Obama sounds more like Bush every day. In doing so, he is fulfilling part of his destined role in the American system of divided powers: holding onto the very executive powers he campaigned against. This is familiar territory; before he was like a kid criticizing his parents. Now he’s the parent, who has quickly figured out that mom and dad knew something.
The war powers are rightly expansive. It is a misnomer and exaggeration to talk about the President’s right to “kill Americans” when these Americans are born of foreign parents merely passing through. The dude in Yemen and most other “American” al Qaeda have nothing in common with any of us. And, more important, they’ve picked a side and don’t deserve special treatment on account of it. No one thought we had to give some special treatment to Americans found in Nazi uniforms (other than to try them for treason).
As for the domestic use of drones or other war powers, this is simply logical. Wars do not somehow end at our borders. It’s in fact kind of weird that so much of our military operates offensively and overseas; it’s supposed to exist chiefly to defend American territory. Until 1900 that’s chiefly how it was used. It’s conspicuous absence in that role today is why we have two Departments of Defense, one de facto and with the strange name, “Department of Homeland Security.”
So the use of war powers domestically is simply a return to historical use of the military. No one back in the day thought a President would need a court order to open fire on uniformed enemy Japanese or Germans infiltrating America in WWII. I concede that it gets a little trickier in the anti-terrorist arena. Its best analog is probably the Indian Wars or the pursuit of saboteurs in WWI and WWII. This type of war and this type of enemy involves elements of old-fashioned spying, ordinary crime, and traditional enemy combatants. He wears civilian clothes often, blends in, but carries out acts of war. We often don’t know his identity other than through a combination of intelligence-gathering and law enforcement investigations.
With this kind of enemy, the risk of mistakes are comparatively higher than in the case of a uniformed enemy. What if the al Qaeda member is in a car and you “know” it because of signals or other intelligence? What if you get it wrong? It is discomforting how often civilians are whacked mistakenly in Iraq and Afghanistan. It would be worse if this feature of the war were brought home. After all, look at how the Southern California cops were lighting up random civilians last month in the search for renegade cop Chris Dorner.
It all comes down to the central question: do you think we’re in a “real war” with al Qaeda? I think we are and should not forget it, in spite of these peculiarities of a terrorist threat. And that means we should dispense with habeas review for military tribunals, handwringing about GITMO, and make a liberal use of drones. Obama is unfortunately schizophrenic on this issue, forgetting to beef up embassies on 9/11, but embracing an even more expansive and aggressive concept of presidential power than prevailed during the Bush administration. But my principles and my notions of legality do not shift simply because an anti-American moron is currently our President.
The whole situation has elements of comedy. Obama ,who would shut down GITMO and rail against Bush so self-righteously in 2004 and 2008, has not only done none of these things, but has taken this rather broad take on the use of missile-armed drones.
While I defend so little that Obama has done, I do defend his use of drones and SEALs to get bin Laden, and he does have the same legal rights as Bush or any president had, including the power to identify, separate, and terminate people in al Qaeda.
Obama’s numerous other demerits and penchant for aggrandizement are just reminders that we should be pretty darn careful whom we give that power to. And obviously we should always be jealous of our own countervailing powers–to vote, to speak, to bear arms–if those presidential and other federal powers should ever be turned against real Americans.
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It all comes down to the central question: do you think we’re in a “real war” with al Qaeda?
Based upon the actions of the US government, I’d say no. If we were in a real war with al-Qaeda, you’d see a determined effort to secure our borders and cut down on immigration from muslim lands. Though our borders could probably never be sealed, leaving them wide open where thousands of people can safely cross them per day is not exactly the actions of a nation who believes it is in a war.
Likewise offering diversity visa lotteries to people from the part of the world with the most sympathies for al-Qaeda is not something a nation at war would do. We did not ontinue to take Japanese immigrants during WW2.
If we were in a real war, the government would probably try to repatriate muslims back to their homelands which would be much more humane than what we did to the Japanese in WW2.
Further, in a war you sometimes make alliances with the enemy of your enemy to facilitate the effort. Thus we allied with Stalin against Hitler. But today we actually seem to be aiding al-Qaeda, albeit indirectly, by helping to overthrow the regimes in Libya, Egypt, Syria and elsewhere.
I think we are in a bit of a lull in the war against Muslim terrorism, at least when it comes to the domestic threat. The war in Iraq, as well as other factors, have resulted in a Middle East in turmoil, and most of Al Qaeda’s energies are now directed internally in the Muslim world. Once things shake out there, which could be a few years or many years, Al Qaeda will redirect its energy towards us. And when it does, it will probably do so from a position of greater strength and organization.
Of course there is still some effort devoted to terrorist attacks in the West, especially by Muslims living in the West, and even if just one or two of the plans turns out to be successful it will still have an awful big impact.
You raise a good point; this is more proof our leaders, including Bush himself, have been schizophrenic on this issue. But there’s no reason why we who think we’re in a real war shouldn’t ask for it to be treated as so.
That all said, outside of perhaps declared zones of martial law, there is probably good reason to have severe restrictions on military actions at home under principals of Posse Commitatus and the like. Within our borders, and outside of true war zones, the preference should almost certainly be for law enforcement actions outside of extreme cases, like imminent 9/11 type attacks.
That all said, outside of perhaps declared zones of martial law, there is probably good reason to have severe restrictions on military actions at home
Exactly.
The real question is, who makes the decision as to what constitutes an “outlaw enemy combatant” (i.e. this person is outside the protection of law) and what checks and balances are there on the person(s) making this decision.
I would not necessarily have been troubled by a drone attack on Christopher Dorner, as he was a fugitive and legal proceedings to arrest him had already occurred – and if he was not indicating that he would surrender himself, then such an attack might be warranted. Still, there would need to be caution about making certain one did not attack the wrong person, and if someone did make such an attack on wrong identity (and in fact, someone did attack the wrong people) someone should be held accountable.
But the difference is that Dorner’s outlaw status was confirmed by an arrest warrant and he was already scheduled to be brought into custody, and any such attack would be a response to his resisting such an arrest, not as an alternative choice to arresting him.
I would be very concerned about secret attacks without some form of judicial review.
No one thought we had to give some special treatment to Americans found in Nazi uniforms (other than to try them for treason).
TRY them? Why would we try them? I thought you wanted us to summarily execute them.
That all said, outside of perhaps declared zones of martial law, there is probably good reason to have severe restrictions on military actions at home under principals of Posse Commitatus and the like.
And that is the problem; a lot of the talk about “unlawful enemy combatants do not have these rights, whether they are found in the U.S. or elsewhere” amounts to a declaration of martial law. The concern is not, of course, about unlawful combatants, but about people thought to be unlawful combatants.
Within our borders, and outside of true war zones, the preference should almost certainly be for law enforcement actions outside of extreme cases, like imminent 9/11 type attacks.
I think that’s pretty much what the Paul caucus was asking for.
I would say that if an American were found in Nazi uniform during combat he should be treated like anyone else and killed, if he surrendered he should be taken as a POW, and if determined to be an American should be tried for treason. Summary execution should only occur for unlawful combatants, those found fighting on battlefield out of uniform, and things like this.
There is legislation that I had not given enough consideration that clarifies the use of military domestically, namely, the Posse Commitatus Act and the Insurrection Act. Under these, there is no real reason or justification to shoot missiles at home or otherwise use the military when there has not been a law and order breakdown.