly clear what your intent is.

Of course, the person is just as dead either way, but in terms of what it says about the system, and how far along things are, once they foreclose even the hypothetical pretext of willingness to accept a surrender, it sends a signal.

2) Remember Ruby Ridge? The particulars of that case and the right-wing response to it in the 90’s are largely immaterial here. What’s more significant is that Idaho prosecutors actually tried to go after a federal agent who was involved in the siege. If the killing is done by a guy on the ground, he has to show up and interact with people. The local cops might figure out who he is. But if the trigger is pulled by a guy holding a joystick in another state, sitting in a classified location, they won’t have any idea whom to prosecute. And even if they did, he’s in another state. I’m no lawyer, but surely the jurisdictional issues facing a state or local prosecutor will be complicated, to say the least.

I have no illusion that anybody would ever be successfully prosecuted for an assassination ordered by the President, but the bottom line is that it’s easier to avoid scrutiny and accountability if the person doing the killing is anonymous and far from the scene, in some classified bunker."


 

[1] The "intent" is that the target is an enemy combatant or (unclear if this back-up reason was ever the only justification) some national self-defense threat.

In both cases, it is not "an assassination," in a legal sense. Now, you can use that term or call abortion or capital punishment "murder," but that's more advocacy than law.

The ability to surrender is noted. "Drone" isn't the only way to kill in this context where that is not a realistic option. A sniper can kill you without you knowing he is there. He can do so a long distance away. In either case, you can first somehow give the person time to surrender. al-Awalki had time to surrender.

[2] Whatever a state prosecutor tried to do, shades of what state officials tried to do when the Fugitive Slave Law was enforced, local prosecutors cannot go around arresting federal agents for practicing their duties. This is mostly theoretical, especially as applied to charging some commandos from the U.S. in a foreign country. Also, the siege in Ruby Ridge or MOVE or whatever, isn't the result of some single federal officer. Federal involvement is probably needed to determine who's who there. If that is the case, the same could be for drones. Certain people are responsible there too.
 

As to "some plausible deniability," it also depends on what that entails.

For instance, al Awalki's son was collateral damage in an attack on Al Qaida. That is, that is what likely happened. But, someone told me that what "really" probably happened is that the person was specifically targeted to avoid him from practicing revenge or something.

So, you have deniability with drone attacks as long as the person or persons you hit can be explained as the result of some other target, person or base.

BTW, I liked the B. op-ed too though would note that a lot less people were killed in the War of 1812, even if both can be seen as but sideshows to a general theme.
 

"1] The "intent" is that the target is an enemy combatant or (unclear if this back-up reason was ever the only justification) some national self-defense threat."

Where 'enemy combatant' means 'somebody designated so by somebody in the executive branch, using classified information. Similarly for 'national self-defense threat'.
 

In war and authorized military force, use of classified information to my knowledge has been used from time to time, unless, e.g., all use of force in WWII or something was done using publicly provided information.

There should be various means to check this clearly open to danger power including perhaps some FISA sort of court mechanism but this is yet again a case of typical warfare being put out there as tyranny.
 

The anxiety on the right and left over the Executive branch's possible use of drones to kill U.S. citizens on U.S. soil is one of the many "socks on the floor" controversies of the post-9/11 era. When a husband and wife get into a raging screaming match about his leaving his socks in the middle of the bedroom floor rather than putting them into the hamper, chances are there are quite deeper and more profound fissures in the marriage. In the post-9/11 era, so it is with citizens not employed by the government and those citizens who are: we have deeper issues of mistrust that go well beyond socks on the floor.

Yet with the citizen and citizen-employee fissure, paranoid scenarios like "I was sipping my latte at the Starbucks in Dupont Circle when all of the sudden the government's drone missile rained down from the sky and ruined mine and everybody's morning!" would be the equivalent of the marital bedroom sock drama. In other words, we're not getting at the root of the mistrust.

The above F.B.I. bank robber chase hypothetical of Professor Tushnet goes to the heart of the matter: society relies upon individuals willing to enforce communal standards of conduct, enacted into law, yet the vast majority of citizens do not want to be those enforcers, at any point in their lives, let alone for a career. Only a tiny minority do. At present, the citizenry has little grasp on what makes that tiny minority tick, and as concerns the Executive branch, an even lesser grasp.

Moreover, the citizenry has no means of distinguishing those with the right tick - those who simply want to enforce the collective will of the people, stemming from an abiding regard for the people - from the wrong tick - those who want to lord over the people.

Until our constitutional framework injects greater fluidity for the citizenry to get at what makes all enforcement-seekers tick, and permits a more active role for the citizenry to incentivize good tickers to become communal standard enforcers, and dis-incentivize bad tickers from becoming communal standard enforcers, chances are more distracting "socks on the floor" debates - like getting shot by a government drone at Starbucks - will be in the offing.

Timothy Villareal
http://tyrannydissolution.wordpress.com
 

I know Professor Tushnet's post and the comments thereafter have mostly dealt with the constitutional analysis, but I wonder if his analogy to the use of force in the context of the FBI taking potentially lethal action in defending against imminent harm is misplaced.

I don't think anyone really questioned the President's authority in such circumstances. In contrast to that hypothetical, though, the drone program has significant distinguishing features: (1) it is run by the CIA, and (2) the National Security Act of 1948 states that the CIA "shall have no police, subpoena, or law enforcement powers or internal security functions."

I'm not aware of any laws that would authorize the President to use drones for targeted killing in the U.S. against U.S. citizens. (As an aside, the AUMF could be read to authorize such action -- but I'm pretty sure there is strong legislative history that demonstrates that Congress never intended to be so broad.)

Also, Professor Tushnet might be conflating two different conceptions of "imminence" -- the context in which he describes "imminence" is far different than the circumstances contemplated in the DOJ white paper. The post by "Unknown" at 11:29 PM pretty much summarizes why this conflation is theoretically unsound.
 

Well I am not a lawyer. I occasionally come here. I am sure lawyers are very smart people. Here is a conundrum I have. Till about 10-odd years ago, torture was bad in this country and lawyers agreed, the ones who didn't were uniformly condemned as bad.

Then the OLC (a bunch of lawyers) determined that 'wait a minute, it was all legal; hell what were we thinking'.

Then we had many people like Mr. Martin Lederman who complained, 'oh! bad lawyers'.

Then Mr. Lederman joins OLC, and voila we again have unusual (to say the least, I do have better words for it) decisions made, opinions written, new weird things have been declared legal.

When I try and teach my children about laws, these are good (great) examples.

Of course I know I am naive, I do not know law or constitutional law, I am a mere physicist turned biologist now.

Good luck!

---ajay
 

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I thought this was a liberal blog and I'm a little shocked to read this by Mark Tushnet: "Believing that they've just observed a bank robbery, the FBI agents pursue the two guys.... In the course of the pursuit, and still trying to catch them, they shoot out the escape car's tires -- in circumstances where it's really likely that the result will be a crash in which the (suspected) robbers will die. ...Does anybody really think.... that, if they can't shoot out the tires without being sure that the (suspected) robbers will survive, they have to let the robbers get away?"

I think that, and moreover I think it's obvious, and on top of that the Supreme Court agrees with me. I think it's repulsive that anyone would think otherwise. You think that they might get away with some money, which they might have stolen, so the FBI has carte blanche to likely (in your scenario) cause their deaths? Are you serious about that? I'm saddened that only one other commenter here, "Douglas", seems to have picked up on this point, and I wholeheartedly endorse his points above. We are not a police state and even guys holding guns and bags of money are presumed innocent until proven guilty.
 

On the unconstitutionality of using deadly force against a fleeing suspect who does not pose a significant threat of death or serious bodily injury to the public, see Tenn. v. Garner, 471 U.S. 1 (1985). Mark Tushnet has placed himself to the right of the Burger Court.
 

Joe: "In war and authorized military force, use of classified information to my knowledge has been used from time to time, unless, e.g., all use of force in WWII or something was done using publicly provided information."

Um, Joe, what is under discussion is US forces being employed in the USA under circumstances other than clear de facto war.

Do you understand this?
 

"On the unconstitutionality of using deadly force against a fleeing suspect who does not pose a significant threat of death or serious bodily injury to the public, see Tenn. v. Garner, 471 U.S. 1 (1985). Mark Tushnet has placed himself to the right of the Burger Court."

Sometimes I think that something is deeply rotten in the heart of our legal establishment.

Then I think of John Yoo, Dershowits, Goldsmith and Bybe, and know it's so.
 

"Then the OLC (a bunch of lawyers) determined that 'wait a minute, it was all legal; hell what were we thinking'. "

And a bunch of federal judges said 'yup, sound right to us!"
 

Timothy Villareal for the win!

Matt: "I'm not aware of any laws that would authorize the President to use drones for targeted killing in the U.S. against U.S. citizens. (As an aside, the AUMF could be read to authorize such action -- but I'm pretty sure there is strong legislative history that demonstrates that Congress never intended to be so broad.)"

I'm aware of laws against the torture of prisoners, but that's been no obstacle of any real size.

And half of the problem, as Timothy pointed out, is that the question here is that the government (under both Bush and Obama) has frequently taken the attitude that the question is 'what law stops us' and 'does a law matter if we can get away with it?'.
 

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but the point of Tennessee v. Garner is that if there is probable cause to believe the suspect will be a serious threat of death or physical injury to others AND no other reasonable alternative, then killing him is reasonable under the Fourth Amendment. www.joyrs.com windows 7 professional product key www.rs2fun.com
 

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I know Professor Tushnet's post and the comments guild wars 2 gold thereafter have mostly dealt with the constitutional analysis, but I wonder if his analogy to the use of force in the context of the FBI taking potentially lethal gw2 gold action in defending against imminent harm is misplaced.

I don't think anyone really questioned the President's authority in such circumstances. In contrast to that hypothetical, though, the drone program has significant distinguishing features: (1) it is run by the CIA, and (2) the National Security Act of 1948 states that the CIA "shall have no police, subpoena, or law enforcement powers or internal security functions."
 

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This protects the civil rights of both bystanders and suspects by using lethal force only when it is the only possible option left.
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