I suppose if you consider rubber-stamping everything that comes across your desk "judicial review," FISA courts are an example of such a check. While I'm being facetious, before the Bush Administration, FISA had either okayed all or almost all applications they received. Now, it may be that the high approval rating of previous cases was due to the executive behaving well, or it may be that only the Bush Administration truly overreached to an unprecedented extent, but I have trouble seeing anything of the sort as effective.

Moreover, I don't see it as being efficient. Actions like the strike on bin Laden are almost exclusively the domain of the executive. They may depend on getting something done within a finite time window at a certain place, and taking advantage of an opportunity that may not occur again for years, if ever. Even an expedited court process could be too slow and endanger operations. There's also that pesky separation of powers issue.

There may be civilian law analogues for a situation like al-Awlaki. Police, for example, may shoot a dangerous fleeing felon, on the grounds of the threat that such an individual poses if allowed to escape. While I can imagine a balancing test that could be used in such decisions, they are inherently not susceptible to judicial review, which would largely be limited to a pointless and moot exercise in judging the legality of a fait accompli. Still, one would think the threat posed by the enemy, balanced against the danger of capture, would have some bearing on any such decision.

I think that to the extent conducting such operations derives from inherent executive power, rather than black letter law, that as much as it may lead to unconscionable results, the political process will pretty much have to take care of it. This is fundamentally different than the situation of prisoners or detainees.

"They" may or may not do all those things. I am not so much interested in Al-Awlaki the individual. I am far more interested in the process by which a President reaches a conclusion that "those things" are actually true. If they're true about this guy, fine. What about the next guy? What if the President chooses to just make some shit up?

Scalia's dissent nails it. And to be clear, his dissent is a dissent but all 8 of the justices agreed on the fundamental point that due process was required. I could quote passages from each of their opinions, just not Thomas's, that essentially agree with me.

It seems to me that the US perceives him to be operating in some sort of high level, leadership capacity within Al Qaeda. That he appears to function primary in the capacity of producing propaganda puts him in the equivalent role of Joseph Goebbels. Goebbels murdered his wife & 6 children and committed suicide before Allied forces could reach him, so I don't know if he would otherwise have been killed or captured -- but I know that Goebbels understood that the way to avoid being killed outright was to carry a white flag, since that is exactly what he directed his General to do to try to negotiate a cease fire with the Soviet army.

I stand corrected...

I'm not certain that we couldn't disregard a white flag from a terrorist on the level of OBL. Someone not above masterminding an enormous suicide terrorism operation would also not be above a despicable ruse.

On the general subject of al-Awlaki, if he isn't as prominent as some say, though, one example of someone who was executed purely for propaganda operations for an enemy in wartime is William Joyce, one of the voices of "Lord Haw-Haw," an English-speaking Nazi propaganda operation. An natural-born American citizen who moved to Germany and naturalized, he was nevertheless hanged for treason against the Crown on the somewhat bogus grounds that lying about his nationality to get a British passport was British enough to commit treason.

All good arguments for why FISA courts should not be an obstacle to executive action.



I doubt it. FISA is really fast. And if a situation calls for emergent action, leading to the targeted death of an American, oh well. At a minimum the government should have to explain that its action was emergent after the fact, much like it does for emergent warrantless wiretaps and such. That might not satisfy you, but it satisfies me. And my buddy Scalia.



The problem with that argument here is that Al-Awlaki has been scurrying around for a while. The government could have obtained 18 gazillion death warrants on him during this time period, with no jeopardy whatsoever to its state secrets.

One more thing: the existence and role of bin Laden as the most evil man in the world has been known for many years. I strongly agree that he is entitled to no due process whatsoever, but regardless of whether he's entitled to it, let's just assume he's an American citizen. The government could have very easily obtained a death warrant for him through judicial review with all that time. Who says it has to wait until 30 seconds before the Seals landed in Abbotabad?

The arguments against judicial review are simply empty.

If you do an emergent warrantless wiretap, and it later turns out you were wrong, you can exclude the evidence thereby gained. There's no exclusionary rule for when someone is at the bottom of the ocean being eaten by fishes. Additionally, the point is moot and the courts could do nothing about it, since the President cannot be punished for acts committed ex officio. So what would be the point of judicial review? What would it accomplish?

Additionally, the fact that FISA is "really fast" is an argument against it doing any form of effective judicial review. It is at best an administrative law tribunal.

Your question is no different than asking what the point is of requiring arrest warrants when the police have the legal authority to use lethal force in an emergent situation. There is only so much check and balance the Constitution can provide to our system of government.



I'm not sure how you reach that conclusion. It is staffed by high-level district court judges and directly overseen by the Chief Justice of the U.S. Supreme Court. That you dislike its approval statistics is not an argument against its competency as a court of law. It is, indeed, a fair and impartial court of law that is detached from the executive branch of government. That is all the Constitution requires.

And for my part, I choose not to even wade into that quagmire. Staunch advocates would argue that he is entitled to a full-blown trial before any such action can be taken against him by his own government. Others would argue that the amount of "process" that is "due" is much, much less than that. I fit in the latter category. But what CB and others suggest is that the amount of process he is entitled to is: zero. Zero process < due process, and therefore, the Constitution does not permit this as to an American.

(Rest trimmed for space.)

I think the amount of process that is due to Al-Awlaki is largely - if not entirely - dictated by circumstances. If he is captured alive through whatever means, including voluntary surrender, he is entitled to all of the protections of law. The question is what he is entitled to right now, at this moment, when he is in a foreign country, when he knows that the US Government considers him to be a clear and present danger to the United States of America, when he is choosing to remain at large, and when the US Government believes that he is actively engaged in fighting a de facto war against America.

So what do we do under these circumstances?

Extending full due process protections would presumably require us to attempt to capture him rather than simply try to kill him. That, in turn, means that we'd be setting tactical restrictions based purely on one of the multiple nationalities held by the target, and means that any attempt to limit the harm he is (allegedly) causing the country would require us to invade another country with troops - unmanned drone strikes, although by far the safest option for our military, are no longer viable options.

Extending limited due process protections - particularly a FISA-like process - set the precedent that it's OK to kill Americans, provided that you first have a Star Chamber-like proceeding without a defendant or defense. I do not want to go there. At all. I don't want to go anywhere close to there. That's not due process. That's a very thin veneer of respectability. It provides the illusion of process, and the ability to salve consciences. Nothing more.

Not extending due process protections at all also sets a massively bad precedent - but is it actually as bad as the one that the Star Chamber (let's not beat around the bush, that seems to be exactly what you're suggesting) would set? I'm not sure, but I'm leaning toward no. In the case of the Star Chamber, we're setting a legal precedent that says that we can administer capital punishment while explicitly bypassing due process. In the case of a targeted killing, we're saying that an American who is overseas and believed to be participating in military or para-military operations against the United States can, if not captured, be treated as a combatant. That strikes me as being the lesser of the two evils - if only just.

Here are the statistics on this "fair and impartial court." From 1979 to 2002, out of thousands of applications, the number of denials: ZERO.

That may be your idea of a "fair and impartial court," but it's my idea of a rubber stamp.

The accusations against Al-Awlaki seem very much like those for which the "Blind Sheik" was tried and convicted. Al-Awlaki has been linked to a number of individual jihadists such as the underwear bomber and the Ft. Hood shooter in that he 'inspired' them to take action. He is not likely to surrender or be given up by his large tribe. They are obligated by ancient customs to protect him. He was indicted and tried in Yemen but eludes recapture.

His father with the help of the ACLU and and other civil rights organizations brought suit when he was put on the assassination list but it was dismissed for a lack of standing. There are many strange and uncomfortable aspects of al-Awlaki's situation. He left the country to avoid facing violations of the Mann Act. He also had been charged with Social Security fraud for putting down Yemen as his birth place instead of New Mexico so he could collect aid as a foreign student (sound familiar).

On top of all that, wikileaks documents outed the Yemeni government for allowing the US to carry out attacks in Yemen that killed a lot of innocent people and missed the target of the attacks. It is not clear how transparent the cover was for the operation. Would not such actions 'inspire' a lot of people to retaliate? Don't such actions play into the hands of spiritual leaders such as al-Awaki?

http://en.wikipedia.org/wiki/Anwar_al-Awlaki

http://en.wikipedia.org/wiki/Omar_Abdel-Rahman

I don't have any answers. I still trying to figure out the questions.

Interesting story, but again there is a huge difference between targeting & killing as an act of war, and trial after the person has been captured.

While it is somewhat different, I would note that the requirements of "due process" are also different for a criminal on the run as opposed to one in custody. Law enforcement officers may use deadly force to prevent escape of a fleeing suspect if the suspect is seen to pose a significant threat to others. But law enforcement officers cannot summarily execute suspects after they have taken them into custody. So while law enforcement still falls under very different standards than warfare, there remains a very big bright line between the concept of dealing with someone who is at large, and dealing with someone who is in custody.

Yet due process still governs the actions of law enforcement in pursuing a fleeing suspect. Exigent circumstances, like a suspect on the run or a suspect pointing a loaded gun at an officer, do not eradicate the suspect's constitutional rights. They just change the analysis under those rights. Body-tackling a suspect on the run without a warrant, or shooting him when he points a gun, are constitutionally permitted. It would be a falsehood to conclude from that outcome that the suspect had no constitutional rights whatsoever. He most certainly did, and they were respected as he was tackled, or shot.

Obama gets his own action figure.

If criminal suspects ever start to use suicide bombs as one of their tactics, it may change the way we treat them when they flee.

Since criminals usually don't operate the way that, say, terrorists do, I doubt we will see any changes. But while terrorism has a criminal component, the terrorists currently practicing their evil craft are more than mere criminals.

On the other hand, I prefer the way terrorism has been historically handled in Europe to the way the Bush administration handled it.

I realize this creates contradictions. So I try to draw a line between those who have said they are our enemy and are waging a war against us and won't be taken alive. And separate them from others who are not so outspoken. (That, of course, creates its own set of contradictions, but at some point as this fades into the infinity I stop trying to figure it out.)

If criminal suspects start using suicide bombs, that still doesn't remove them from constitutional protections. Again, those facts just alter the constitutional analysis, rather than removing the analysis from the constitutional framework altogether. The 5th Amendment still governs a suicide bomber situation. And through that governing law, dealing harshly with suicide bombers would be justified.

The core argument here is whether the Constitution even applies. The Supreme Court has consistently rejected the argument that the Constitution does not apply to an American citizen, even one who wages war in a foreign country for a terrorist organization. By an 8-1 majority in Ramdi especially, the Court signaled a very strong distaste for the notion that war and terrorism negate the Constitution. Now, reasonable people can disagree on whether their opinions in Ramdi as applied to the detention of Americans would be tracked in a new case involving the death of Americans. My chips wouldn't be on Justice Thomas's position.

I'd like to take this article and shove it up the *** of the ***hole who argued with me on Facebook about whether OBL was still engaged in war when he was killed, but I don't want to be hypocritical since I blocked him from further access to my Facebook page.

How do these statistics compare to statistics of other courts in accepting/rejecting search warrant applications? The percentage is going to be extremely high in every court in the nation, and it will be even higher as the quality of law enforcement agency involved increases, along with the level of court (the U.S. District Court in Washington versus the Eloy Justice Court in Arizona, for example.) The FBI know how and when to apply for warrants, especially because they have a policy of doing so through the express approval of U.S. Attorneys first. You can bet that the CIA, Secret Service and other high-level agencies that operate in FISA courts are the elite of the elite, when it comes to preparing and applying for warrants. So, your statistics are not nearly as disturbing as you portray them to be.

And this is really a non sequitur anyway. If you don't believe that Al-Awlaki is entitled to any constitutional due process, the quality or lack thereof of the FISA court is irrelevant to your argument. If you do believe he is entitled to due process, it's only relevant in that you should be advocating for even greater protections than what FISA offers. For my part I am perfectly comfortable with FISA.

EDIT: Interesting that we start seeing rejections starting in 2003, around the time Bush was preparing for Iraq.

Damn, Biden gets no respect ...

John McCain, in a rare return to his Version 1.0 days, is passionately arguing that waterboarding played no role in the finding and killing of bin Laden. Bush's former Attorney General had suggested the contrary.



http://www.azcentral.com/news/articles/ ... laden.html

In war, one targets ones enemy, in particular it's leadership. The nationality of a person occupying a leadership position is irrelevant.

That is not the holding of Ramdi. In fact, that is directly contradicted by Ramdi.

I disagree. I don't think you can equate the handling of a person in your custody the same way you handle active combat.