That would have to be your argument, but that's all it is: an argument. Do you see language in Ramdi indicating that Justice Scalia, Justice O'Connor, or Justice Souter will take a liking to it? (Well, their replacements now, as to O'Connor and Souter.) There are many excerpts that I think show the exact opposite. I quoted some good ones from Scalia that no one responded to. He seems pretty adamant that the permitted method of dealing with a traitor-terrorist engaging in war against us is to constitutionally detain him. He's a pretty stubborn guy too, that Scalia.

Just to clarify: I don't believe we are forced to detain a traitor-terrorist, under Ramdi or any other concept of constitutional law.

First, I'm confident the notion that the Constitution does not apply to an American in any circumstance whatsoever would be rejected out of hand by a strong majority of the Supreme Court. Second, if there was some exigent circumstance that actually required his immediate and prompt killing, I'm sure the Court would agree that he got as much process as he was due under the 5th Amendment. Does that circumstance exist here? The evidence isn't exactly overwhelming, but assuming it does, then I believe his killing would be constitutional and the Court would agree. Third, nothing in light of the above two factors favors the argument that a FISA death application would pose any kind of burden on the federal government. To the contrary, there is no burden, and there is no reason not to pursue it that I've heard so far.

From the same link:



Seems to me that's pretty good reason to target al-Awlaki. Kinda like the thought process Bin Laden went through in figuring out whether or not to target Biden.

I don't see an argument against targeting al-Awlaki. Actually, to the contrary. The argument seems to me at least to be there's a method for doing so in place, has been used hundreds of times, and it would take little time or effort to do so.

Am I missing something? Highly possible, but just sayin'.

How do these statistics compare to statistics of other courts in accepting/rejecting search warrant applications?[/quote]

Well, if ruling for the government 100% of the time for 23 years is "fair and impartial," I am wondering exactly what you'd consider biased. 200%? I doubt anything at all could possibly convince you, if you find that satisfactory. You are asking me to believe the executive branch has performed absolutely flawlessly for decades and never overreached once. I find your faith. . .disturbing.

I don't see how it's a matter of faith. It's a matter of math. You can't point to a 100% success rate as being proof of bias when, for example, many other courts around the country have 99% success rates. You need a comparison to measure the statistic to. And I also think the reasons why the success rate would be so high are pretty good ones, which you haven't rebutted.

And, I'm still not sure what your point is anyway. Some biased, crappy process from a FISA court is still better than no process. Improve the court if you think the court isn't fair. How does your unfairness argument negate the constitutional rights of American citizens?

Edit: tyop.

Your reasons might justify a very high rate, maybe even the 99% you give, but not even real courts, which deliberate for lengthy periods of time, hold trials days, weeks, even months long, and often seriously think about cases for dozens of hours, not even these courts get it right 100% of the time, and you expect me to stretch my credulity like salt-water taffy to believe that siding with one party 100% of the time, thousands of times, for 23 years, after the most perfunctory and administrative of hearings, is "fair and impartial."

Not buying it.



If your chances of winning before the court are 0%, why even bother pretending there's any process? Save the money and buy better spying equipment.

Here's the list of federal district judges who currently make up the FISA court:



And here's FISA's appellate court (FISA Court of Review):



I'm not going to accuse you of being Orly-like or anything, but, seriously, you're saying these judges are all unable to be judge-like, to put it politely. Evidence?

Link: http://www.fas.org/irp/agency/doj/fisa/court2010.html

Since I have never said anything about whether the judges, personally, are bad people, their identities do not convince me in the slightest. I have discussed the court and its output, and that output states that out of thousands of applications over 23 years, every single one was completely justified. A 100% perfection rate. Since we're clearly not going to agree on this, and you think a court that decides for one side every single time is apparently the exemplar of impartiality, I'll just conclude my part of this discussion.

Since I have never, ever seen a government agency behave absolutely flawlessly for 23 years straight, never making a bogus claim, never overreaching, never even making a mistake sufficient for ruling against it, I will not buy your frankly fantastic notion that this court, whose rulings we will never, ever see, somehow has encountered that magical unicorn, the government that never, ever makes a mistake, and that every request it makes is completely bona fide, all the time, from the Reagan Administration to the George, Sr. Administration all through Clinton.

If this amazing entity, a government agency composed of angels, actually exists, we need to import it into the government I actually see on a day to day basis. Perhaps we're hiding it because it's so precious and unique.

Actually, I've never made the claim that the court is perfect, or that any court is perfect, or that this court has never made mistakes. It probably has made mistakes, and you are probably right about that.

So what?

The Constitution doesn't require perfection, and neither does the law. We would all like those things, but we can't have them. The Constitution requires a process to be in place, that's all. After that, it is up to the human beings tasked with that process to execute their duties as best as they can. If they fail, there should be appellate review. If that fails too, there's nothing we can do. But these imperfections are still not an argument for having no process at all.

Not trying to over-argue my point with you. I find this discussion interesting.

I think I've been pretty clear that the opinions I state here are just that - my opinions.

And to be fair, that's what you're putting forth as well.



Yes, I see the language, but I also know that justices sometimes have a bad habit of thinking they can change reality to suit their view of the world. Until such time (if ever) that this matter comes before the Supreme Court, all we can do is speculate how they would rule.

But in the meantime, you could try asking a battlefield commander if he's made sure there are no US citizens amongst the groups he's firing missiles at, and if he can't be sure that there are none, can he please show us the FISA order he's gotten allowing him to deprive these possible citizens of their constitutional rights.

Well, sure, and please don't mistake my arguments for a lack of respect for yours. However, I've seen some very forceful arguments on this thread contradicting mine, and none of them have properly addressed Ramdi. I think Ramdi is a very strong predictor of how the U.S. Supreme Court views this issue. And its opinion is the final say, which is why that matters.



Red herring. The situation at hand is the specific, considered, deliberated, thoughtful placement, in writing, through an executive order of the President of the United States, to kill an American citizen. That is a far different situation than a battlefield commander firing missiles at the enemy during the heat of combat.

Somerset wrote:

We did have the case of John Walker Lindh. He was treated differently once he was shown to be a US citizen. I shudder to think what became of the others who were captured with him. IIRC, there was another US citizen that was captured with him but was sent to Saudi Arabia where his parents were from.

Lindh got screwed in my opinion. It was dangerous for anyone to publicly say that for a long time. I'm saying it now. Maybe he'll get a pardon by the time he hits 50.

I agree. I hope with enough time he will have his sentence commuted. Obama does not have enough standing (or whatever it takes) to do it. Maybe at the end of his second term.

Agreed. Not only does Obama not have enough standing, but no Democrat ever will. It will probably take a Republican, and only after many more years have passed since 9/11.

Just to quibble, but FISA would have nothing to do with orders to kill people. That administrative court does not exist to micromanage battlefields, which no court could do, and no court claims the authority to do. The purpose of FISA is simply to rubber stamp 100% of the wiretap orders they get from the government claiming there's some foreign connection. It's certainly not like it's an Article III court or any other sort of real court.

I'm not sure it's a red herring. I do agree that there's a line not to be crossed here, and obviously I drew the analogy of the battlefield commander to be very, very far away from that line in order to show that it exists. The conversation about Lindh is interesting, because I think his situation is a lot closer to the line, and quite probably over it. I see al-Awlaki a little differently. Strategically, I can't see how it's improper to target a very high ranking official in Al Qaeda, regardless of that person's citizenship. From a purely theoretical standpoint I may well be wrong, but from from a practical standpoint, I can't see anyone mounting a challenge to the executive order.

That's what I had thought, but it seemed that some were alluding to FISA authority in this instance.

With regards to the 100% approval rate, how do we know this? Would all the rulings of a secret court be made public? (I'm asking this honestly. I don't know, and am curious).

I believe there were congressional hearings a while back in which the rate of approval of FISA warrants was reported.

On another note -- the news reported tonight that Sarah Obama's (Obama's step-grandmother) life has been threatened by Al Qaeda & the Kenyan government has assigned a security detail to guard her around the clock. See http://www.ndtv.com/article/world/threa ... her-105369
http://www.globalpost.com/dispatch/news ... a-security

They don't release the rulings, but they release some synoptic data. Even more troubling is the skyrocketing number of "National Security Letters," which has hit staggering levels.

But it's not improper to begin with.

If the US government learns that one of its targets is a US citizen, and there is sufficient time and opportunity to obtain a warrant (Al-Awlaki's identity and role has been known for many months, if not years, by now), then it poses no burden to go to a secret court that will review the articulable facts justifying the warrant.

If there isn't sufficient time to do that, that's what the courts deem to be exigent circumstances justifying quick executive action without a warrant. Under either scenario, there is no interference whatsoever with executive priorities, executive secrecy, battlefield decisions, or national security. The only difference is that there's at least one check and balance in place to make sure that the President isn't just making shit up.

Just to quibble, but FISA is not an administrative court. An administrative court specializes in administrative law, and is often an inferior one to Article III courts. Administrative courts are also, often, a subset of some agency of the executive or legislative branches of government.

By contrast, the FISA court is directly managed by the Chief Justice of the United States, who hand-picks the Article III judges who staff it according to his own subjective discretion. Its budget comes from the judiciary, not from the executive branch of government. If you look at how the FISA court is administered, funded and staffed, if anything it is even more removed from executive bias than typical Article III courts. Loh complains about its rubberstamping activities because it is supposedly biased, but he hasn't mentioned a single piece of evidence that would suggest that any individual judge on that court is not doing his or her job, or is not impartial, or is not removed from executive influence.

I should have marked that with a snark icon I suppose. I was denigrating its role by calling it that. It is also, I am aware, a sort of Article III court. Perhaps it is complimenting it to call it an administrative court. After all, every rare now and again an ALJ rules against the agency.

An article today in The Atlantic worth reading: "Slow Dance: Obama's Romance With the CIA"