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Fri Feb 8, 2013, 02:50 PM

Senator: Let's Have a Targeted Killing Court

Senator: Let's Have a Targeted Killing Court

—By Adam Serwer

The United States should set up a secret court that would consider the use of lethal force against American terror suspects abroad, Sen. Angus King (I-Maine) said Thursday at the Senate intelligence committee hearing on White House counterterrorism adviser John Brennan's nomination to head the Central Intelligence Agency.

"Having the executive be the prosecutor, judge, jury and executioner is very contrary to laws and traditions of this country," King told Brennan. King suggested that the court would involve a "FISA-type process," referring to the Foreign Intelligence Surveillance Court, the secret court that considers requests for surveillance against people who are suspected of working for foreign governments. "At least that would be some check on the activities of the executive." The days, weeks, and months-long process of determining whether someone can be targeted, King suggested, meant that targeted killing was not like soldiers shooting each other on a traditional battlefield and should be subjected to some form of judicial accountability.

Brennan was negative to non-committal, telling King that although the idea was "worthy of discussion," that courts were traditionally used for adjudicating guilt or innocence, not to prevent the sort of "imminent" threat Brennan claims lethal force is reserved for. A recently leaked Department of Justice memo on targeted killing, however, defines "imminence" as membership in a terrorist organization, not necessarily involvement in an unfolding plot that threatens American lives. Nor are courts used solely to adjudicate guilt—King noted that judges also approve warrants.

When asked about the targeted killing process earlier in the hearing, Brennan said that the administration goes through "agony" before determining whether a strike should take place. But the agony isn't great enough for Brennan to want someone outside the executive branch to double-check the administration's decision. Speaking to Senator Ron Wyden (D-Ore.) later in the hearing, Brennan said "any American who joins Al Qaeda, will know full well that they have joined an organization which is at war with the United States." That's true, but saying someone has joined Al Qaeda isn't the same as proving it.

http://www.motherjones.com/mojo/2013/02/senator-lets-have-targeted-killing-court

It's surprising how little discussion there is after this hearing. The Hagel hearing is still getting more focus.

In any case, here is a clip of Wyden from the Brennan hearing.



Anyone can surrender. In fact, members of al Qaeda have surrendered.

See the end of Wyden's statement and Brennan's final comment, starts at 3:15:00

http://www.c-span.org/Events/Senate-Committee-Hears-from-CIA-Director-Nominee/10737437877/


5 Practical Ideas To Rein In The Presidential Power To Kill Americans
http://www.democraticunderground.com/10022328063


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Arrow 16 replies Author Time Post
Reply Senator: Let's Have a Targeted Killing Court (Original post)
ProSense Feb 2013 OP
leveymg Feb 2013 #1
ProSense Feb 2013 #7
leveymg Feb 2013 #10
ProSense Feb 2013 #11
leveymg Feb 2013 #13
ProSense Feb 2013 #14
leveymg Feb 2013 #15
ProSense Feb 2013 #16
Kolesar Feb 2013 #2
Initech Feb 2013 #3
dorkulon Feb 2013 #4
winter is coming Feb 2013 #5
ProSense Feb 2013 #6
winter is coming Feb 2013 #8
Tierra_y_Libertad Feb 2013 #9
dballance Feb 2013 #12

Response to ProSense (Original post)

Fri Feb 8, 2013, 02:54 PM

1. Mr. President, let's have a new Executive Order reversing the one that authorized the "kill lists"

that name US Citizens.

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Response to leveymg (Reply #1)

Fri Feb 8, 2013, 03:18 PM

7. Again,

"Mr. President, let's have a new Executive Order reversing the one that authorized the 'kill lists' that name US Citizens."

...the issue of how to deal with Americans who take up arms against their country is still going to have to be dealt with. The notion that they're simply going to be ignored is not realistic.

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Response to ProSense (Reply #7)

Fri Feb 8, 2013, 03:39 PM

10. Did I suggest they should be ignored? No. Also, your comment assumes they took up arms, which isn't

in evidence, at least in the case of the three US Citizens killed by drones in Yemen.

I am suggesting, however, that this is a problem created by an Obama Executive Order that can also be solved in the same manner.

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Response to leveymg (Reply #10)

Fri Feb 8, 2013, 03:48 PM

11. The point is that

"Also, your comment assumes they took up arms, which isn't in evidence."

...those who have taken up arms still have to be dealt with. What should the process be for that?

The fact is that the one person targeted was a member of al Qaeda. There is a demand for public evidence and justification. That's an issue. Still, the point is how to deal with Americans who take up arms with terrorist, including defining a process to make the justification for targeted killings.

It's a fact that the Constitution affords the President to act accordingly, is not going to make the issue go away.

From the Center for Constitutional Rights (arguing against the current policy for targeted killings, but citing the exceptions) :

<...>

Under the Constitution and international law, individuals must be afforded due process and convicted for a capital crime before they may be executed by the state. In extremely narrow circumstances, judicial process is not required if an individual poses an imminent threat of death or serious physical harm to others, and lethal force is a last resort to address the threat. A targeted killing policy in which names are added to kill lists after a bureaucratic process and remain on the lists for months is clearly not limited to addressing imminent threats or using lethal force as a last resort, and goes far beyond what the law permits. By substituting its own bureaucratic process for the due process required by the Constitution and international law, the executive is assuming the role of judge, jury, and executioner.

<...>

The executive process for authorizing these killings also plainly violates the legal requirements for the use of lethal force by the state. Outside of armed conflict, where the Constitution and peace-time international law apply, the United States can only take an individual’s life, no less the life of a U.S. citizen, after trial and conviction. The only exception to the rule is where the individual poses a grave threat of such imminence that judicial process is infeasible and lethal force is the only option that could reasonably address the threat. That individuals are added to kill lists after a bureaucratic process and left on the lists for months at a time flies in the face of the requirement that killing must be a last resort to address an imminent threat that leaves no time for process or deliberation.

http://ccrjustice.org/learn-more/faqs/kill-lists


Senator Wyden:

As I and ten other senators told the President yesterday, if individual Americans choose to take up arms against the United States, there will clearly be some circumstances in which the President has the authority to use lethal force against those Americans, just as President Lincoln had the authority to use force against the Confederate Army during the Civil War. At the same time, it is vitally important for Congress and the American public to have a full understanding of how the executive branch interprets this authority, so that Congress and the public can decide whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards. Every American has the right to know when their government believes that it is allowed to kill them.


The Constitution does grant the President the authority to use lethal force against citizens who take up arms against the United States in armed conflict and in situations where the individual, as the CCR noted, "poses a grave threat of such imminence that judicial process is infeasible and lethal force is the only option."

The point is what that policy should look like.


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Response to ProSense (Reply #11)

Fri Feb 8, 2013, 04:44 PM

13. The point is this: the immediate solution is quick and simple - Obama should issue a superseding EO

The policy supported by the current EO was badly decided. Just cancel that part of it is most wrong-headed - naming US Citizens to the 'kill list". Keep the rest for now. We can then work out the side-issues in due course.

It's a lot simpler than you and some others are trying to make it.

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Response to leveymg (Reply #13)

Fri Feb 8, 2013, 04:54 PM

14. You are still asking that

The point is, the immediate solution is quick and simple: Obama should issue a superseding EO

The policy supported by the current EO was badly decided. Just cancel that part of it that names US Citizens in the 'kill list".

...Americans who take up arms be ignored. The debate is not about Americans in general.

You are creating the impression that Americans who take up arms against their country don't fall into the category "US Citizens." That such persons are considered the same as any enemy subject to lethal force is not up for debate. The debate is about the process of identifying them and bringing them to justice in those situations that require lethal force, and ensuring that lethal force is indeed the last resort.



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Response to ProSense (Reply #14)

Fri Feb 8, 2013, 05:22 PM

15. There were ways of dealing with such threats before drones and kill lists, you know.

Nobody has suggested they be "ignored," except you.

You are creating the impression that Americans who take up arms against their country don't fall into the category "US Citizens."
I really don't understand what you mean by that.

The debate is about the process of identifying them and bringing them to justice in those situations that require lethal force, and ensuring that lethal force is indeed the last resort.
You seem to ignore that this country has always dealt with that problem -- going right back to the Revolutionary War and its immediate aftermath -- but, previously it wasn't with drones and kill lists.

Why has it suddenly become so intractable a problem that we can't handle it now in the way we did previously to Obama's latest Executive Order? Why not simply revert to the previous EO, which was only a few years old? Why is such an easy, obvious answer so seemingly difficult for you to comprehend.

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Response to leveymg (Reply #15)

Fri Feb 8, 2013, 05:27 PM

16. What were

"There were ways of dealing with such threats before drones and kill lists, you know."

...the ways? How did we deal with these individuals:

"In extremely narrow circumstances, judicial process is not required if an individual poses an imminent threat of death or serious physical harm to others, and lethal force is a last resort to address the threat."

"The only exception to the rule is where the individual poses a grave threat of such imminence that judicial process is infeasible and lethal force is the only option that could reasonably address the threat."

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Response to ProSense (Original post)

Fri Feb 8, 2013, 02:57 PM

2. Drop the bomb, then the court will have five days to decide if it should be removed

Isn't that how FISA works?

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Response to ProSense (Original post)

Fri Feb 8, 2013, 03:00 PM

3. Great idea! Let's see how many international treaties we can violate today!

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Response to ProSense (Original post)

Fri Feb 8, 2013, 03:03 PM

4. There is little discussion because nearly all of the people who are against this sort of thing are D

Democrats and liberals, who seem to like Obama more than they like intellectual consistency.

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Response to ProSense (Original post)

Fri Feb 8, 2013, 03:15 PM

5. Let's have a court where Americans are prosecuted and sentenced for war crimes. n/t

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Response to winter is coming (Reply #5)

Fri Feb 8, 2013, 03:16 PM

6. Who? n/t

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Response to ProSense (Reply #6)

Fri Feb 8, 2013, 03:24 PM

8. Whoever imagines they're above the law. Failing to prosecute BushCo was a precedent

we'll be living with for decades to come. The short-term "smart thing" was to do nothing, to avoid antagonizing Republicans. It's a piss-poor long-term strategy, though, because it sends the message that people in power get a blank check, which makes it more likely that others will abuse their power and no one will try to do much of anything about it. Similarly, "too big to fail" = "too big to prosecute" is going to bite us in the butt.

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Response to ProSense (Original post)

Fri Feb 8, 2013, 03:27 PM

9. And, make the court open to public view and have the verdicts decided by a jury.

And, have the jury members witness any executions and be liable for any "collateral damage".

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Response to ProSense (Original post)

Fri Feb 8, 2013, 04:20 PM

12. Gee, Don't We Already Have a Court System Where US Citizens are Charged, Tried, Sentenced and ...

then the sentence is executed? One of the punishments that can be meted out is the death sentence.

I think we call that the Judicial branch of government don't we? So why do we need to go to the time and expense of setting up a new one. Why don't we just follow the Constitution and use the one we already have?

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