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Considering today's scheduled testimony by John Brennen in his confirmation hearing to be the new head of the CIA as well as the release of the legal memos which give justification for the controversial drone strike program - I think we're going to find out something we really aren't going to like.

The worst of those, IMO, is likely to be that the Drone Strike Program is Completely Legal as Lawrence Korb described here on Rachel.

The big question of course is "How is it Legal"?  Well, I have a few ideas.

The first problem is that this program is not being conducted as a law enforcement exercise, it's being conducted as an extension of the President's power to wage war.  Generally speaking this is no oversight of how the U.S. conducts a War.  Generals don't need to consult a judge and draft a warrant to call for an military attack.  That doesn't happen, it never has.

So when people question where the authority for these strikes comes from, the answer is that it comes from exactly the same place where U.S. Army Rangers can call for an air-strike in Afghanistan or previously, in Iraq.

Inherent in that power, is the potential that the wrong target will be hit.

This is exactly what we saw in the video of the Helicopter Attack on journalists released by Bradley Manning.

The biggest question that has been asked is - How can such attacks be authorized against U.S. Citizens such as al-Awlaki (who clearly had direct ties to al-quada) and his 16 year-old son (who did not!)?  Thinkprogress among others has focused on this.

It should be noted, as Holder did a year ago, that targeted killings of “specific senior operational leaders” are neither novel nor forbidden by the customary law of war. The United States had the right to target Japanese Admiral Isoroku Yamamoto during World War II, and we were not forbidden from targeting Osama bin Laden because he merely directed attacks against the United States instead of participating in those attacks himself. The DOJ white paper concerns a somewhat more challenging legal question, however — what would have happened if Yamamoto or bin Laden had been born in the United States, and thus enjoyed all rights accorded to U.S. citizens?
I frankly don't think that it would change anything if Yamamoto or Bin Laden had been born in the U.S.  And the reason for that is simple, U.S. Citizens don't get Special Rights when they are overseas when compared to foreign nationals.

Why not?

The Equal Protection Clause is Why Not.  This is something the Supreme Court has confirmed in several cases, including the Habeaus case filed by Yasi Hamdi who was an American Citizen born in Louisiana being held in Guantanamo.

The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could be properly detained as an enemy combatant,[7] without any oversight of presidential decision making, and without access to an attorney or the court system. The administration argued that this power was constitutional and necessary to effectively fight the War on Terror, declared by the Congress of the United States in the Authorization for Use of Military Force Act passed after the September 11th terrorist attacks. The government used its detention authority to ensure that terrorists were no longer a threat while active combat operations continued and to ensure suspects could be fully interrogated.

...

Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold a U.S. citizen indefinitely without basic due process protections enforceable through judicial review.

Through this case Hamdi was able to have his day in court and has since been released.  Further this case acted as a precedent for cases involving non-U.S. Citizens such as Salim Hamdan v Rumsfeld.
Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which established that detainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review before the Combatant Status Review Tribunal. It determined that he was eligible for detention by the United States as an enemy combatant or person of interest.
Under this decision Hamdan, the citizen of Yemen, was granted the same Habeaus relief that had been afforded to Hamdi the U.S. Citizen.

The problem with equality, is that it's equal.

If Habeaus relief couldn't be denied to Hamdi, then it couldn't be denied to Hamdan. If the U.S. has the authority to go after Bin Laden using deadly force because of his involvement with al-Qeada, then it has the same authority to go after al-Awalaki for the exact same reason. This is further made clear when you apply the 14th Amendments Equal Protection Clause fully.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is interesting that immediately after establishing the persons born or naturalized in the U.S. are citizens and affording the rights and privileges of citizens, that the amendment then goes on to address Persons - which would include non-citizens - who may simply be within the jurisdiction of our laws, regardless of how they may have come into that jurisdiction.

We can not execute a citizen or even a non-citizen without due process - however if we can implement a military attack against a non-citizen, we can do the same to even a U.S. citizen who has allied themselves with an enemy of this nation.  Equal is Equal.

And this is the rub, as Thinkprogress further describes.

The Constitution provides that no person may be “deprived of life, liberty, or property, without due process of law,” but it gives no further guidance on exactly how much or what kind of process is “due” to a U.S. citizen who becomes a senior leader of our enemies. Normally, Americans look to the judiciary to provide procedural rights, but federal judges are ill-suited for the kind of swift decision within a narrow window of opportunity that is required in this context. The only circumstances in which the targeted killing of a U.S. citizen could ever hypothetically be justified are ones where the citizen is directly engaging in hostilities against the United States — and there’s a reason judges don’t review generals’ targeting decisions before they’re made. Judges specialize in thoughtful, languid decision-making of the kind that often takes months to consider all arguments on both sides of a dispute. And they typically rely on briefing on both sides of an issue — something that is obviously impossible when one party to a dispute is a top-level terrorist about to be targeted by a military strike. It is true that judges do sometimes handle swifter matters, such as authorizing search and arrest warrants, but judges typically have a deep understanding of criminal law and are familiar with the issues that often arise in the criminal context. Few judges are prepared to make a quick judgment on military matters.

But if judicial pre-approval of military orders isn’t a realistic means of regulating targeted killings, DOJ’s framework calls for the other extreme — leaving the decision to kill a senior enemy combatant in the hands of “high-level” executive branch officials who are ultimately responsible to the President. This framework ensures both that decisions can be made swiftly and by officials with a broad understanding of both the details of a particular operation and of the laws governing war. But it also means that there is little external check on an executive branch eager to use its power irresponsibly. And even if you trust President Obama to not abuse a power to order targeted killings, there is no guarantee that the next president can also be trusted.

Between the two extremes, DOJ is probably right as a matter of law that the administration can act without independent oversight. Regardless of the wisdom of the broadly worded Authorization for Use of Military Force against Al-Qaeda and related terrorist forces, the AUMF is a duly-enacted Act of Congress, and the President’s wartime power is at its apex when he acts “pursuant to an express or implied authorization of Congress.

Another argument against the Drone Strikes, has been the argument that the U.S. has not "declared war" with countries such as Pakistan, Yemen and Somalia where the majority of the strikes have been carried out.  But that, unfortunately, is not what the AUMF says. http://en.wikipedia.org/...
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
This Authority was granted to President Bush and remains in effect with President Obama allowing him to attack any person, organization or nation that he determines is engaged in terrorism.

Even if he gets it wrong.

Many people are troubled by the "imminent" definition that has been shown to be highly broad in the already released White Paper on the Drone Memos.  Frankly compared to the AUMF, that restriction is actually an improvement.  Not a very good improvement, but an improvement none-the-less.

So that leaves us in a very uncomfortable position.  On a certain level these strikes may very well be fully legal, but that doesn't mean that they are moral or "wise" as was alleged by Jay Carney this week.

The efficacy of target selection seems to clearly have some problems.  The lack of transparency in choosing targets, and the lack of after-the-fact judicial relief for collateral damage or frankly - incorrectly chosen targets - remains outstanding.

If we're dealing with persons in countries which will not cooperate with us in capturing them - which clearly would exclude persons inside the U.S. (posse comitatus) or in friendly countries such as those in Europe where we have extradition treaties in place - then what are our options other attempting more bin Laden-ish strikes using U.S. Special Forces?  We can't do that in every case.  And we have to remember there's a reason we haven't implemented such raids on a regular basis - and that reason is called "Black Hawk Down".  In fact the Armed Drone  program was originally started by President Clinton after his failure to capture Aristide in Somalia and his failed Cruise Missile Attack on Bin Laden back in 1998.  This was intended as the Solution, now it's brought us a whole new set of problems.

If we want to bring this process out of the darkness of national security and war, and into the light of law enforcement, warrants and judicial oversight - we may need to consider a full and outright repeal of the AUMF and functionally End the War.

Yet when we can still have attacks such as the one we saw last September 11th at our Consulate in Benghazi we have to realize that we do have enemies who are willing to use military equipment and mortars against us, then we need to use the best tools we have against them.  Military tools.

Even if use of that Military Firepower (whether it's a Raid, Drone or B-2 Bombing) can sometimes (almost always) hurt innocents in the process, this is a very sad truth indeed.

Vyan

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