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Sat Feb 16, 2013, 12:12 PM

Jefferson and drones

Jefferson ordered attacks on pirate ships with US citizens among the crew, based on a Congressional authorization of force (he had requested but not received an explicit declaration of war). This included the famous razing of the USS Philadelphia at anchor (a ship at anchor is a current threat to no one).

He did not receive an explicit declaration of war because the pirates were trans-national non-state actors only ambivalently supported by the Barbary states (sound familiar?). This also led to charges that Jefferson was setting up a permanent US security apparatus in the form of the Navy and Marine Corps. This from a man who shipped the Constitutional Convention because he worried the government would have too many powers, and agonized over whether he could legally buy Louisiana from France.

I don't know where people get the idea that Americans outside of the US have received judicial review before being declared under arms against the US or being declared hostis humani generis (which is the relevant question for terrorism, anyways). Because I can't find an example of that happening -- the decision seems to have been left to the executive since very early, despite Congress's explicit authority over piracy.

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Arrow 46 replies Author Time Post
Reply Jefferson and drones (Original post)
Recursion Feb 2013 OP
whatchamacallit Feb 2013 #1
Recursion Feb 2013 #2
whatchamacallit Feb 2013 #6
struggle4progress Feb 2013 #22
whatchamacallit Feb 2013 #23
struggle4progress Feb 2013 #25
whatchamacallit Feb 2013 #26
struggle4progress Feb 2013 #27
whatchamacallit Feb 2013 #28
struggle4progress Feb 2013 #30
stevenleser Feb 2013 #32
struggle4progress Feb 2013 #33
stevenleser Feb 2013 #35
whatchamacallit Feb 2013 #36
stevenleser Feb 2013 #39
whatchamacallit Feb 2013 #41
stevenleser Feb 2013 #29
Puzzledtraveller Feb 2013 #24
EastKYLiberal Feb 2013 #7
whatchamacallit Feb 2013 #9
tblue Feb 2013 #3
hughee99 Feb 2013 #4
stevenleser Feb 2013 #34
hughee99 Feb 2013 #38
stevenleser Feb 2013 #40
hughee99 Feb 2013 #42
HereSince1628 Feb 2013 #5
Recursion Feb 2013 #8
HereSince1628 Feb 2013 #11
stevenleser Feb 2013 #31
Recursion Feb 2013 #44
stevenleser Feb 2013 #45
Recursion Feb 2013 #46
Tierra_y_Libertad Feb 2013 #10
Gorp Feb 2013 #12
Recursion Feb 2013 #14
Tierra_y_Libertad Feb 2013 #13
Recursion Feb 2013 #15
Tierra_y_Libertad Feb 2013 #16
Recursion Feb 2013 #17
Tierra_y_Libertad Feb 2013 #19
Recursion Feb 2013 #20
Tierra_y_Libertad Feb 2013 #21
geek tragedy Feb 2013 #18
msanthrope Feb 2013 #37
Are_grits_groceries Feb 2013 #43

Response to Recursion (Original post)

Sat Feb 16, 2013, 12:28 PM

1. Yes, let's make any argument we can to justify ditching our liberties

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Response to whatchamacallit (Reply #1)

Sat Feb 16, 2013, 12:36 PM

2. I'm pointing out that this is a debate as old as the Republic

And there are no simple answers. It's actually even worse than I simplified above: some Americans had joined the pirates for money and others were hit over the head and shanghaid by them.

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Response to Recursion (Reply #2)

Sat Feb 16, 2013, 12:44 PM

6. Well let me point out

that equating actions taken on men clearly engaged in criminal activity as pirates, with secret kill lists of Americans who might pose a potential threat, is a big stretch.

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Response to whatchamacallit (Reply #6)

Sat Feb 16, 2013, 08:02 PM

22. The Administration has not claimed an authority to assassinate arbitrary Americans "who might pose

a potential threat," nor is there any evidence that the Administration has assassinated or plans to assassinate arbitrary Americans "who might pose a potential threat"

... The United States did not claim the power to kill Mr. Awlaki because of his political views or because he was a mere member of a Qaeda affiliate against which Congress had authorized the use of force. It claimed the power to kill him, rather, because he was an operational leader of a Qaeda affiliate that had been involved in terrorist plots on American soil and because he was hiding in a country that lacked the capacity to arrest him and bring him to justice.

Nor does the killing of Mr. Awlaki mean, as Glenn Greenwald charged in Salon, that “due-process-free assassination of U.S. citizens is now reality.” An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbor. Moreover, the United States knew there were many American citizens in the German Army during World War II, but it did not alter its bombing practices as a result ...


A Just Act of War (Goldsmith in NYT 30 Sept 2011)


Notions of due process can only apply when there is a prospect of detaining a suspect and bringing the suspect before a regularly constituted court: so, for example, US courts have determined that the writ of habeas corpus may be considered inoperative in any region where rebellion or insurrection prevents normal operation of ordinary judicial process, even though the right to the writ is unambiguously guaranteed in the Constitution

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Response to struggle4progress (Reply #22)

Sat Feb 16, 2013, 08:37 PM

23. They need to rewrite it

Until then it's garbage (like your attempted defense)

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Response to whatchamacallit (Reply #23)

Sat Feb 16, 2013, 08:51 PM

25. Who needs to rewrite what?

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Response to struggle4progress (Reply #25)

Sat Feb 16, 2013, 09:06 PM

26. The legal basis for that provision of the NDAA

The white paper is criminal.

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Response to whatchamacallit (Reply #26)

Sat Feb 16, 2013, 10:00 PM

27. There seems to have been a political consensus in the US for about a dozen years

that certain international terrorist conspiracies are properly regarded as issues requiring military response

This political consensus was constructed after the 9/11 tragedy: the prior administration promoted that view, with wide support from rightwing conservatives, because it was useful for their war-powers theory of the executive

The fact, that this political consensus remains, is illustrated by the refusal of Congress, during Mr Obama's first term, to allow persons detained at Guatanamo to be tried under US criminal law in standard civilian courts

Such laws, as actually exist, governing the conduct of warfare, differ somewhat from the laws governing criminal prosecutions. The US courts will consider that Congress may authorize the use of military force, as a lesser-included-power under the power (granted to Congress by the Constitution) to declare war

The Administration, so far as it wishes to undertake any action at all, is constrained by political forces to act within the constraints of whatever political consensus dominates. In fact, Congress has not only authorized the use of military force against certain terrorist groups, it has also (as noted above) indicated clearly that it will feel free to intervene to prevent the executive from trying group members under US criminal law in standard civilian courts

You object to a provision of the NDAA, which provides funding for military operations, on the grounds that you regard that provision as "criminal" -- namely, the provision authorizing direct military attacks on certain persons abroad. You regard these provisions as "criminal" because you believe that persons designated as targets ought to have the rights they would enjoy in an ordinary criminal prosecution. Your view simply will not prevail, until the existing political consensus is replaced by a consensus that regards international terrorist conspiracies as criminal organizations requiring a law enforcement response, rather than as nonstate paramilitary groups requiring a military response.


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Response to struggle4progress (Reply #27)

Sat Feb 16, 2013, 10:05 PM

28. Fuck political consensus

Slavery was once consensus. My compass is not set that way.

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Response to whatchamacallit (Reply #28)

Sat Feb 16, 2013, 10:14 PM

30. If you merely intend to complain without effect, why should anyone listen? But if you want an effect

then it is necessary to analyze the actual situation carefully, with the object of obtaining a realistic view of circumstances, so that you know how to plan your approach and have some prospects of success

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Response to struggle4progress (Reply #30)

Sat Feb 16, 2013, 10:18 PM

32. If you get that person to actually evaluate your points logically, you should get appointed the

chief negotiator in the US-Iran and Israeli-Palestinian negotiations immediately, because you can perform negotiation miracles.

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Response to stevenleser (Reply #32)

Sat Feb 16, 2013, 10:23 PM

33. Unfortunately, to convince people, it is usually necessary to get them to reach

the conclusions themselves, so that they can believe the conclusions are their own ideas, in which case they will be much more receptive to those ideas: that requires too much patience for me here

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Response to struggle4progress (Reply #33)

Sat Feb 16, 2013, 10:29 PM

35. This is typical of what I have seen of the anti-drone crowd on DU. Non-rational when it comes to

listening to alternate arguments no matter how well and how logically presented.

That is a pretty good indication that their arguments do not stand up to scrutiny. If your arguments are solid, you dont need to resort to the kind of debate tactics that person used against you.

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Response to stevenleser (Reply #35)

Sat Feb 16, 2013, 10:51 PM

36. Bullshit

I've heard the arguments apologias and they fall flat. I know you prefer to pretend it's just some "crazies" on DU, but this power the president reserves is setting off alarms among all kinds of politicians and scholars. BTW we've been fighting wars since this country was founded, including two world wars, and we've never had to resort to this sort of thing to keep us safe before. You need a rethink, stevenleser.

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Response to whatchamacallit (Reply #36)

Sat Feb 16, 2013, 11:41 PM

39. You clearly haven't heard anything

You have been presented several rational arguments in this thread and you don't listen. Im not saying you have to agree, but you dont even listen.

When people act like you have acted here, it's because of a fear that if they do listen and engage, their arguments will not stand up.

You can say "bullshit" and "apologia" and every other rationalization and ad-hominem remark you can come up with to justify how you have gone about this discussion, the proof is in your behavior.

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Response to stevenleser (Reply #39)

Sun Feb 17, 2013, 12:15 AM

41. Uh huh

Just claiming an argument is rational doesn't make it so. The historical comparison proffered by the OP is a stretch at best. No one with a clue would regard it as precedent. Your claim that he's won the argument is pure desire on your part. The 4 recs tell a different story.

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Response to struggle4progress (Reply #27)

Sat Feb 16, 2013, 10:12 PM

29. You win the debate as any reasoned person can see.

Good try to get someone to see logical points who has no interest in giving your side of the issue anything remotely resembling an honest evaluation.

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Response to whatchamacallit (Reply #6)

Sat Feb 16, 2013, 08:38 PM

24. whatchamacallit has it

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Response to whatchamacallit (Reply #1)

Sat Feb 16, 2013, 12:46 PM

7. Whose liberties? My liberties are just fine.

 

And have nothing to do with the flies circling our behind a world away.

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Response to EastKYLiberal (Reply #7)

Sat Feb 16, 2013, 12:51 PM

9. Oh yay

another new hawk with liberal in their name! How refreshing!

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Response to Recursion (Original post)

Sat Feb 16, 2013, 12:38 PM

3. What pirate ship was Alawi on?

Did Jefferson have a pirate's innocent child killed and did innocent people die from being in the vicinity of the counterattack?

Just playing devil's advocate & trying to sort this out.

If Alawi was in the literal act of attacking the US, then he probably was a threat that had to be dealt with--if there was no other way to stop him from carrying out acts of terrorism against the US. But was he?

If an American called himself a pirate or associated with pirates but wasn't on a pirate ship, would President Jefferson have him killed--and does that make it right?


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Response to Recursion (Original post)

Sat Feb 16, 2013, 12:40 PM

4. I'm sure Jefferson would have been in favor of drones.

Giving the country the ability to take out a target while not risking any American lives, for a person who has to order it, what's not to like? I think Jefferson would have been appalled at the idea that president could issue a hit on anyone... sorry, and "extrajudicial killing", including American citizens, anywhere in the world with almost no oversight and no accountability.

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Response to hughee99 (Reply #4)

Sat Feb 16, 2013, 10:27 PM

34. Did you skip the part of the OP that said that Jefferson did exactly what you suggest would appall

him?

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Response to stevenleser (Reply #34)

Sat Feb 16, 2013, 11:11 PM

38. You don't see a difference between allowing attacks on pirate ships

(given that there was no "real time" communication in those days, he was giving the authority to his ship captains), and the blanket authority to pick anyone, anywhere, anytime with no oversight?

When president Obama gave the order to take out the Somali pirates, no one said shit about it. That's because there's a big difference.

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Response to hughee99 (Reply #38)

Sat Feb 16, 2013, 11:49 PM

40. No, I dont see the difference. And that is based on the anti-drone arguments as presented

We who are at least patient with the administrations use of drones are being told by many in the anti-drone crowd that it is all about bill of rights and Constitutional protections that are inviolable. That it cannot be that a state of war exists between the US and Al Qaeda and all of that.

You are asserting no exceptions on Constitutional protection for American citizens wherever they are unless war is declared but then are making an exception for Jefferson.

What you have done is convince me that a lot of the anti-drone argument is about an obsessive hate of Obama.

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Response to stevenleser (Reply #40)

Sun Feb 17, 2013, 02:18 AM

42. Obama hate. That must be it.

People aren't uncomfortable with the president having the authority to unilaterally to kill essentially anyone at any time, it's just a blind hatred for the man himself.

If my argument "convinced" you of this, then you are making a leap not based in any sort of logic to a conclusion (I would guess) you've already decided on. Obama critics can't have objections about the policy, it must be their personal hatred for the man. Oddly enough, though, Obama seems to be getting more support from the repukes on this (those who we've been saying for years have an obsessive hatred of the President), than he has been from his own party, so I'm not sure that theory is supported by reality.

In 1802, in response to Jefferson's request for authority to deal with the pirates, Congress passed "An act for the Protection of Commerce and seamen of the United States against the Tripolitan cruisers", authorizing the President to "…employ such of the armed vessels of the United States as may be judged requisite… for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the Mediterranean and adjoining seas." "The statute authorized American ships to seize vessels belonging to the Bey of Tripoli, with the captured property distributed to those who brought the vessels into port."

While Jefferson had the authority to act against the ships (and by extension, those manning them), it's not the same as being able to name a specific individual and issue an order for an extrajudicial killing on them with no oversight, no matter where they are or what they're doing.

My argument is not based specifically on one being an American citizen and has essentially nothing to do with the drones. It also has nothing to do with Obama. Frankly, I'm less uncomfortable with him doing it than some other presidents, but it's an authority ripe for abuse that, IMHO, no president should have.

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Response to Recursion (Original post)

Sat Feb 16, 2013, 12:40 PM

5. Jefferson? Ah, yes, in praise of 225 years unhampered by progress.

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Response to HereSince1628 (Reply #5)

Sat Feb 16, 2013, 12:50 PM

8. i wasn't trying to say it's easy, just that it's precedented

Actually the First Barbary War has a troubling amount in common with GWOT.

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Response to Recursion (Reply #8)

Sat Feb 16, 2013, 01:14 PM

11. Yes, but, precedent doesn't actually validate throwing away 200 yrs of moral progress...

it just gives it a rationale.

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Response to HereSince1628 (Reply #11)

Sat Feb 16, 2013, 10:17 PM

31. Like what? What moral progress or progress of any kind has been made in dealing with that kind of a

situation?

What is your so amazing and wonderful solution to the Al Qaeda problem?

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Response to stevenleser (Reply #31)

Sun Feb 17, 2013, 07:39 AM

44. We no longer summarily hang pirates from yardarms

That's probably progress

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Response to Recursion (Reply #44)

Mon Feb 18, 2013, 02:24 PM

45. Now we fire bullets, shells and missiles at their boats from warships.

We capture them sometimes too but...



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Response to stevenleser (Reply #45)

Mon Feb 18, 2013, 03:19 PM

46. We always did that

The capturing them is the new thing

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Response to Recursion (Original post)

Sat Feb 16, 2013, 01:03 PM

10. "Because I do it with one small ship, I am called a terrorist. You do it with a whole fleet...

" Because I do it with one small ship, I am called a terrorist. You do it with a whole fleet and are called an emperor." A pirate, from St. Augustine's "City of God"

"What difference does it make to the dead, the orphans and the homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty or democracy."
- Gandhi

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Response to Recursion (Original post)

Sat Feb 16, 2013, 03:50 PM

12. I've heard that called "Jefferson's self-imposed War Powers Act" in the past.

 

To some extent it is true. The current War Powers Act just seems like a direct snub of the Constitution granting Congress the power to declare war. Besides, I thought Jefferson stood with Madison on the danger of maintaining a standing army. I think the Navy was a given, but the Marine Corps could easily be seen as a standing army. I could be wrong, but it has always sounded like a "flip-flop" on the issue to me.

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Response to Gorp (Reply #12)

Sat Feb 16, 2013, 06:45 PM

14. There has been a distinction, historically

Last edited Sun Feb 17, 2013, 07:38 AM - Edit history (1)

Land the Army, that's war; land Marines, you're "restoring order". Even the Dey of Tripoli seemed to recognize that distinction by only requesting an indemnity.

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Response to Recursion (Original post)

Sat Feb 16, 2013, 03:56 PM

13. "America does not go abroad in search of monsters to destroy." John Quincy Adams


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Response to Tierra_y_Libertad (Reply #13)

Sat Feb 16, 2013, 06:46 PM

15. On our better days

But military operations outside of the US have always been considered competent to make findings of fact without prior judicial input.

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Response to Recursion (Reply #15)

Sat Feb 16, 2013, 07:08 PM

16. Obviously, the military and CIA consider themselves above the law.

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Response to Tierra_y_Libertad (Reply #16)

Sat Feb 16, 2013, 07:10 PM

17. In seven years in the Marine Corps, I never met anyone

who thought he was above the law. Your mileage may vary.

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Response to Recursion (Reply #17)

Sat Feb 16, 2013, 07:15 PM

19. You never met any officers?

I spent 4 years in the crotch and met a whole slew of lawbreakers, rule breakers, and downright nincompoops who believed themselves to be above anybody once they got the stripes or the tinware to pin on their collars.

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Response to Tierra_y_Libertad (Reply #19)

Sat Feb 16, 2013, 07:17 PM

20. I met plenty of officers

They were more concerned with staying in the bounds of law even than the men were.

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Response to Recursion (Reply #20)

Sat Feb 16, 2013, 07:21 PM

21. They were more concerned with kissing ass than the peasants were.

And, would screw the troops with gusto to earn the next bar, oak leaf, or eagle.

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Response to Recursion (Original post)

Sat Feb 16, 2013, 07:15 PM

18. The best that can be said in response is that the drone targets are very rarely if ever

engaged in active combat--they are not shooting at US servicepeople.

Certainly, if Al Awlaki had been shot between the eyes by a sniper while in a firefight, there would be zero room to argue his killing was legal.

The way in which terrorists operate and carry out attacks does not lend itself to that paradigm, hence the legal fuzziness.

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Response to Recursion (Original post)

Sat Feb 16, 2013, 10:53 PM

37. Excellent OP. nt

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Response to Recursion (Original post)

Sun Feb 17, 2013, 02:25 AM

43. Jefferson acted to an open and ongoing explicit threat in a certain area.

The Barbary Pirates were disrupting trade in the Mediterranean. There was a specific area of danger by specific group. When they engaged the US Navy, they were not some shadowy group that was hard to pinpoint.

While Jefferson's actions were not under review by other branches of government, what was being done was out in the open with no questions about what was happening to who and where for what. He had no cabal in the White House deciding who would be killed given info by the CIA, that paragon of certainty and truth.

In addition, he had no groups of trained military personnel flitting about the world engaged in whatever the hell he deemed necessary.

The US was in its infancy and the challenges faced were as formidable as they are now. Jefferson's actions were not ideal in an 'advise and consent' construct, but they were extremely limited compared to the liberties taken today by the Executive branch today.

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