[InclinedPlane]

The administration's position is, frankly, bullshit. It amounts to little more than the executive branch reserving for itself the ability to call any location outside of US territory a battlefield and to designate anyone they wish a threat worthy of summary execution.

Now, all of this is couched in the most justifiable of terminology and is crafted to follow the broad outlines of judicial procedure but the fact remains that the administration has given themselves this authority and retain whatever oversight, if any, is involved with it.

This is utterly antithetical to the principles set forth in our constitution and if any of the founding fathers were alive today I'm quite certain they would vomit at the idea.

[anigbrowl]

the administration has given themselves this authority

Congress gave the administration the authority. You may dispute the wisdom of this, you may think it should rescind that authority, you may think the scope of that authority should be more narrowly defined - all entirely reasonable points of view. But when you claim the administration is being autocratic, you are simply, factually wrong.

http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ...

This law has been in place for almost 12 years, and you are surely aware the US is still at war and that this war is not expected to conclude until next year. We have discussed this issue before and you know perfectly well that the US has been at war for over a decade. It's disingenuous of you to argue as if you weren't aware of this.

[InclinedPlane]

Indeed, the administration has given themselves the authority in context of congress declaring war against al qaeda. Which means that congress could end the declaration of war and end the administration's new power. So perhaps I should have said that congress has in effect given the executive branch enough leeway to create this power, but in the end the power is still there.

[anigbrowl]

Congress hasn't done it 'in effect', it did so very explicitly:

Now, therefore, be it resolved by [Congress]:

[Section 1 is the title of the act]

Section 2 - Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It's not the case that Congress declared war and the executive branch granted itself authority by extension. The phrase 'be it resolved ... [t]hat the President is authorized...' is the grant of authority.

A lot of people think this is so broad as to amount to a blank check, and I agree. But neither the Bush nor Obama administrations have have had to perform any legal conjuring tricks to derive this authority. Congress gave the President the authority in very clear terms. The President's authority to determine who is or is not a target under this legislation is absolute; it's not subject to qualifications or review by other branches. The language of the legislation is about as plain as it gets.

[mpyne]

To piggyback on, the AUMF also explicitly mentions that it is the Act required in accordance with the earlier War Powers Act. They really leave it crystal-clear that the AUMF is very much intended to give the President the "Commander-in-Chief for a declared war" powers that Congress is able to grant.

It's horribly over-broad and open-ended, but Congress has only themselves to blame (and they can rein in the Act if they wish as well, or at least make the President try to veto it).

[tptacek]

"Anybody"?

The 2001 AUMF is specific: force is authorized against nations, persons, and organizations involved in 9/11, so long as that force is used to prevent future attacks.

The administration cannot use this construction to declare Wikileaks a terrorist organization and drone strike them.

I am interested in which principle of the Constitution you find this situation antithetical to.

[InclinedPlane]

The only oversight in the use of lethal force in furtherance of either identifying or killing senior al qaeda leaders lies with the administration itself.

What is the legal process for being declared an al qaeda leader? What is the legal process for anywhere outside of the US being declared a battlefield? What is the legal process for summary execution of someone who the administration has decided is an al qaeda leader? In each case the answer is: it is entirely up to the administration.

Yes, as a matter of constitutional law it is certainly possible for congress to declare war on a transnational entity and effectively designate the entire world outside the borders of the US as a potential war zone, under the discretion of the president, but I would say that rather twists the spirit of the constitution rather too far.

[tptacek]

What does "oversight" mean? We killed 25,000 innocent people in Dresden in WW2. Predator drones will never kill as many civilians as we did in Tokyo. What judicial opinion can I go look up to justify that?

If you want to come back and tell me that the problem is that we declared war on an ideology or a label, I will ABSOLUTELY sign that petition. Just be aware that a majority of Americans probably won't be signing it with us.

[InclinedPlane]

The 25,000 people in Dresden knew they were in a war, they were citizens of a country the US had declared war against. And calling them innocent is a stretch. They were complicit in the actions of their country (just as we are in the actions of our own). They made the ammunition and grew the food that fed the German war machine. Whether they did so of their own volition or were substantially coerced into doing so is somewhat academic when it comes to war. The folks building V2s were slaves, but was it unjustified to bomb those facilities and kill them to stop the V2s from being built?

Anyway, that's neither here nor there. Today we have a situation where the entire world could be a battlefield and we haven't the slightest clue how to deal with the troubling problems that entails. So far our best efforts have been for the administration to draw up a secret internal white paper on how to make sure they only execute the right people and for everyone else to rely mostly on hope. This is not a situation our existing laws are remotely up to tackling, and yet it will surely become more and more the norm over the next few decades. We need something more than "well, the administration thinks they killed the right guy".

[tptacek]

Here I exercise my option not to debate the ethics of warfare with someone who thinks the mass incineration of children is less fraught than the targeted killing of individual suspected terrorists.

[yew]

I feel rather the same way about anyone who's comfortable just assuming the opposite; viz, that the mass incineration of children during at least semi-procedural wartime bombing is more fraught than obscure peacetime military action carried out for reasons that are themselves highly obscure to non-specialists. Said non-specialists who are at least theoretically supposed to have some involvement in the decision process in question. So, there you are.

I'm not even opposed to the idea of military drones, really. I just think you have a bad habit of responding to people who disagree with you by telling them that they're too stupid for you to talk to. Pity.

[lostlogin]

I think your reply misses the point. The children weren't targeted (although everyone knew they would be hit), while the terrorist might be targeted by the drone, but everyone knows they regularly hit non-combatants (weddings, kids etc) and will continue to do so for the foreseeable future. At least everyone agrees WW2 was a war, how many places that drones operate in have actually got a declared war in progress?

[InclinedPlane]

Does it make you feel morally superior to reduce warfare to such facile terms? Maybe you should become a pacifist.

You haven't answered the question on the morality of bombing Peenemunde (the V2 construction facilities), over 700 Polish civilians were killed in one bombing alone. Do you have an answer?

I refuse to shy away from the moral complexities of warfare, but that doesn't mean I refuse to acknowledge that there are moral issues in warfare. There very much are. And right now our country is installing legal and formal precedents which are sincerely disquieting in that regard.

In regards to your quip, the phrase "individual suspected terrorists" should have about 10 metric fuck-tons of asterisks after it. Because "suspected terrorists" are pretty much anyone the administration designates as such. And "individual" is pretty much defined as "anyone within the blast radius of a hellfire missile when a 'terrorist' is chosen to be executed". Not that drone attacks are even the entirety of the problem. Go read up on the war we've been fighting in Yemen and in the horn of Africa for the past several years.

[anigbrowl]

We need something more than "well, the administration thinks they killed the right guy".

Then lobby for the repeal or amendment of the AUMF by Congress. The executive Branch is currently authorized by law to make those sorts of decisions.

[pdonis]

The only oversight in the use of lethal force in furtherance of either identifying or killing senior al qaeda leaders lies with the administration itself.

This is not true. Both the Senate and House Intelligence committees have the right to see everything the President and the intelligence community see. If they aren't happy with how the decisions are being made on drone strikes, they can change the law that ultimately dictates how those decisions are made.

And that is the real problem with what Rand Paul is doing. If he has a problem with how drone strikes are being conducted, then he should be pushing to change the law that governs drone strikes. He should not be holding up a Presidential nomination.

[AnthonyMouse]

Hypothetical: Congress declares war on drugs. Force is authorized against nations, persons and organizations involved in drug trafficking, so long as that force is used to prevent future drug-related fatalities.

[anigbrowl]

The late Christopher Stuntz made an argument in The Collapse of American Criminal Justice that one of the overlooked good things about alcohol prohibition is that it was instituted and later repealed by amendment of the Constitution, removing major legal ambiguities and allowing the polity to function as a Constitutional Republic.

For some reason or other we have become averse to amending the constitution since the 26th amendment took place in 1971. (There's a 27th amendment that occurred in 1992, but that's kind of an aberration because it was submitted to the States in 1789 and then almost forgotten about for 200 years; there was no deadline on the original submission.)

[AnthonyMouse]

>For some reason or other we have become averse to amending the constitution since the 26th amendment took place in 1971.

The "for some reason" is obvious. Look at the amendments passed since prohibition was repealed in 1933.

22nd: Presidential term limits

23rd: D.C. gets to be part of the Electoral College

24th: Prohibits poll taxes

25th: Relating to Presidential succession

26th: Prohibits age discrimination in voting

Notice the trend? They're all related to elections. Because that's practically the only thing left that expansive readings of the commerce clause and other constitutional provisions and outright power grabs haven't given Congress and the Executive the power to do through normal legislation and executive action.

Why go through the trouble of amending the constitution when the courts allow you to just pass a law or issue an executive order?

[anigbrowl]

As if the courts never struck anything down or ruled against the government. http://en.wikipedia.org/wiki/List_of_landmark_court_decision...

[tptacek]

VERY BAD.

[nazgulnarsil]

the ratchet clicks.

[InclinedPlane]

I'll just leave this here: http://www.wired.com/dangerroom/2013/03/friends-of-friends-q...

It's a shame that this was totally and completely unpredictable.