A NON-RHETORICAL QUESTION
pohlman at dickinson.edu
Wed Mar 7 14:29:18 PST 2012
One concern I have about AG Holder's criteria of targeting US citizens who are involved with al Qaeda is the relaxed character of what constitutes an "imminent" threat. He says, "the Constitution does not require the President to delay action until some theoretical end-stage planning — when the precise time, place, and manner of an attack become clear." In terms of the feasibility of capture, the AG says that this "fact-specific, and potentially time-sensitive, question" may depend on, "among other things [what are these other things?], whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel." But if an attack can be "imminent" without its precise "time place and manner" being "clear," how does one asses whether a capture that does not endanger civilians or US personnel is possible prior to an attack?" Wouldn't any type of capture attempt at least risk the lives of the soldiers sent on the capture mission?
Let me put it another way: assume that an American citizen who allegedly has an operational role in al Qaeda can be killed by a drone attack at some point in time. At that point in time, US officials won't know if that citizen can be captured before an attack that is not precisely defined in terms of time, place or manner. Accordingly, the fact that a US citizen has become vulnerable to a drone attack might be the decisive factor in determining the lawfulness of the drone attack. "Kill him now, while we got the chance, because we don't know if we will ever get a chance to safely capture him before there is another attack."
The criteria set forth by Holder seem complex, but is it likely that in practice the criteria give a green light to kill any US citizen who is thought to be a senior operational leader in al Qaeda or associated forces whenever he becomes vulnerable to a drone attack because at that point we won't know if we could capture him without risk to civilians or US personnel? Can such a position be consistent with Due Process? I hope and trust that the standard of evidence used to identify US citizens as "senior operational leaders" who are "actively engaged in planning to kill Americans" is a heightened one, but Holder didn't really talk much about that, except to say that the decision "is among the gravest that government leaders can face."
From: Lou Fisher <lfisher11 at verizon.net<mailto:lfisher11 at verizon.net>>
Date: Tue, 6 Mar 2012 20:21:13 -0600
To: <guayiya at bellsouth.net<mailto:guayiya at bellsouth.net>>, <rosentha at chapman.edu<mailto:rosentha at chapman.edu>>, <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>>
Cc: <SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu>>, <conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>>
Subject: Re: Re: Re: Re: A NON-RHETORICAL QUESTION
My response was like Daniel's. Attorney General Holder says the administration would be subject to regular checks and balances, including "robust" oversight by Congress. That brought no comfort to me. He promises, essentially, one-branch government.
On 03/06/12, Daniel Hoffman<guayiya at bellsouth.net<mailto:guayiya at bellsouth.net>> wrote:
Holder's statement that due process is not necessarily judicial process produced a bit of a crisis in my mind. The bottom line seems to be that your rights are whatever the president, in his wisdom, chooses to give us. Good news though, it's only if you're on a secret enemies list.
--- On Tue, 3/6/12, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:
From: Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>>
Subject: Re: Re: Re: A NON-RHETORICAL QUESTION
To: "Rosenthal, Lawrence" <rosentha at chapman.edu<mailto:rosentha at chapman.edu>>
Cc: "Sanford Levinson" <SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu>>, "Lou Fisher" <lfisher11 at verizon.net<mailto:lfisher11 at verizon.net>>, "rdfrdman at umich.edu<mailto:rdfrdman at umich.edu>" <rdfrdman at umich.edu<mailto:rdfrdman at umich.edu>>, "guayiya at bellsouth.net<mailto:guayiya at bellsouth.net>" <guayiya at bellsouth.net<mailto:guayiya at bellsouth.net>>, "Paul.Finkelman at albanylaw.edu<mailto:Paul.Finkelman at albanylaw.edu>" <Paul.Finkelman at albanylaw.edu<mailto:Paul.Finkelman at albanylaw.edu>>, "conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>" <conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>>
Date: Tuesday, March 6, 2012, 5:28 PM
The President today -- http://thecaucus.blogs.nytimes.com/2012/03/06/obama-challenges-republicans-on-iran/?hp -- emphasizing that (i) the predicate for any possible action is still far off (" this notion that somehow we have a choice to make in the next week or two weeks or month or two months is not borne out by the facts,”), and that (ii) if we're going to "go to war" with Iran, the case should first be made to the American people.
As I was saying, let's slow down before bemoaning any constitutional crises . . .
On Tue, Mar 6, 2012 at 4:04 AM, Marty Lederman <lederman.marty at gmail.com<http://email@example.com>> wrote:
Just to be clear, I did not suggest that "the President possesses top secret evidence indicating that Iran presents a danger to the United States." Indeed, I thought that what the President has said instead is that our intel shows Iran is not yet capable of building a nuclear weapon -- in which case, we're a long way from a self-defense justification for use of force.
And, contrary to Larry Rosenthal's assumption, I have seen no indication that "the President's lawyers have opined that he may use force against Iran . . . without need of congressional authorization." Indeed, I'd be shocked if they've been asked to opine so far in advance of what is now merely a hypothetical possibility, based upon facts that have yet to present themselves. The OLC Libya opinion does not resolve the question, and does not, in particular, discuss the self-defense predicate that presumably would be at issue here. Nor does it discuss whether an attack on Iran would result in "war in the constitutional sense," such that congressional authorization would be needed.
I think we're getting way out ahead of ourselves here . . .
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