Wednesday, March 5, 2014
With the drone strike on accused terrorist and New Mexico-born Anwar al-Awlaki in Yemen, President Obama has tested the limits of the executive branch’s powers. Does the president have constitutional authority under the due process clause to kill U.S. citizens abroad, or is it a violation of this clause to unilaterally decide to target and kill Americans?
Presented in partnership with the National Constitution Center.
Professor of Law, Harvard Law School
Professor of Law, Ohio Northern University School of Law
Professor of Law, Harvard Law School
Director of the ACLU National Security Project
Author & Correspondent for ABC News
Professor of Law, Harvard Law School
Alan M. Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School, has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights.” He is a graduate of Brooklyn College and Yale Law School and joined the Harvard Law Faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg. He has published more than 1,000 articles in magazines, newspapers, journals and blogs such as The New York Times Magazine, The Washington Post, The Wall Street Journal, The Harvard Law Review, The Yale Law Journal and Huffington Post. Dershowitz is the author of numerous bestselling books, and his autobiography, Taking the Stand: My Life in the Law, was recently published by Crown.
Professor of Law, Ohio Northern University School of Law
Michael Lewis has written extensively on various aspects of the laws of war and the conflict between the U.S. and al Qaeda and has been cited by the Seventh, Ninth and Eleventh Circuit Courts of Appeals. He has testified before Congress on the legality of drone strikes in Pakistan and Yemen and on the civil liberties tradeoffs associated with trying some al Qaeda members or terrorist suspects before military commissions. Prior to earning his J.D. from Harvard Law School, cum laude, in 1998, he served in the U.S. Navy from 1987 to 1995 where he flew F-14’s from the aircraft carrier USS Independence. He graduated from the Navy’s Top Gun school in 1992.
Professor of Law, Harvard Law School
Noah Feldman is the Bemis Professor of Law at Harvard University as well as a senior fellow of the Society of Fellows. A contributing writer for The New York Times Magazine and Bloomberg View, he has authored five books and, most recently, co-authored Constitutional Law, Eighteenth Edition (2013). He served as senior constitutional advisor to the Coalition Provisional Authority in Iraq, and advised members of the Iraqi Governing Council on the drafting of the Transitional Administrative Law or interim constitution. Previously, he served as a law clerk to Justice David H. Souter of the U.S. Supreme Court (1998-1999). He received his A.B. summa cum laude from Harvard University in 1992, finishing first in his class. Selected as a Rhodes Scholar, he earned a D. Phil. in Islamic Thought from Oxford University and a J.D. from Yale Law School, where he served as the book reviews editor of the Yale Law Journal.
Director of the ACLU National Security Project
Hina Shamsi is director of the American Civil Liberties Union National Security Project, which is dedicated to ensuring that U.S. counterterrorism policies and practices do not violate the Constitution or the United States’ obligations under international law. She is litigating the ACLU’s lawsuit challenging the constitutionality of the U.S. government’s killing of three U.S. citizens in Yemen in 2011. She has litigated numerous cases relating to post-9/11 torture, unlawful detention, discrimination against racial and religious minorities, and the freedoms of speech and association. Shamsi teaches a Columbia Law School course on international human rights, and has monitored and reported on the military commissions at Guantánamo Bay. She previously directed Human Rights First's Law & Security Program, and also served as senior advisor to the U.N. Special Rapporteur on Extrajudicial Executions.
49% voted the same way in BOTH pre- and post-debate votes (21% voted FOR twice, 23% voted AGAINST twice, 5% voted UNDECIDED twice). 51% changed their minds (9% voted FOR then changed to AGAINST, 0% voted FOR then changed to UNDECIDED, 20% voted AGAINST then changed to FOR, 2% voted AGAINST then changed to UNDECIDED, 14% voted UNDECIDED then changed to FOR, 7% voted UNDECIDED then changed to AGAINST) | Breakdown Graphic
This law stands for everything we are against. Is there any states in our union that allow the death penalty? Our country power has got some people on power trips. Who does he think he is? King Henry the VIII! Obama along with Bush in my eves are Murderers! People to fear. Making our government an entity to fear. This set a whole different feeling about life in America. Not one to wish on our children.
The question confuses the president's power during times of War, a conflict between established nations or countries, and a large group(s) individuals who are technically unaffiliated with a nation or country. These group(s) profess an ideology to justify the commission of crimes against humanity, specifically against the U.S., while monetary profiting off the terror inflicted by these unaffiliated groups. If a U.S. Citizen decides to join these group(s), despite all warnings to the contrary issued by the U.S. Government, then the group(s) punishment for these crimes past and present will also be incurred by the U.S. Citizen. If that individual commits the crime against the U.S. Government or U.S. Citizens outside the country that's treason. This person or persons in my opinion should be considered a “lone wolf” too dangerous to be allowed to return to this country.
Tenn. v. Garner is a poor comparison because that case dealt with escape from arrest by a LEO. Arrest, is by definition, an element of due process.
please I was at that presidential speech when Obama said he was going to make it constitional to kill American with a drone are shotgun if they participate in civil unrest
are not submit to their plans
The white house and Alan say drones can be used to kill citizens during war time. Further, no proof has to be presented regarding your innocence or guilt. This is their position as presented just now.
If no proof has to be presented that I am guilty, then, essentially, I do not have to be guilty. I could be innocent.
I could be innocent, but standing in a war zone, and my death from a presidential drone, is justified.
As proof, just watch how Alan dismissed the death of the 16 year old kid, as an accident, and showed no remorse. No one from the white house had to pay any price for killing the 16 yr old kid.
So, IT IS a fact, that today, all I have to do is be in a country the white house claims to be at war with, or conducting war operations, and they can kill me. AND NOTHING WILL HAPPEN, regardless of my innocence.
THIS IS A STUNNING POSITION to take!!! But even more so when you CONSIDER THIS STORY:
Basically, it says we are conducting war operations in 74 nations.
So, are Alan, and the White house are saying, there are 74 countries that, if I travel to, I can be killed by a presidential drone? No proof has to be presented. NONE! All it requires is, a presidential thumbs up. (followed by a claim of eminent threat, BUT NO PROOF of it.)
Alan claims this is constitutional because there may be an "eminent threat of my escape" to a country the white house is not currently engaged in war with.
Because of this eminent threat "of my escape to a land where there is no war", the requirements of presenting evidence of my guilt are not required. It would take too long, and allow my escape. He uses a cop chasing a criminal down an alley as an analogy. basically saying, the president has the right to fire his weapon at me, if he knows I am dangerous, and might escape land with no active war. (because, being in a land with no war, makes it unconstitutional to attack me, he must act urgently, and bypass any over sight.)
Oddly, at 1hr 13 min into the debate, Alan explains how there are 6 levels of review. So much thought goes into considering my guilt, before a drone is used against me. 6 levels of review are conducted. But, somehow, there is no time for a court to consider the evidence? They cant even invent a rubber stamp court like FISA? But, they got these 6 other secret levels of review?
Lastly, if I were to make my escape, to a country the white house is not at war with, why not try and extradite me?
Is it because the white house has problems with extradition? Did they piss off so much of the world, by starting so many wars? And those they have not started war with, they spied on. Are they concerned that not many nations left are willing to honor an extradition request?
I guess it is easier for the white house to spend millions of our tax dollars, buying and arming drones, to kill us in one of the 74 nations they are conducting wars in.
I am so disgusted at how little evidence and actual facts Alan Dershowitz actually brings to this debate. He imagines examples which only serve to support his own ideas plus a bit of theatrics when in all practicality he is doing nothing to educate or bring understanding to support his view. A Harvard professor no less. I am very unimpressed.
Tennesse v Garner is a terrible decision and, as a prosecutor in New Zealand, I can tell you that this decision would NEVER stand in an appellate court here (or, as I understand the law in the UK and Australia, there). It is unfathomable that a country that apparently prioritizes personal liberty can be so cavalier with the ultimate liberty, the right to life. Tennesse v Garner allows the Police officer to effectively be judge, jury and executioner. It is incredible that a Police officer can kill someone based on a "reasonable belief" that they are a fleeing felon, yet for the law to deprive someone of their life or liberty, it must be satisfied of their guilt "beyond reasonable doubt".
A just society is a balancing act. We must accept that allowing everyone true liberty has the potential to provide opportunities for people to abuse that liberty. In the immortal words of Sir William Blackstone "It is better that ten guilty persons escape than that one innocent suffer". This is what it means to live in a free and just society. Both the ratio of Tennesse v Garner and the acceptance of targeted killings violates this principle on a number of levels (particularly with drone strikes, where "collateral damage" is so readily accepted).
There were two points I thought had bearing that were not brought up in the debate:
1. President Lincoln ordered the killing of thousands of US citizens. Was that unconstitutional? Note that Lincoln never recognized the Confederacy; therefor in his eyes Southerners remained US citizens.
2. I recall reading the fine print in my passport one (slow) day, and noticing a warning to the effect that if I joined the military of a foreign power I lost my citizenship. By this principal, anyone who joins Al Qaeda is no longer a US citizen, rendering the debate point moot. Comments?
I would ask if indeed these were US citizens?
The ultimate Law governing citizenship is the XIVth Amendment to the Constitution, specifically:
Sec 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.
Is a person born or naturalized in the United states, but not subject to the jurisdiction thereof, a citizen of the United States?
Clearly we will not expect persons to lose their nationality if they step over the border into Canada; and the United States itself extends its jurisdiction to impose income taxes on expatriates, thereby confirming the continuity of citizenship beyond America's borders.
I submit that one who might otherwise have claim to US citizenship but is outside US territory and specifically rejects US jurisdiction, is not necessarily a citizen of the United States and does not constitutionally enjoy an immediate right to due process.
To say that the president has the power to kill U.S. citizens abroad just because they themselves suspect the person to harbor ill intentions is ridiculous. This can easily be used by subsequent presidents to expand their own power without having any sort of transparency. How can you give a single individual the right to pull the trigger and end someones life without even having to rely on a court or any sort of system?
I listened to this and I was in no way swayed to be against the motion. To be honest the use of Anwar Al-Awalaki as your poster boy for this issue is just stupid. American citizen or not he was affiliated with the enemy. His citizenship should have become null and void at that point. He was a known supporter and facilitator and the Yemeni government gave him a trial in absentia in November 2010, for plotting to kill foreigners and being a member of al-Qaeda. Anwar Al-Awalaki was a known terrorist and he was an enemy of the United States and honestly the west and I could even go as far to argue Islam. This was not some dude from Ohio that was pissed off at the US and talking shit...and then was taken out by a Hellfire. The argument about the "Battlefield" was also just pointless. It is amorphous and not well defined for a reason this current battlefield is where ever AQ can attack US citizens and the notion that Drone strike agreements equates to the ability to "Arrest" is the same country is asinine and shows how little Noah Feldman understands reality from acadamia and is just too smart for his own good. I have seen the part of the world he talks about with my own eyes and the reality on the ground is FAR different than the view Noah Feldman and Hina Shamsi have of the subject and region through their rose colored glasses.
I think we've exhausted the capabilities of this means of political analysis. You should have mentioned that Alan Dershowitz is a vociferous defender of the Jewish state in Palestine, a state whose security policy even before it was a state was preventive. The whole idea of the Jewish state in Palestine is to forestall harm to Jews. Such a means of prevention might be said to be the gravamen of the present debate, and such is the general concept under which "imminent", "operative", and "war" are significant terms in that debate. For that matter, "terrorist" illustrates the proper terms of this debate, all the more significant for not being examined in the announced and indeed actual terms: how can you prevent people from being afraid: what does "war on terror" mean?
It is time for your organization to literally move to the next level. Aquinas defined four levels of law: custom at the bottom, then civil law, then natural law, then divine law. Civil law becomes impossible if natural law is sufficiently disregarded, such as in its requirement that reason, and thus language, work by allowing meetings of minds rather than by turning words into means of division by the use of shibboleths such as "terrorist". Civil law likewise is subject to degradation from below, from custom: as in the choice of Philadelphians to attend this debate: who showed up with what expectations?
I will suggest on my own authority, exercising whatever skills of political entrepreneurship I possess, that the next topic for debate here must be, "The Jewish state in Palestine has made Jews and Jewish culture more secure." Perhaps it is theoretically impossible to debate the truth of a fact. But this is a statement of fact, couched in language, the terms of which are subject to interpretation. It is the momentary interpretation of language that we are concerned with in the practice of politics.
If divine law is one principle, which is that God is not stupid, then the rest of law might consist of a counterpart, that people are not stupid. Human folly is not a matter of intelligence, but of judgment. If this is not what we mean by freedom and liberty, we mean nothing by them.
So now that we've worn out this instrument, let's make a new one. Perhaps my proposed debate topic would be the last conducted by the present organization, and it would lead to a new organization of new people and new principles, ready to stand a little closer to divine law.
Where is the audience from? Who are they? Look at the discrepancy between online voting result and live voting result. Are they really okay with the president who has authority to kill its citizens?
While "imminent" does mean "about to happen" that is still an extremely ambiguous term. Considering that something is "about to happen" depends just as much on the event in question as it does on the amount of time before it does. For example, if I were to say that the president travel to China in a month, would say that trip is imminent? Probably not. But what if I were to say that there a meteor scheduled to hit Earth and cause the extinction of mankind one year from now. What that be imminent? Some may say no, but there would a lot of people who say yes. Essentially "imminent" is very ambiguous and subjective and it is very difficult the make the argument that a person does not pose an "imminent" risk when you can't really define what "imminent" mean other than "about to happen".
The question is put wrongly, and as with too many other i2 debates, it turns into a debate over legal semantics. The motion should be "SHOULD the president have the authority to kill HUMANS ANYWHERE that pose an emminent threat to Americans. So the debate meanders into legalities that were crafted by human beings many years ago under different circumstance. This is a moral debate, not a legal debate. Our collective moral compass should drive both written legislation and policy, not the other way around.
I just wanted to say that WAR can only be between two countries. A country cannot declare war on a single person, or a group of persons not attached to a state.
The 16 yr old wasn't on a battlefield. If you are targeting someone, then that should be the only death. Period.. and you should answer for your target in some judicial system set up to address evidence to ensure amount of evidence was sufficient. Suspicion that my political adversary was involved with alqaeda... is not evidence enough.
One final thing: the way the motion was phrased created an advantage for the side in favor (or created an unfair burden on the side arguing against). Of course, the President has constitutional power to target and kill U.S. citizens abroad. As one audience member hinted, the question is whether or not he or she has the absolute authority do that (i.e., without EVER having to go through judicial review before the fact).
Also regarding Dr. Dershowitz' "flying felons" analogy--also bogus, but just a little less.
The fact is the flying felon literally just committed a crime involving violence or weapons which makes it more likely that he will use such violence or weapons in the near future. This does not apply (or at least not as strongly) to felons in hiding, which might be a better analogy to terrorist suspects having "sanctuary" in Pakistan or anywhere else.
Also: there IS a public process of review after-the-fact to determine whether the killing of the felon was unjustified (i.e., whether the imminence really existed), and an opportunity for judicial reparation and policy reform exists.
Pr. Dershowitz' analogy (near 00:54) between Americans targeted abroad and hostage-takers here in the States was incredibly bogus. Too bad Pr. Feldman was taken aback when Dershowitz put him on the spot with that little piece of sophism...
It's quite simple to debunk really. Dershowitz says that "imminence" applies to terrorist suspects potentially planning an attack in some unknown future against the US from overseas in the same way that it applies to clearly-identified hostage-takers promising not to kill their hostages within a defined period if they are given a chance to negotiate.
There are so many holes in this analogy, but I'll mention only three.
1. Imminence is a not a strictly-temporal construct but a spatiotemporal constructs. Sounds likerelativity but it's really basic intutive physics. The basic point is this: a hostage-taker who is closer to his target has an opportunity to strike it immediately, even assuming that he plans not to do so unless... In contrast, terrorist who is thousands of miles away has no opportunity to strike immediately. Hence, imminence applies to the first case in a way it does not to the second. Period!
2. There is much less doubt about the "guilt" of the hostage taker because he is probably right there for the cameras to see live. In contrast, there is very little transparency about the identity of targets overseas.
"The White House now says that it can order the killing of an American it suspects may some day present a threat even without evidence of an actual plot."
Human beings are not dice. You don't get equal likelihood of events over time. If someone performs an act with regular frequency, whether it's having a cup of coffee at lunch or trying to blow up civilian population centers, you can safely assume the likelihood that they will perform that act in the future is higher than someone who does not.
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