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Your last few sentences have me very confused. >"at least its encapsulated: you're in a war zone..." Yemen is not a war zone in any sense of the word. There

Your last few sentences have me very confused. >"at least its encapsulated: you're in a war zone..." Yemen is not a war zone in any sense of the word. There is no declared war on Yemeni soil. You could call it a "conflict zone", a term that could be applied to the vast majority of the developing world. >"...a place without functioning rule of law, and pose a military threat, you're fair game." According to John Yoo and Eric Holder maybe. There is plenty of dissent over this particular doctrine. >"If a terrorist is just a "really bad criminal..." Terrorists are really bad criminals. Are you able to draw a bright line between the two? If not, then what's the use of the distinction? >"...instead of a foreign soldier..." Al Awlaki was unambigously NOT a foreign soldier. He was never uniformed, he was not in a declared war zone, and he was not a citizen of a foreign nation. Unless I'm an idiot (always possible) there has never been any debate about this. >"in what other cases of "really bad criminals" do Constitutional protections go out the window?" None? A trial in absentia does not forcibly deprive the defendant of any rights if he is free to attend the trial, which Al Awlaki was. It would have been his choice whether to attend, and thus whether to take full advantage of his rights as a citizen. Am I mistaken?

deleted 13y ago
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rayiner 13y ago
> Yemen is not a war zone in any sense of the word. There is no declared war on Yemeni soil. You could call it a "conflict zone", a term that could be applied to the vast majority of the developing world. I don't understand this preoccupation with "declared wars." Who cares what you call it? The government simply does not have control over vast swaths of Yemen, and militant groups unaligned with the government are using it as a base of operations for attacks on people outside of Yemen. No, this does not characterize the vast majority of the developing world. Places like Yemen, Pakistan, and Somalia are in a totally different situation. > Terrorists are really bad criminals. Are you able to draw a bright line between the two? If not, then what's the use of the distinction? The line doesn't have to be bright, but it's crucial to draw the line. There is crime, and there is war, and the two are not the same thing. The regime applicable to external threats versus internal threats is very different. Maintaining this distinction allows you to better preserve the protections applicable to domestic criminal prosecution. If you try to shoe-horn well-financed international terrorists armed with military grade weapons into the framework of domestic criminal law, you end up distorting that framework and militarizing the domestic law enforcement apparatus. That's bad. > He was never uniformed, he was not in a declared war zone, and he was not a citizen of a foreign nation. You're elevating formality over reality. Al Awlaki wasn't unambiguously a foreign soldier, but aside from his U.S. citizenship he essentially acted like one. If a state affiliated actor had done the same thing, it would be considered an act of war. > Am I mistaken? Some procedural rights cannot be waived, and a constitutionally valid trial cannot be conducted without meeting that requirement. The historical understanding in the U.S. has been that trials in abstentia are unconstitutional, at least for capital cases. To date, the Supreme Court hasn't directly addressed the Constitutional issue (though it strongly implied it in Diaz v. U.S. in 1912), but has held that a trial in which a defendant is not present in the beginning of trial is defective for violation of Federal Rule of Civil Procedure 43 (Crosby v. U.S.) From a practical viewpoint, trials in abstentia are a far more dangerous precedent than drone strikes. Sovereign countries already reserve the right to kill foreigners if they feel attacked by external threats. You can sugar-coat it with international agreements and treaties and whatnot, but fundamentally, every nation, as against external threats, embraces the sovereign right to kill people in other countries. That's the foundational basis for war. The precedent for trials in abstentia in the context of domestic criminal prosecutions, however, is novel and scary in the U.S. and it's a stone better left unturned. It's better, for people back at home, to just say that people like Al Awlaki, through their long absence and actions abroad, simply relinquish their rights as U.S. citizens and can be treated as foreign enemies. Because you don't want the ramifications of the government figuring out how to deal with guys like him within the framework of domestic criminal enforcement.
- nate_meurer 13y ago
  You have faithfully channeled John Yoo, articulating the case for U.S. military action directed solely by the president, wherever and whenever he perceives a threat to Americans or American interests. It's bizarre to me that the failures of the Bush administration seem to have done little to damp the enthusiasm for this kind of thinking. You'll note, for example, the growing calls from various government officials to add drug cartels to the official list of terrorist organizations. Presumably to justify increased militarization of the War on Drugs. I actually like John Yoo. I disagree with him, but I find no fault with those who don't. But I think it would be intellectually honest for you to admit that you've aligned yourself with a very contentious neo-conservative strain of political philosophy. To be clear, I don't pretend to have any good answers here. I think I agree with you about trials in absentia. I don't agree that handing all the keys to whomever occupies the oval office is the best solution.
  - tptacek 13y ago
    He's not channeling John Yoo. The President is acting under the express authorization of Congress, which authorization could be withdrawn, and with it the President's ability to drone strike people simply because they are on hostile soil working with al Qaeda. John Yoo's view of the authority of the "unitary executive" is far more expansive. Of course, what you're actually doing here is invoking a bugbear (John Yoo is also notorious for conjuring quasi-legal justifications for abhorrent interrogation policies, including torture) to avoid engaging with what 'rayiner is actually saying.
    - nate_meurer 13y ago
      Well Jeez, I really wasn't trying to invoke a bugbear. I'm reaching for a label. Yoo just happens to be the most prominent articulator (in my mind) of the ideas you guys are promoting. Do you disagree with that characterization? I didn't hear you protest the neo-conservative label, which I personally find much more pejorative. As I say in my comment above, it seems that our fundamental disagreement is that I perceive a dangerous concentration of power in the executive, and you don't. If that's the case then we're likely at an impasse.

deleted 13y ago

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rayiner 13y ago

> Yemen is not a war zone in any sense of the word. There is no declared war on Yemeni soil. You could call it a "conflict zone", a term that could be applied to the vast majority of the developing world. I don't understand this preoccupation with "declared wars." Who cares what you call it? The government simply does not have control over vast swaths of Yemen, and militant groups unaligned with the government are using it as a base of operations for attacks on people outside of Yemen. No, this does not characterize the vast majority of the developing world. Places like Yemen, Pakistan, and Somalia are in a totally different situation. > Terrorists are really bad criminals. Are you able to draw a bright line between the two? If not, then what's the use of the distinction? The line doesn't have to be bright, but it's crucial to draw the line. There is crime, and there is war, and the two are not the same thing. The regime applicable to external threats versus internal threats is very different. Maintaining this distinction allows you to better preserve the protections applicable to domestic criminal prosecution. If you try to shoe-horn well-financed international terrorists armed with military grade weapons into the framework of domestic criminal law, you end up distorting that framework and militarizing the domestic law enforcement apparatus. That's bad. > He was never uniformed, he was not in a declared war zone, and he was not a citizen of a foreign nation. You're elevating formality over reality. Al Awlaki wasn't unambiguously a foreign soldier, but aside from his U.S. citizenship he essentially acted like one. If a state affiliated actor had done the same thing, it would be considered an act of war. > Am I mistaken? Some procedural rights cannot be waived, and a constitutionally valid trial cannot be conducted without meeting that requirement. The historical understanding in the U.S. has been that trials in abstentia are unconstitutional, at least for capital cases. To date, the Supreme Court hasn't directly addressed the Constitutional issue (though it strongly implied it in Diaz v. U.S. in 1912), but has held that a trial in which a defendant is not present in the beginning of trial is defective for violation of Federal Rule of Civil Procedure 43 (Crosby v. U.S.) From a practical viewpoint, trials in abstentia are a far more dangerous precedent than drone strikes. Sovereign countries already reserve the right to kill foreigners if they feel attacked by external threats. You can sugar-coat it with international agreements and treaties and whatnot, but fundamentally, every nation, as against external threats, embraces the sovereign right to kill people in other countries. That's the foundational basis for war. The precedent for trials in abstentia in the context of domestic criminal prosecutions, however, is novel and scary in the U.S. and it's a stone better left unturned. It's better, for people back at home, to just say that people like Al Awlaki, through their long absence and actions abroad, simply relinquish their rights as U.S. citizens and can be treated as foreign enemies. Because you don't want the ramifications of the government figuring out how to deal with guys like him within the framework of domestic criminal enforcement.

nate_meurer 13y ago
You have faithfully channeled John Yoo, articulating the case for U.S. military action directed solely by the president, wherever and whenever he perceives a threat to Americans or American interests. It's bizarre to me that the failures of the Bush administration seem to have done little to damp the enthusiasm for this kind of thinking. You'll note, for example, the growing calls from various government officials to add drug cartels to the official list of terrorist organizations. Presumably to justify increased militarization of the War on Drugs. I actually like John Yoo. I disagree with him, but I find no fault with those who don't. But I think it would be intellectually honest for you to admit that you've aligned yourself with a very contentious neo-conservative strain of political philosophy. To be clear, I don't pretend to have any good answers here. I think I agree with you about trials in absentia. I don't agree that handing all the keys to whomever occupies the oval office is the best solution.
- tptacek 13y ago
  He's not channeling John Yoo. The President is acting under the express authorization of Congress, which authorization could be withdrawn, and with it the President's ability to drone strike people simply because they are on hostile soil working with al Qaeda. John Yoo's view of the authority of the "unitary executive" is far more expansive. Of course, what you're actually doing here is invoking a bugbear (John Yoo is also notorious for conjuring quasi-legal justifications for abhorrent interrogation policies, including torture) to avoid engaging with what 'rayiner is actually saying.
  - nate_meurer 13y ago
    Well Jeez, I really wasn't trying to invoke a bugbear. I'm reaching for a label. Yoo just happens to be the most prominent articulator (in my mind) of the ideas you guys are promoting. Do you disagree with that characterization? I didn't hear you protest the neo-conservative label, which I personally find much more pejorative. As I say in my comment above, it seems that our fundamental disagreement is that I perceive a dangerous concentration of power in the executive, and you don't. If that's the case then we're likely at an impasse.