DOJ Memo on Extrajudicial Killing of US Citizens

[Zwinmar]

yep USC 311
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

[Wing Commander MAD]

It's not a rhetorical question, because the paragraph you quoted doesn't make any reference to American citizens.

The Constitution is the supreme law of the land in the US, and the Bill of Rights is basically outlining what the government can't do. It doesn't specify citizens in there, so I would argue that that applies to anyone including non-citizens. You could, however, make the argument that since the Constitution is a set of laws governing the United States the protections would be only applicable to U.S. citizens, since a government generally doesn't hold jurisdiction over another nations citizens except in very certain circumstances generally specified in treaties. I'm certain this argument has been made before on this very board in defense of the drone strikes. So in answer to what is so special about U.S. citizens, it's that the government is without a doubt forbidden from executing them without due process except for under a very few circumstances, while it is probably a more grey area open to legal interpretation whether those same protections would apply to non-citizens. The Duchess makes a very good point, one I'm not sure how I'd argue against it. Though I would caution that just because a potential action is legal and applicable to a situation, does not necessarily mean it should be exercised. Nations killing their own citizens under circumstances that are somewhat new/uncommon for that society certainly would be a good time to weigh short term gains against the potential long term consequences of said action for that society.

[Alyrium Denryle]

The targets aren't in the land or naval forces, nor in the militia.

All adult males are in the militia in the United States per federal law, so the extension of summary justice for treason and desertion by taking up cause with the enemy is not automatically unconstitutional.

No chance that will ever be abused eh?

We do not give court trials to military targets. Senior leadership of an organization engaged in armed hostilities towards the US are legitimate military targets. The fact that there is any additional consideration at all given to these men because they are "American Citizens" should be considered a bonus.

What exactly is a military target? What safeguards to we have to ensure that only military targets will be so killed?

If someone is a military target, OK. I dont have a problem shooting someone if it is necessary. So if someone is shooting at you, or you know they are planning to lay siege to a military base, go ahead and hit them.

Putting a person on a kill list on the say-so of some administrative official with no clearly delineated process and no judicial review authority however is dangerous. Particularly if the executive branch is empowered to do so to people over whom they claim legal jurisdiction. As it stands, there is absolutely nothing preventing the executive branch from using this power for political rather than military reasons. Glenn Greenwald could be targeted under this policy. There is no judicial review, so no recourse should it happen.
Nothing but the integrity of people in the executive branch. Dependence on the integrity of a politician is NEVER a sound basis for policy.

I noticed you highlighted "5. No provision of this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects." Are civilians that take up arms or join the enemy still considered "civilians"?

No, but that begs the question that the person so targeted has taken up arms against the US. I can list a number of people who our government has tortured, who have done no such thing. Including citizens of the US and Germany, as well as most of the detainees in GITMO. Do we really trust a government who cannot get POWs right to be able to manage killing the right people? Do we trust said government not to abuse that power for political reasons, when we have recent precedent from the McCarthy Era and the Hoover period in the FBI to the contrary?

All adult males are in the militia in the United States per federal law, so the extension of summary justice for treason and desertion by taking up cause with the enemy is not automatically unconstitutional.

They take up arms with the Enemy because the administration says they do, we we should ALWAYS trust the administration? Should we execute conscientious objectors for desertion as well?

I seem to remember an issue with WMDs a while back....

[The Duchess of Zeon]

I would note that though there is a legal method for summary justice against males ages 17 - 45 (which I believe covers every American citizen in al-Qaeda killed so far) during a time of war or public danger, with the later certainly legally covered by a congressional use of force declaration as has been considered by the courts to be equivalent to a declaration of war constitutionally, that technically the form for this has not been followed, because it only occurs when "in actual service". However, conscription is still legal and constitutional and so is a call-up of the militia, so technically you could simply activate an American citizen fighting for al-Qaeda, and then declare them to be engaging in treasonous and insubordinate behaviour and proceed to terminate them. That IS a legal path for dispensing with a trial and due process, but it has not actually been followed.

[Alyrium Denryle]

I would note that though there is a legal method for summary justice against males ages 17 - 45 (which I believe covers every American citizen in al-Qaeda killed so far) during a time of war or public danger, with the later certainly legally covered by a congressional use of force declaration as has been considered by the courts to be equivalent to a declaration of war constitutionally, that technically the form for this has not been followed, because it only occurs when "in actual service". However, conscription is still legal and constitutional and so is a call-up of the militia, so technically you could simply activate an American citizen fighting for al-Qaeda, and then declare them to be engaging in treasonous and insubordinate behaviour and proceed to terminate them. That IS a legal path for dispensing with a trial and due process, but it has not actually been followed.

Nor should it ever. We would also have to implement a general call up of the militia (read: the draft) before that could be done. Activating one person for the purposes of murdering them for treason would rightly be seen as a blatant abuse of... well, everything.

[The Duchess of Zeon]

Nor should it ever. We would also have to implement a general call up of the militia (read: the draft) before that could be done. Activating one person for the purposes of murdering them for treason would rightly be seen as a blatant abuse of... well, everything.

Precedent allows for activation of individuals with special skills who are not part of the normal draft, so that is inaccurate to a certain extent. It could certainly be argued that they are then being given a chance--by reporting for duty--to prove their loyalty to the United States, particularly if the notice is delivered to them emphatically (say, hack their phone). They can show up and, since we don't have a criminal case against them apparently, provide intelligence on al-Qaeda to the nation to which they owe loyalty. If they ignore the notice, killing them at that point actually seems a bit more reasonable.

As a corollary to this, though, a decent country wouldn't then charge them with crimes. I have a feeling we would, which bothers me at some level. Let's say some 17 year old kid goes off to a training camp in Pakisan... This is basically an ultimatum: You can come home and join the army and serve the country you owe loyalty to instead of them, and it's no harm, no foul. If you ignore this notice, you will, eventually, die. If someone obeyed the notice and actually came home and then was charged with 50 different felonies and sentenced to 300 years in prison, I'd say it was just being used as a legal device with no ethics behind it, yeah.

[Alyrium Denryle]

Nor should it ever. We would also have to implement a general call up of the militia (read: the draft) before that could be done. Activating one person for the purposes of murdering them for treason would rightly be seen as a blatant abuse of... well, everything.

Precedent allows for activation of individuals with special skills who are not part of the normal draft, so that is inaccurate to a certain extent. It could certainly be argued that they are then being given a chance--by reporting for duty--to prove their loyalty to the United States, particularly if the notice is delivered to them emphatically (say, hack their phone). They can show up and, since we don't have a criminal case against them apparently, provide intelligence on al-Qaeda to the nation to which they owe loyalty. If they ignore the notice, killing them at that point actually seems a bit more reasonable.

As a corollary to this, though, a decent country wouldn't then charge them with crimes. I have a feeling we would, which bothers me at some level. Let's say some 17 year old kid goes off to a training camp in Pakisan... This is basically an ultimatum: You can come home and join the army and serve the country you owe loyalty to instead of them, and it's no harm, no foul. If you ignore this notice, you will, eventually, die.

What is this precedent (court reference or somesuch), and does it apply when the draft is not normally in force? If not, no dice. Even if it was, there is probably a reason it has never been used in order to remove inconvenient individuals.

[White Haven]

The point being made here, I think, is not that the U.S. should use the archaic militia loophole to legally justify the killing of someone the government deems a target, but rather that the U.S. implicitly acknowledges (through its refusal to take advantage of that justification) that it's an archaic piece of law that shouldn't be used for that purpose. The irony, of course, is that the lack of a proper classification for a terrorist target is also based on outdated laws, and is also being ignored by the U.S. government.

The point I take away from both of those points is that it's actively dangerous to leave laws that have passed their sell-by dates on the books in the first place. There are all manner of things I could say further along those lines, but that would risk derailing this thread into even more of a trainwreck than it's already going to be, so I'll leave it at that. Suffice to say that universal compulsory militia service hasn't been a thing for a fuckoff long time, and terrorism has been a more and more high-profile thing for decades, ant the fact that laws and treaties haven't been scrapped and updated to keep pace with --fucking reality-- is a dramatic facepalm moment.

[Thanas]

If there is evidence that is reviewed by an independent judiciary it would not be a problem. The fact that this does not happen automatically calls into question the legitimacy of that policy.

[Dr. Trainwreck]

People, weren't German spies passed through court martial? Weren't there cases of both enemy agents and traitors executed in time of war? Please. If someone deserves a killing so badly, pass him through a court martial if nothing else. Current policy isn't different from walking up on a dude and telling him "Al doesn't like your face" before whacking him with a baseball bat.

[Malivotti]

For someone to receive a military court martial he must qualify for such, the right to be considered a POW, and thus receive the rights and protections afford to such, or the rights and protections afford to a civilian in a war are listed in the Geneva Convention. Off the top of my head they must be lead by a CO, must wear a uniform or distinguishing form of ID that is visible, must carry their arms openly and must follow the laws and rules of war. If these conditions are not met then the person has no rights or protections and may be treated as criminals under military law which can include summery executions.

Spies historically in time of war have no protection. In fact spying is considered to be as lower than piracy in the eyes of military law.

Note, commandos are a whole other ball of wax with their own set of rules.

[Edi]

I would note that though there is a legal method for summary justice against males ages 17 - 45 (which I believe covers every American citizen in al-Qaeda killed so far) during a time of war or public danger, with the later certainly legally covered by a congressional use of force declaration as has been considered by the courts to be equivalent to a declaration of war constitutionally, that technically the form for this has not been followed, because it only occurs when "in actual service". However, conscription is still legal and constitutional and so is a call-up of the militia, so technically you could simply activate an American citizen fighting for al-Qaeda, and then declare them to be engaging in treasonous and insubordinate behaviour and proceed to terminate them. That IS a legal path for dispensing with a trial and due process, but it has not actually been followed.

Awlaki's son was 16 when he was targeted for killing with a drone.

[Alyrium Denryle]

For someone to receive a military court martial he must qualify for such, the right to be considered a POW, and thus receive the rights and protections afford to such, or the rights and protections afford to a civilian in a war are listed in the Geneva Convention. Off the top of my head they must be lead by a CO, must wear a uniform or distinguishing form of ID that is visible, must carry their arms openly and must follow the laws and rules of war. If these conditions are not met then the person has no rights or protections and may be treated as criminals under military law which can include summery executions.

Spies historically in time of war have no protection. In fact spying is considered to be as lower than piracy in the eyes of military law.

Note, commandos are a whole other ball of wax with their own set of rules.

Determining whether or not someone is or is not an illegal combatant is also a thing requiring a regularly constituted court of competent jurisdiction. If you catch someone on a battlefield, that might be one thing, but this is not a case of some dude shooting at soldiers from a farm house being shot in battle or shot because the soldiers in question do not have the logistics to take prisoners and let the courts deal with it, which would be the usual practice barring such exigencies. In fact, most of the population of Gitmo were turned in for bounties by Opium Lords, and are actually innocent of being involved with violence at all. So have numerous victims of our rendition program.

This is a policy whereby anyone can be put on a murder list, irrespective of whether or not they are a combatant at all, because there is no evidence requirement other than the say so of an administration official. Or is this distinction not sinking through your thick skull? Are you one of those people who believe that if someone is accused of a crime they must be guilty by definition?

[Malivotti]

This is a policy whereby anyone can be put on a murder list, irrespective of whether or not they are a combatant at all, because there is no evidence requirement other than the say so of an administration official. Or is this distinction not sinking through your thick skull? Are you one of those people who believe that if someone is accused of a crime they must be guilty by definition?

Yes anyone can be put on the target list however the names on that list are not just drawn from a phonebook or list of passport docs or some random number generator. For someone to end up on a target kill list they have to come to the attention of the various intelligence agencies. The agencies have to then compile the list of names from various sources, the names are likely vetted by some in house process to make sure that Akmed the Bomber is not really Joe Smith working undercover and that the target is worth the effort, or is it more profitable to keep the target alive and use the target to find more high value targets. The kill list is not 10 names and some desk weenie is told pick to 3 names because we have to meet quota.

We the civilians cannot see what goes into making the target list, the methods are secret to protect the intelligence sources and assets that make the kill list.

As for me personally, I'm in favour of innocent until proven guilty, I think Gitmo is a blight and stain on the honour of the US and Canada and the people inside should be given fair and open trials, civilian trials or military trial depending of the state of the accused. I hate the idea of rendition and torture by proxy. My personal moral belief is once you accept a person's surrender, once you take that person prisoner you and the country whose uniform you wear have a responsibility to that person to see them treated as you are required to do by the law.

What I can consider and acknowledge is sometimes what is right is not always moral, and when you sit behind the desk as the President of the US and are told by people that you trust to advise you and they tell you and lay out the evidence of why this person has to die and why it's safer to use drone, those are good reasons.

I myself may never know the reasons why this or that person had to die but I chose to believe that there is a reason why that the order given to have that person killed and the order was given in good faith.

[Edi]

So, if these methods had been available at the time, would it have been okay to use them at Ruby Ridge or Waco Texas to take out the people engaging in insurrection against the US government because they posed a threat to US personnel when approached through conventional means?

[Alyrium Denryle]

Yes anyone can be put on the target list however the names on that list are not just drawn from a phonebook or list of passport docs or some random number generator. For someone to end up on a target kill list they have to come to the attention of the various intelligence agencies. The agencies have to then compile the list of names from various sources, the names are likely vetted by some in house process to make sure that Akmed the Bomber is not really Joe Smith working undercover and that the target is worth the effort, or is it more profitable to keep the target alive and use the target to find more high value targets. The kill list is not 10 names and some desk weenie is told pick to 3 names because we have to meet quota.

In house process, no checks on their power. No guarantee that the person the do kill is actually a combatant and not someone the administration simply finds politically inconvenient. No actual necessity of an in-house process at all. It is arbitrary.

We also have courts with closed proceedings for dealing with sensitive FISA warrants, why cant we use something similar? How exactly is this process constitutional at all? We do have a government that must live with the powers it has been enumerated to have. How on earth do we protect those who are innocent from such a process?

We the civilians cannot see what goes into making the target list, the methods are secret to protect the intelligence sources and assets that make the kill list.

And so to protect those individuals, we give up due process of law. Once that box is open, you cant close it again. Due Process is the underpinning of all our rights, and has been since Magna Carta. With it gone, without Judicial Review, the executive branch can do whatever it wants without recourse. Dont like an activist group like Occupy? Put them on a terror list and start killing people. There is no redress in the courts. The whole process is secret. Why not do it?

As for me personally, I'm in favour of innocent until proven guilty

Pardon me, if I do not fucking believe you.

What I can consider and acknowledge is sometimes what is right is not always moral, and when you sit behind the desk as the President of the US and are told by people that you trust to advise you and they tell you and lay out the evidence of why this person has to die and why it's safer to use drone, those are good reasons.

And you balance that against the requirement that the population and the rule of law itself be protected from abuses of power how, exactly?

Let us assume for a moment that a journalist digs up documents that lay plain that the United States has committed a War Crime. That is not much of a stretch, we have committed a few. Let us assume it was a serious war crime. Balkans Style. Institutionalized gang rape of Iraqi women or something. What is stopping the feds from using this due-process-free and completely opaque freshly claimed power from simply making them disappear, or killing them in a drone strike the next time they leave the country? The list is secret. The process is secret. That means both are subject to the arbitrary whims of whoever has their fingers on the pen. Even if our current president would not do it, a future one bloody well might.

I myself may never know the reasons why this or that person had to die but I chose to believe that there is a reason why that the order given to have that person killed and the order was given in good faith.

And does history bear this out? Does the history of human civilization--or even recent administrations which have engaged in indefinite imprisonment, rendition, and torture direct and proxy--bear out this blind and unshakable faith you seem to have? Does swearing an oath to defend the constitution suddenly make people angelic beings or something?

Even if we assume good and decent motives on the part of the president and his or her functionaries, our intelligence agencies fuck up frequently. The last time I know of that they did, they tortured an 19 year old US citizen in Kuwait who was just visiting an uncle. What if they had simply killed him? Would you be OK with this? Another case involves torturing a german guy for 4 months--including rape and starvation--then "repatriating" him to a desolate mountain road in Albania with no money and no identification such that he might die. Then there are the drone strikes on the funerals of our actual military targets that kill bucket loads of children.

[Aaron MkII]

It was always my understanding that though they are not legally a combatant, as a criminal they basically have to be treated as a POW until it can be determined what they are by a tribunal. And if it's found that they are a criminal then they should be handed over to the country for trial. Or held until such trial is possible.

There is no carte blanche to do whatever you want.

And quite frankly, having been in the military I don't trust anyone in the chain of command to do this properly. The last ten years have handly put the lie to disobeting illegal or unethical orders. Which I suppose is what you get when you brainwash people to obey and then toss in a list of exceptions.

[Vendetta]

These people have quite clearly and unambiguously taken up arms against the United States

Here's the thing.

This memo indicates that there is no requirement, at all for there to be any evidence that this is the case, and certainly no evidence that such evidence which might exist is ever shown to anyone.

So, it's not actually as clear and unambiguous as claimed. And that's the problem. Secret evidence is no evidence at all, and secret standards of evidence are no standards at all.

[Dr. Trainwreck]

For someone to receive a military court martial he must qualify for such, the right to be considered a POW, and thus receive the rights and protections afford to such, or the rights and protections afford to a civilian in a war are listed in the Geneva Convention. Off the top of my head they must be lead by a CO, must wear a uniform or distinguishing form of ID that is visible, must carry their arms openly and must follow the laws and rules of war. If these conditions are not met then the person has no rights or protections and may be treated as criminals under military law which can include summery executions.

Spies historically in time of war have no protection. In fact spying is considered to be as lower than piracy in the eyes of military law.

Note, commandos are a whole other ball of wax with their own set of rules.

Well, commando units are actual and recognized military personnel. Up until WW2 at least, even without any kind of legal protection, it was customary not to just execute commando units because it was understood they were enemy soldiers.

But anyway, is there nothing, absolutely nothing in the shape of due process? No court martials, how about tribunals, or an actual court with closed proceedings or not? Even a trial in absentia would be more legal than the current whacking-style process, since you can at least present the argument that you can't reasonably expect for the suspect to appear if he's outside the US.

You know, what matters is that they are convicted fairly, no matter how obvious the guilt and needless the formalities. You can't just go "well, he's clearly guilty so no need for trial" because, as others have pointed out, tossing the law aside in the clear-cut cases will tempt someone to do the same for the less clear-cut. And wait, this is important: the fewer the chances for a conviction, the bigger the incentives for an official to say screw convictions.

Now, recently there were some people saying that police shouldn't stop you for an alco test because it presumes the defendant's guilt, thus violating the innocence principle. I wonder what their opinions are on this matter. Please, people, indulge?

[Aaron MkII]

Innocent until proven guilty.

Yes, certain considerations require their detention but there is absolutely no reason why they can't be treated with the same respect we are supposed to treat POW's with.

And if you can't prove their guilt, they go free. Or no execution via drone.

[Wing Commander MAD]

Dr. Trainwreck, actually I'm pretty sure the drone strikes are more legal than a trial in absentia would be. Not that I agree with either, but IIRC trail in absentia being one of the few things the U.S. Government is forbidden from outright doing under any circumstances. Drone strikes, at least in theory, give you some wiggle room with regards to the militia bit with American citizens and whether or not protections in the Constitution even apply to non-citizens. Of course I may be wrong, in which case I expect someone will quickly correct me.

[TheHammer]

The disconnect here seems to be some of you are viewing these as executions for crimes rather than the killing of enemy leadership in a wartime situation. The difference is as fundamental as it being "ok" to kill enemy soldiers on a base via cruise missile, but not ok to summarily execute them if they have surrendered.

Think of it this way: say that during the civil war, the Union had intel on the location of Robert E. Lee's headquarters and they had a canon capable of hitting those headquarters from a distance. Would it have been a violation of his civil rights for Lincoln to order the military to fire cannon shot against those head quarters? It's the same damn thing.

[White Haven]

In many situations, it's a good deal murkier than that. It's more as if the Union had the aforementioned cannon, and they had it aimed at someone they claimed was almost as good a general as Robert. E. Lee, but that no one else had ever heard of and that the Union refused to disclose the military record of. Even if we accept for the sake of argument that all these prospective targets count as soldiers, whether or not they count as serious leadership targets...who knows? The Union claims to know, but they won't tell anyone how. Should we just let them fire inter-state ballistic cannons at targets they refuse to account for?

[Alyrium Denryle]

The disconnect here seems to be some of you are viewing these as executions for crimes rather than the killing of enemy leadership in a wartime situation. The difference is as fundamental as it being "ok" to kill enemy soldiers on a base via cruise missile, but not ok to summarily execute them if they have surrendered.

Think of it this way: say that during the civil war, the Union had intel on the location of Robert E. Lee's headquarters and they had a canon capable of hitting those headquarters from a distance. Would it have been a violation of his civil rights for Lincoln to order the military to fire cannon shot against those head quarters? It's the same damn thing.

You are presuming that all the people claimed to be military leadership actually ARE military leadership. You don't seem to read very well. There is nothing stopping the union from turning that cannon on anyone else, in this case. There might be good reason for taking out a particular target, but so long as the policy exists that permits the state to take out ANY target without any sort of recourse whatsoever, there is nothing other than personal integrity (which, as we all know, counts so very very much ) stopping them from using it on inconvenient persons.

It would be and is one thing for the military to use drones to take out military personnel and facilities so long as they have civilian oversight. If they get it wrong and blow up a school full of children, or turn the drones to a stateside political enemy, you can drag them before a court or send them off to the Hague in chains. It is another for a political body to put people on a murder list and prevent the courts from intervening by hiding behind Executive Privilege.

[Zaune]

In many situations, it's a good deal murkier than that. It's more as if the Union had the aforementioned cannon, and they had it aimed at someone they claimed was almost as good a general as Robert. E. Lee, but that no one else had ever heard of and that the Union refused to disclose the military record of. Even if we accept for the sake of argument that all these prospective targets count as soldiers, whether or not they count as serious leadership targets...who knows? The Union claims to know, but they won't tell anyone how. Should we just let them fire inter-state ballistic cannons at targets they refuse to account for?

Further to which, even if they can prove that a particular individual is a senior officer in the enemy's chain of command, is it really worth a high level of collateral damage to take them out?

Let's flip the scenario around for a second. Suppose the Taliban got word from a HUMINT source in the US Army* that a high-ranking officer would be travelling from Kabul to a particular FOB to conduct an inspection at a particular date and time, and travelling overland along a particular route. They plant a massive IED in the Kabul suburbs and take out said high-ranking officer and his staff, but also kill a dozen Afghan civilians who had the bad luck to be in the blast radius. The officer's immediate subordinate gets a brevet promotion and takes over his duties, the inspection at the FOB is put off for a few days while the Army waits for a couple of helicopters to be available, and the next-of-kin of those dead Afghan civilians are now royally pissed off. How much have the Taliban actually gained?

* And it is an entirely reasonable supposition that yes, they do have some.