One Thing Obama Is Doing Right Is The Latest Thing He Is Doing Wrong

Ralph Peters lauds Obama's expansion of the Drone Wars:

Terrorizing terrorists

One thing Obama's doing right

As the administration fiddles and fumbles with its soft- on-terror policies at home, one Obama-blessed campaign abroad is hitting al Qaeda and its franchises hard: the drone war.

Drones work. They kill terrorists. Important terrorists. And we don't have to squabble about where to put their shredded bodies on trial.

Color him "gung ho".  But there is thunder from the left!  Glenn Greenwald raises an interesting point:

Last week, I wrote about a revelation buried in a Washington Post article by Dana Priest which described how the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists.

Greenwald also links to this piece by Eli Lake in the Washington Times, which includes this:

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission.

"We take direct actions against terrorists in the intelligence community," he said. "If we think that direct action will involve killing an American, we get specific permission to do that."

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include "whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved."

Let's cut back to Greenwald:

Although Blair emphasized that it requires "special permission" before an American citizen can be placed on the assassination list, consider from whom that "permission" is obtained:  the President, or someone else under his authority within the Executive Branch.  There are no outside checks or limits at all on how these "factors" are weighed.  In last week's post, I wrote about all the reasons why it's so dangerous -- as well as both legally and Consitutionally dubious -- to allow the President to kill American citizens not on an active battlefield during combat, but while they are sleeping, sitting with their families in their home, walking on the street, etc.  That's basically giving the President the power to impose death sentences on his own citizens without any charges or trial.  Who could possibly support that?

But even if you're someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it's worth remembering that if you advocate that power, it's going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn't there at least be some judicial approval required?  Do we really want the President to be able to make this decision unilaterally and without outside checks?  Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval?  Shouldn't we be at least as concerned about the President's being able to assassinate Americans without judicial oversight?  That seems much more Draconian to me.

Not a bad point, actually; let's turn to Matt Yglesias for a more dramatic overstatement of the President's power:

But the story reflects a pretty odd feature of our political system, namely that the president seems most empowered in precisely those areas of governance that ought to give you the most concern about tyrannical abuses.

...

But if Scooter Libby obstructs justice, the president has an un-reviewable, un-checkable power to offer him a pardon or clemency. If Bill Clinton wants to bomb Serbia, then Serbia gets bombed. If George W Bush wants to hold people in secret prisons and torture them, then tortured they shall be. And if Barack Obama wants to issue a kill order on someone or other, then the order goes out. And if Congress actually wants to remove a president from office, it faces extremely high barriers to doing so.

"A kill order on someone or other"?  Really?  Some thoughts.

First, the President's power is hardly unlimited, so Sarah Palin and Rush Limbaugh can relax.  Although it is not subject to formal checks in this drone example, officers in the military do not take an oath to follow every order the President issues; they have sworn to uphold the Constitution and follow lawful orders.

As we saw with the warrantless wiretapping program (link?), the chain of command has surely lawyered up and persuaded themselves that their safeguards and targeting procedures have kept the drone program legal. It would be interesting to know their reasoning, and I don't know whether it would be persuasive, but there are plenty of targets (such as Rush) that would obviously be out of bounds.  Greenwald does make a fair point "slippery slope" point about drug smugglers and drug lords being possible drone targets; Tom Clancy wrote about this back in 1989.

Second, as with the wiretapping debate or the enhanced interrogation debate we have an ongoing institutional tussle between an Executive Branch eager to expand and assert its authority and a Congress that seems to start each play with its punting team on the field.

Congress whooped through the Patriot Act in the aftermath of 9/11 and then liberals spent years apologizing for their votes.  Once bitten twice shy!  On the enhanced interrogation program Congressional leaders listened to briefings and nodded silently; any objections were noted to their personal diaries so that, if the political winds shifted, they could document their longtime, steadfast opposition.  But actual leadership?  No.

Congress does not want to get their hands dirty on issues of war.  If a program is popular and/or successful the President will get credit; if the program fails, they have no interest in sharing the blame.  Today, they would surely pass legislation authorizing the aggressive use of drones subject to some sort of review; a few years from now, and a few more studies showing a high civilian casualty rate, and who can say?

The right answer for Obama is the same as the right answer for Bush - reach out to Congress and propose legislation formally limiting the President's power and engaging the other branches.  In Bush's case, he did not do so in part because of a desire to reclaim past power of the Executive Branch and in part to keep the actual programs secret.

And Obama?  The drone program is hardly secret.  As a former Senator and former constitutional law professor, he has a bit of a foot in all three camps.  If Team Obama is looking for an opportunity to work with Congress on a bipartisan basis (and enrage his base!) this would be a good starting point. 

LET'S NOTE:  Kamal Derwish, an American who helped to recruit the Lackawanna Six, was killed by a drone strike in Yemen in 2002; he was collateral damage, not the primary target.

IN THE GRAND THREE-WAY ZERO SUM GAME:  Who would win or lose from Congressional action?  Obama is the big winner - he gets a bipartisan bill that boosts his national security cred.

Congressional Republicans gain bipartisan points, but is the obstructionist label really hurting them?  Helpful for 2010, not helpful for 2012.

Congressional Democrats from the Greenwald wing will beclown themselves.  Pelosi and Reid lose again.

And how about We the People?  Well, a bill today might spare us from an investigation into drone war crimes a few years from now. 

As to the legislation itself, I don't see a FISA analogy.  The FISA courts come from the Constitutional language on search and seizure; nothing in the Constitution empowers a court to sanction a pre-trial execution.

The authority, presuming it exists, comes from the President's powers as Commander-in-Chief.  It's not clear how the Congress can claim a role there (they declare war, not execute it), or why the Executive would agree to grant them one.  But my guess is the only review would be from Congress, perhaps by way of the Intelligence or Armed Services committees.

LEGAL EAGLES MIGHT START HERE: Kenneth Anderson of the Volokh Conspiracy discusses the general background of drone attacks and the law of war.

Comments

[clarice]

He was not a "former constitutional law professor"and everytime you say this a Univ of Chicago law professor dies (at least figuratively).He was an associate lecturer or some such hired to pad out the school's AA figures to keep the ABA's assessment teams happy.
I say this not only to defend their honor but as well because it is perfectly obvious that Obama knows as much about constitutional aw as he does about military" corpsemen".

[Neo]

There is one good way to test "Terrorism Derangement Syndrome: The GOP's scare tactics work so well because the public is terrified already" to see if it's just the GOP.
Post on the internet details of the security of the writer's neighborhood, opening it up to terrorist attack, and see if it's just the GOP that makes loud noises.

[royf]

Isn't one of the actions which the leftists use to claim Bush/Cheney are "war criminals" was the use of drones in Pakistan and Afghanistan? For some reason I don't hear those same voices now but at least I know why.

Since Obama got in office Military intelligence has improve so much that they now only kill terrorists. For some reason under President Bush they were only able to bomb the infamous "wedding parties".

[narciso]

That's too much stupidity from Dahlia, this early in the morning, specially since Effendi
Awlaki's missives were a part of a terrorist
plot in her native Canada. As for Greenwald he roots for terrorist no matter their hue,
from Matt Hale to Walid Ali, the last was his
partner Durkin's charge

[Joe Y]

The really pathetic thing about this is that Greenwald’s infantile notion of war. ALL war is assassination. If we had had the technology in 1941 to have obliterated the Japanese and German leadership while not harming anyone else, Greenwald would have been aghast: “Assassination? How horrifying! Let’s kill tens of millions of people and devastate two continents instead. It’s the moral thing to do.”

A more compassionate, intelligent man knows better, say, for example, General Patton, who expressed a wistful preference to fight Rommel one-on-one, each in his own tank, to the enormous battles they waged.

[Cecil Turner]

Shouldn't we be at least as concerned about the President's being able to assassinate Americans without judicial oversight?

Gee, what a shocker. Our non-resident bleeding-heart "constitutional scholar" is concerned with extra-judicial killings. (But apparently unaware that the Constitution doesn't give the judicial branch any say whatsoever in targeting.)

I'm sorry, but this just isn't a legal issue at all. This is war. Indiscriminate? We aren't talking about firebombing a city here, but engaging foreign fighters on foreign soil. Color me unsympathetic, but I suspect most of the guys hanging around the terrorist masterminds aren't "innocent civilians." And if there's an occasional American mixed in there, that wouldn't be the first time. Waiting for the young firebrands to strap on explosives (and Mirandizing them when we manage to catch 'em) is unlikely to be effective. Targeting the old men who decide to send 'em just might. And if Gleen doesn't like it, he'll always have Rio.

As for his fearless fellow crusader against the Afghan war, I'd note that when he isn't spouting enemy propaganda, he's taking direct action (but somewhat restrained now he's targeting fellow lefties):

Our friends over at TrueMajority are pushing their Members of Congress to refrain from applauding when the president talks about Afghanistan. The media and people at home notice when an applause line falls flat . . .

Oh, the horror. That'll learn 'em!

[Mike Giles]

So.

If Osama is sitting somewhere, surrounded, and being interviewed, by a group of American reporters, taking the shot would be a "bad" thing?

Remember Peter Jennings, from 20 years ago, and his reply about warning a group of American advisers, if he was traveling with some "Kosanese guerillas"?

[PE]

Typical Lefties: Find something that works and f*** it up.

[narciso]

There's another problem, every terrorists taken out by drone, leaves a half dozen that
we don't know about out there, Hakimullah's
passing is great, but what of his trainees,
where have they gone. In a world where the
interrogation option is null and void, it's the least worse option remaining

[Neo]

There is the phenomenon that policemen shot and kill people "in the act" everyday without being "lawyer-ed up" or calling it in first, so by this logic, policemen are probably killing folks on a whim everyday.

Come to think of it, is that what happened to Medlock (AKA Treacher) ?

[Taylor Boyd]

Not a troll, but rarely a commenter, finding the discussions here usually more rational than most other forums, I have to ask: If we are at war, with "terror," loosely defined, illegal targeting of innocents by people who want to hurt the U.S. and other western nations, it's entirely likely that this is a war with no foreseeable end. So, then, is there ANY right or freedom that we should not be prepared to give up, if the executive, law enforcement, or military authorities decide it is necessary in this war?

[Neo]

There is such an irony reading Paul Krugman on the day after the stock market lost 2.6% of it's value in one day because Greece and Portugal (with Spain and Ireland in the on-deck) have finally reached a "deficit too far."

These days it’s hard to pick up a newspaper or turn on a news program without encountering stern warnings about the federal budget deficit. The deficit threatens economic recovery, we’re told; it puts American economic stability at risk; it will undermine our influence in the world. These claims generally aren’t stated as opinions, as views held by some analysts but disputed by others. Instead, they’re reported as if they were facts, plain and simple.
Yet they aren’t facts. Many economists take a much calmer view of budget deficits than anything you’ll see on TV. Nor do investors seem unduly concerned: U.S. government bonds continue to find ready buyers, even at historically low interest rates. The long-run budget outlook is problematic, but short-term deficits aren’t — and even the long-term outlook is much less frightening than the public is being led to believe.

When "empty" T-bills are the last remaining "hedge," it's no wonder the market dropped.

[Janet]

In a world where the
interrogation option is null and void, it's the least worse option remaining

Great point narciso. I can hardly look at the news these days. Al Frankin, drug addict Kennedy, Barney Frank, Obama....these are our leaders?!...we are in bad shape. Putting a cross in a pagan circle of stones is considered "desecration" and is compared to a nazi swastik symbol? A man that started an organization that advocates teaching our children about perverse sexual practices is STILL working for the Dept. of Education? Is there no shame?
It looks like we are done....

[narciso]

It does seem like we're in some off broadway production of Voltaire's Candide, this is the
"best of all possible world" that's where Dahlia, and the evil Glenn, and the Times live, while to us, it does seem like the 'bearded spock' universe.

[Cecil Turner]

If we are at war, with "terror," loosely defined . . .

No sale. The AUMF didn't declare war on "terror" but resolved:

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. [emphasis added]

Which, as Joe Biden famously observed, is "the constitutional equivalent of a declaration of war." One might fault the specificity of the document (or leaving it up to the President to determine who those folks are), but there's nothing "loose" about the definition. And in this particular case, there's little doubt the Al Qaeda types in Pakistan qualify as members of the class in question.

So, then, is there ANY right or freedom that we should not be prepared to give up, if the executive, law enforcement, or military authorities decide it is necessary in this war?

A "slippery slope" argument because the executive is depriving foreign terrorists of the right to life? Color me unpersuaded. Get back to me when they decide to use it on drug dealers.

[Rob Crawford]

During WWII, there were US citizens serving in the ranks of the German, Italian, and Japanese armies. Considering that many of them died as a result of the actions of US forces, what "special permission" was required?

A US citizen in the midst of enemy combatants is either a prisoner or an enemy combatant. If a prisoner, their death during a lawful strike on enemy combatants is the fault of the enemy for not properly handling prisoners. If an enemy combatant, then their death is not merely legal, but moral.

[Rob Crawford]

If Osama is sitting somewhere, surrounded, and being interviewed, by a group of American reporters, taking the shot would be a "bad" thing?

The words "two birds" come to mind for some reason.

[Thomas Collins]

TM suggests that:

The right answer for Obama is the same as the right answer for Bush - reach out to Congress and propose legislation formally limiting the President's power and engaging the other branches.

>

I think it would be a mistake for any President to support legislation limiting the President's power. Congress's power of the purse and the impeachment power, along with its investigatory powers, are more than enough to protect Congress's institutional interests. There must be no doubt in the minds of Zawahiri, Khamenei, Putin, Hu, Wen, et al that the US Prez can operate in a vigorus manner to protect the interests of the US. I wish the international system were not a Hobbesian world, but it is.

Congress didn't roll over for GWB; Congress was worried that if it limited GWB's power to combat Jihadistan and there was another attack, the voters would (correctly, in my view) take out their wrath on Congress. I'd say that is not rolling over; I'd say that was a prudent assessment of the realities of the situation.

[Ranger]

The AUMF clearly allows us to target anyone who is an al Qaeda operative, regardless of their natinoality.

The issue with the AUMF is the wording:

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

By using strictly the past tense, it created the legal hole that we find ourselves in now. There is a real question about the legality of expanding the drone war to the Pakistani Taliban, since they don't appear to have had any real connection with AQ before 9/11. Of course, they are very deeply connected with AQ now, but the AUMF wasn't prospective in its wording, limiting the president to only those "nations, organizations, or persons he determines planned, authorized, committed, or aided" in the 9/11 attack. I think the wording was very intentional so as to avoid the possibility of a "perpetual war", but it didn't take into account the possibility that AQ would find new allies in the future.

BTW, funny how the left has all sorts of problems with the idea of clearly legal targeting of people now, yet when Clinton was deliberatly trying to kill Slobodan Milosevic or violating the law of war by targeting Serbian journalists and deliberately imposing massive suffering on the Serbian population by destroying the civilian heating system for the city of Belgrade in the middle of winter, all in a war that was never legally sanctioned by congress, they were completely silent.

[fdcol63]

We missed the chance to kill OBL before 9/11 because of this overly-legalistic approach.

[Rob Crawford]

There is a real question about the legality of expanding the drone war to the Pakistani Taliban, since they don't appear to have had any real connection with AQ before 9/11.

No, there isn't. The distinction between "Pakistani Taliban" and "Afghan Taliban" is artificial; they're the same group. They had plenty of contacts with al'Qaeda before 9/11, giving them freedom of movement, support, and exchanging personnel.

[Jeff]

I think the lesson here is simple. If you are an American, Yemen, Syria and parts of Pakistan should be removed from you vacation destination list.

oh ... fdcol63 ... Sudan had Osama under house arrest and asked us to take him during Clintons years. Is that what you meant ?

[anduril]

Pat Buchanan asks: Will Obama Play the War Card? And he cites Daniel Pipes in support of this strategy.

Republicans already counting the seats they will pick up this fall should keep in mind Obama has a big card yet to play.

Should the president declare he has gone the last mile for a negotiated end to Iran’s nuclear program and impose the "crippling" sanctions he promised in 2008, America would be on an escalator to confrontation that could lead straight to war.

And should war come, that would be the end of GOP dreams of adding three-dozen seats in the House and half a dozen in the Senate.

Harry Reid is surely aware a U.S. clash with Iran, with him at the president’s side, could assure his re-election. Last week, Reid whistled through the Senate, by voice vote, a bill to put us on that escalator.

...

Nevertheless, the war drums have again begun to beat.

Daniel Pipes in a National Review Online piece featured by the Jerusalem Post — "How to Save the Obama Presidency: Bomb Iran" — urges Obama to make a "dramatic gesture to change the public perception of him as a lightweight, bumbling ideologue" by ordering the U.S. military to attack Iran’s nuclear facilities.

Citing six polls, Pipes says Americans support an attack today and will "presumably rally around the flag" when the bombs fall.

Will Obama cynically yield to temptation, play the war card and make "conservatives swoon," in Pipes’ phrase, to save himself and his party? We shall see.

A nation united once again--left and neo-right together swooning over the One! What could go wrong?

[anduril]

It's gotta be a real temptation, the war card. It's not like he'd care about spending any amount of money, and it'd be in the best of causes--his presidency.

[Danube of Thought]

If I were the president exercising the constitutional war powers, I would draw no distinction at all between US citizens and non-citizens, any more than FDR did so in the example of Americans in the axis armies in WWII.

One fundamental principle of the laws of war--currently the Geneva Convention--is that those who fight in organized, uniformed armies with command structures enjoy certain rights that are denied to those who hide their weapons, dress in civilian clothes and wage war against innocents. Yet at every term the left seems willing to grant such unlawful combatants greater rights, not lesser ones. We can't detain them until the cessation of hostilities, and now we can't kill them without a warrant.

Suicidal.

[Danube of Thought]

Ras is back to a minus twelve today, and all's right with the world.

[Rob Crawford]

One fundamental principle of the laws of war--currently the Geneva Convention--is that those who fight in organized, uniformed armies with command structures enjoy certain rights that are denied to those who hide their weapons, dress in civilian clothes and wage war against innocents. Yet at every term the left seems willing to grant such unlawful combatants greater rights, not lesser ones.

I sometimes wonder if the left ever stops to consider the world they're creating.

[Jane]

He is going to get us all killed.

[Mustang0302]

Jane, it's just the opposite...he's gonna ensure we have no choice but to kill them all:

Wretchard's Three Conjectures

[fdcol63]

Jeff,

I was referencing information contained in these 2 articles:

http://www.msnbc.msn.com/id/4540958/

http://coincentral.wordpress.com/2009/10/28/the-predator-war/

[clarice]

Yippee, DoT!!

[Janet]

I sometimes wonder if the left ever stops to consider the world they're creating.

No. After ruining an institution, they just move on to the next one....like locusts. All the horrible fallout from their ideas gets blamed on conservatives, Christians, military, heterosexuals, etc.

[fdcol63]

"I sometimes wonder if the left ever stops to consider the world they're creating."

Justice would be seeing liberals forced to live in the world they want to create.

The injustice, of course, is that the rest of us would share that nightmare.

[Ranger]

No, there isn't. The distinction between "Pakistani Taliban" and "Afghan Taliban" is artificial; they're the same group. They had plenty of contacts with al'Qaeda before 9/11, giving them freedom of movement, support, and exchanging personnel.

Posted by: Rob Crawford | February 05, 2010 at 10:18 AM

I have to disagree with you here. The Pakistani Taliban was a result of the collapse of the Taliban regime in Kabul, combined with the shift in the Pakistani government's alligences after 9/11. I'm not saying that going after them is a bad idea, I'm just saying that as a technical legal matter, they aren't covered by the AUMF passed after 9/11. There are some that argue the US didn't need a new AUMF for invading Iraq. Even so, the president went to congress to get one anyway so that congress would be on the record and there would be no legal questions raised.

My understanding is that the 9/11 AUMF was written the way it was to specificly avoid a "Gulf of Tonkin resolution" situation, where a president could use an over broad authorization from congress to justify any future action.

What we have done in Pakistan is basically intervene in a civil war because letting the Taliban in Pakistan remove the government there would be a disaster for us. Its certainly the right thing to do, but its not clear to me that the president has the legal authority to do it. Ultimatly, its a moot point because Democrats don't seem to have to follow the law, the US constitution, or international law when it comes to these things.

[Tom Maguire]

Gee, what a shocker. Our non-resident bleeding-heart "constitutional scholar" is concerned with extra-judicial killings. (But apparently unaware that the Constitution doesn't give the judicial branch any say whatsoever in targeting.)

I get the FISA courts as an extension of the warrant obligations mentioned in the Constitution. I have no idea what parallel logic could lead to "assassination warrants" issued by a court.

There is the phenomenon that policemen shot and kill people "in the act" everyday without being "lawyer-ed up" or calling it in first, so by this logic, policemen are probably killing folks on a whim everyday.

Yes, but... there are rules about self-identification, resistance, and deadly force, and yes, police do get investigated routinely.

I am sure the police never go out with explicit orders to gun someone down, as with a drone attack. Obviously, when SWAT snipers are standing by, instant execution is an option.

My guess is that if the Administration tried for a law enforcement rationale they would have to argue that an American on the drone hit list had been warned and asked to surrender (perhaps by ads in the NY Times? Beats me) and was traveling at his own risk in defiance of the surrender order.

That clearly wouldn't hold up in this country, where police can not just shoot on sight, but maybe overseas?

A stronger argument will come from rules of war, I assume.

I think it is grey. As to whether we should lok for a law - Republicans duck the obstructionist label (but how much is that hurting them?).

Obama shows his bipartisanship, gets cover on national security, and can enjoy a Sister Souljah moment staring down his howling base.

Nancy and Harry have to deal with irate, crazed lefties.

Viewed as a three-way zero sum game I think the big winner is Obama, the middle winner is Congressional Reps, and Congressional Dems will beclown themselves.

And for the rest of us? The CIA and military can be a bit less worried that five years from now Congress and Holder II will be investigating their war crimes.

And since the program is anything but secret, I bet legislation could proceed without compromising anything.

Since the courts have no obvious role, however, I am not sure what the legislation would say.

[JM Hanes]

I don't think the problem posed by the American citizenship of someone like Anwar al-Awlaki should just be written off. My own first instinct is to give him the send off he deserves, but his is a pretty obvious case; there will be other more arguable, questionable, judgment calls to be made.

If it's OK to kill Awalki with a predator drone, then it's OK to assassinate him, whether he is holding court in Yemen -- or walking down the street in NYC. Like it or not, as a citizen, he has the same Constitutional rights as everyone else does. That's why granting the Prez the authority to declare him an enemy combatant is both a key war fighting power and a slippery slope, especially when the WOT will never come to an identifiable end.

Such an extraordinary power should be vested in the President alone, but as with any power, he should not be allowed to exercise it unchecked. He should not be allowed to delegate that determination, and he should be required to document it. He should be required to provide that information to the chairman and ranking members of the Senate and House Intel Committees. As C-i-C, I don't think he should need their concurrence, but some such a protocol would inhibit a very real potential for abuses.

Nor should the President be required to submit his determinations to preemptive judicial review, no matter how such a court might be composed. Congress, not the judiciary, is charged with oversight of the Executive Branch. The increasingly direct involvement, to the point of interference, of the Judicial Branch in the exercise of Executive Branch imperatives is, itself, constitutionally unsound. Despite the unreliability of Congress, the knee jerk empowerment of the courts vests our national security interests in a handful of judges whose probity and consistency is hardly assured. As we are also seeing ever more clearly, overlawyering, particularly with a politicized DoJ, can be a deadly constraint.

[narciso]

Well no, the original Taliban comes from Younis Khalis, one of original seven Mujadeen
council in Peshawar selected by the ISI. Haqquani, another figure heads up the Quetta
branch, QST, Hekmatyar is not strickly Taliban
but his HIG 'plays one on TV.

[Danube of Thought]

I think the president has the power under the constitution to do what he's doing even if congress and the courts were completely silent. The remedy for those who believe he is exceeding that authority is impeachment, or the ballot box in 2012.

FDR needed no special authorization to invade the Solomon Islands, the Philippines, Tunisia or France, none of whom had anything to do with Pearl Harbor.

[Ranger]

Ok, this may seem a legal technicality, but why do these guys still have their citizenship? Serving a foreign power is grounds for revocation of citizenship. Since we have specificly identified AQ as an organization we can use military force against, we seem to have de facto granted it foreign power status. Perhapse all that is needed is a law the allows for the revocation of citizenship without the individual's presence at the hearing.

[Ranger]

FDR needed no special authorization to invade the Solomon Islands, the Philippines, Tunisia or France, none of whom had anything to do with Pearl Harbor.

Posted by: Danube of Thought | February 05, 2010 at 11:23 AM

True, but FDR was operating under Declaration of War authority against Imperial Japan and Germany, which were occupying those areas. There is an interesting legal issue with Operation Torch, since Vichy France wasn't technically allied with Germany and the US hadn't declared war on it (hence why the US didn't really exspect the French troops to resist).

[Danube of Thought]

"...as a citizen, he has the same Constitutional rights as everyone else does."

Would you have said the same of US citizens in the Wehrmacht in 1944?

[Danube of Thought]

"...FDR was operating under Declaration of War authority against Imperial Japan and Germany..."

My point is that a declaration of war doesn't add anything to the president's constitutional powers. So far as I know, it has little effect on anything except, for example, that it can trigger force majeur clauses in certain contracts.

[Danube of Thought]

"There is an interesting legal issue with Operation Torch..."

I am willing to bet that absolutely no one in 1943 gave a hoot about any legal issue involved in the invasion.

[Rob Crawford]

My point is that a declaration of war doesn't add anything to the president's constitutional powers.

And the AUMF was the legal equivalent in any case.

[Ignatz]

--There is an interesting legal issue with Operation Torch, since Vichy France wasn't technically allied with Germany and the US hadn't declared war on it (hence why the US didn't really exspect the French troops to resist).--

Sarkozy, or Petain or Hitler for that matter, is welcome to take us to court at any time.
**************************
My only concern with this drone issue is the common idea that it is somehow a cheap and easy method to win a war. On the contrary, absent the taking, clearing and holding of territory it is a method to extend the war. That may be a perfectly legitimate strategy to weaken them while limiting our costs in blood and treasure but it is not a recipe for conclusively winning any war, despite what Biden and other lefties, who want to look tough while pulling out, claim.

[fdcol63]

Yeah, I remember in my old Army 13B days, we had several types of rounds, including:

HE, smoke, DPICM, illumination, etc.

But I don't remember the AmCit (which spared American Citizens) or the EnComb (kills Enemy Combatants Only) rounds.

[Ranger]

Well, the difference is, the declaration of war against Japan simply set December 7th, 1941 as the starting point. It didn't limit the target of the war to those forces and territories that had participated in some way in the Pearl Harbor attack. The 9/11 AUMF did specificly constrain the president to:

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

It doesn't say harbors such organizations or persons, it says, harbored. It specificly constrains the presidet to non-al Qaeda "organizations or persons" who existed before 9/11 and supported the attack on 9/11. Al Qaeda itself is fair game (since we've determined that they "planned, authorized, committed, or aided" in 9/11), but not new organizations or countries that choose to suppot it post 9/11. To go after them, the president technically needs a new AUMF.

[JM Hanes]

DoT:

I don't think WWII analogies are any more useful than VietNam analogies. This is an entirely different kind war, and as the Geneva Conventions surely demonstrate, attempting to correct abuses by devising protocols ex post facto is a pointless exercise.

[Ranger]

I am willing to bet that absolutely no one in 1943 gave a hoot about any legal issue involved in the invasion.

Posted by: Danube of Thought | February 05, 2010 at 11:47 AM

I'm sure you're right, at least at the highest levels of government. FDR broke a lot of legal eggs to make the Victory omlet. Lets not forget that he sold US fighters to China, and then released US military pilots to fly them in combat against the Japanese long before there was any state of war between the US and Japan. Completely illegal at the time under US and international law, but no one seemed to care at the time.

[JM Hanes]

Ranger:

Indeed, that limitation was why it was so critically important for the anti-Bush/anti-war faction to deny even the hint of an al Qaeda link to Iraq.

[JM Hanes]

@ 12:06, I meant to say ***correct or prevent abuses**

[Ranger]

Indeed, that limitation was why it was so critically important for the anti-Bush/anti-war faction to deny even the hint of an al Qaeda link to Iraq.

Posted by: JM Hanes | February 05, 2010 at 12:13 PM

Very true. But Bush outflanked them by going back to congress and getting a new AUMF for Iraq. My feeling has always been that the Dems planned to run to Bush's right on Iraq thinking that he would never have the guts to actually take decisive action.

[clarice]

I didn't know that bit of history, ranger. Thanks.

[Ranger]

Well, I got a little carried away. The Flying Tigers didn't actually enter combat until after Pearl Harbor, but that was pretty much an accident of history. FDR personally approved the release of US military personel to join the Flying Tigers in a secret executive order signed on 15 April, 1940. They would have been flying combat missions against Japanese forces in early 1942 regardless of war between the US and Japan. They were rushed into combat because they were in Burma training at an RAF base and Japan attacked the UK as well as the US in early December 1941.

[Danube of Thought]

"The 9/11 AUMF did specificly constrain the president to:..."

My point is that the AUMF, while giving the president nice political cover, was not at all necessary. His constitutional powers were the same the day before it was enacted as they were the day before.

I'm using WWII analogies only to illuminate the fact that the legal niceties involved in warfare are largely a recent phenomenon. The president's war-making powers under the constitution have remained unchanged for over two centuries, without regard to congressional action (except as it limits him through the power of the purse).

[Danube of Thought]

Let's not forget the Lafayette Escadrille, or the sinking of USS Reuben James while escorting war-materiel convoys headed for the UK.

[Danube of Thought]

...the day *after*

[Cecil Turner]

My only concern with this drone issue is the common idea that it is somehow a cheap and easy method to win a war.

Bingo. The only real question is efficacy, not legality. And I tend to agree with you on the efficacy question . . . the idea that a drone provides a perfectly safe standoff capability didn't survive the recent bombing in Afghanistan. At best, it provides a means of keeping Al Qaeda uncomfortable by taking out some leadership and mid-level management types while we look for something decisive.

[Danube of Thought]

It surely won't win the war, but it's awfully nice to kill the bastards. The only downside is that they die instantly without knowing what they're in for.

[Danube of Thought]

Interesting event, completely OT. A few minutes ago my architect brother-in-law brought a client couple by the house to look at our tile floor (they're doing a remodel). The lady, probably 60, was looking around at some of the navy memorabilia and after a few moments chatting about the navy she said "My maiden name was Kimmel." So I said "Was Husband E. Kimmel your grandfather?" Indeed he was.

Both her father and his brother were naval academy graduates in the 1930's, and she said that the subject of Pearl Harbor dominated dinner conversation throughout her life. Adm. Kimmel is one of three military officers not to be allowed to retire at the highest rank they achieved (the other two are Gen. Short and John Poindexter). Her after and uncle and she have been on a life-long quest to get his rank posthumoously restored. A congressional resolution to that effect was passed during the Bush I administration, but neither he nor any of his successors acted upon it. Sad.

[centralcal]

Wow, DoT!

[Sue]

DoT,

I watched something on tv about that recently. Where they were trying to get his rank restored. I thought they had, or at least that is how I remembered it until now.

Wow, indeed.

[Cecil Turner]

This is an entirely different kind war, and as the Geneva Conventions surely demonstrate, attempting to correct [or prevent] abuses by devising protocols ex post facto is a pointless exercise.

Not sure of your exact point here, but I think I disagree. The changes in the Geneva Conventions after WWII (1949 vs the 1929 version) were mostly window-dressing . . . the problem was in their being widely ignored by various belligerents (esp. the Nazis and Russians). The real lesson from Geneva comes later, as rights given to irregulars in the 1977 Protocol I has resulted in virtually every insurgency since completely ignoring the laws of war. And the ridiculous trend--exacerbated by this Administration--is that we keep rewarding 'em for it . . . which might have something to do with their utter contempt for the law of war.

[Cecil Turner]

A congressional resolution to that effect was passed during the Bush I administration, but neither he nor any of his successors acted upon it.

Kimmel and Short's response to multiple warnings about Japanese attack were grossly insufficient and wrongheaded. Patrolling and pickets were clearly required and not accomplished. They'd been given letters on exactly what to expect almost a year earlier, routed from SecNav Knox and forwarded to both:

If war eventuates with Japan, It is believed easily possible that hostilities would be initiated by a surprise attack upon the fleet or the naval base at Pearl Harbor. The dangers envisaged in their order of importance and probability are considered to be: (1) Air bombing attack (2) Air torpedo plane attack [. . .]

They halfheartedly prepared, but utterly failed to maintain a state of readiness even though warned an attack was imminent. (And no, they weren't warned the attack was coming at Pearl, and should've been, but . . .) I feel for their grandchildren, but couldn't in good conscience approve of efforts to clear their records.

[Ignatz]

Don't know much about Kimmel and Short but did find this article on the McCollum memo pretty interesting.
Know anything about the McCollum memo and the claim of Stinnet that Kimmel and Short were kept out of the loop, Cecil or DoT? And if so any comment?

[Danube of Thought]

I don't know about the McCollum memo. I didn't say anything to the granddaughter, but I have always thought it is a slam dunk that if you are the Senior Officer Present when a catastrophe like Pearl Harbor occurs, your head has to roll. "Pour encourager les autres."

[bgates]

I have always thought it is a slam dunk that if you are the Senior Officer Present when a catastrophe like Pearl Harbor occurs, your head has to roll.

That, or get the Presidential Medal of Freedom (speaking of "slam dunk"s).

[Danube of Thought]

No question Tenet should have been fired on the spot. In the days when honor mattered he would have resigned before the firing could occur. But now they all want to cling to their jobs for dear life no matter what.

[Ignatz]

--That, or get the Presidential Medal of Freedom (speaking of "slam dunk"s).--

LOL, bgates. One of your best.

[Cecil Turner]

Know anything about the McCollum memo and the claim of Stinnet that Kimmel and Short were kept out of the loop, Cecil or DoT?

Yeah, there's little doubt Roosevelt was trying to drag a reluctant nation into war, and this is just one of the ways he did it. Somebody mentioned Atlantic convoying above, which was far more of a neutrality breach, and like the embargo against Japan it was public knowledge. No serving senior officer could realistically claim to be ignorant of the basics (and Kimmel was one of the guys who resisted forward basing of the fleet at Pearl, so he had to be clued in on that one), though some of the particulars might escape 'em. Besides, what impact did it have? It increased the likelihood Japan would attack, which was not a point Kimmel and Short could claim to be confused about.

The better claim is that critical intelligence was withheld. Which it was. Knowing we were provoking Japan is useful, knowing when and where they were going to attack (which the Magic intercepts could've provided, more or less) would've been invaluable. The powers-that-be decided it wasn't worth the risk of compromising Magic, and I tend to agree. In any event, it doesn't let the commanders off the hook for basic readiness, which was abysmally lacking at Pearl (and even less excusably in the Philippines, hours later, for that matter).