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?
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
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.
No US President has the lawful powers to commit First Degree Murder in or out of the USA.
US Constitution, Article. II, Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Those are the ONLY duties that all US Presidents can do lawfully. They may NOT add to those duties; nor can the legislative or judicial branches add to their assigned duties or assign more duties to another branch.
There's NO such thing as “emergency powers” that anyone serving or working within either of the state or federal governments in the USA that they can “evoke”, not lawfully. Those within the federal or state governments can claim “emergency powers” for anything they want and the ONLY thing they do is make criminals of those who are too ignorant or are domestic enemies of the USA and actually try to enforce these “pretend” “laws” when they should have immediately arrested those who wrote and gave those orders.
Norton v. Shelby County... The Court said: “An unconstitutional act is not a law; it confers no rights; it imposes no duties. It is, in legal contemplation, as inoperative as though it had never been passed.”
And that applies to any (and all) governmental action outside of the Constitution...”
"What are the defining characteristics of a limited government? They are its disabilities; what it does not have legal authority to do. Look at the First Amendment... What does it do? It guarantees freedom of speech, freedom of press, freedom of religion. But how does it do that? I quote: “Congress shall make no law abridging the freedom of speech or of the press” etcetera.
“Congress shall make no law;” that’s a statement of an absence of power. That’s a statement of a disability. " Dr. Edwin Vieira, Jr.
The US Constitution does not allow for those elected or hired to implement or install “emergency powers”. It is not in their job description, the contract they agreed to when they took the governmental office or position they occupy – elected or hired, military or nonmilitary. The Bill of Rights is a list of further restrictions put upon those who serve or occupy governmental positions; the US Constitution defining exactly what they can do, which restricts, forbids anything else that is not specifically listed there. It does not allow for “executive orders” or “judicial orders” rather it forbids them in Article I, Section. 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Nor does it allow “emergency powers” under whatever pretext those in governmental positions would like to pretend they can use against us.
The word “All” in Article I, Section. 1 is all inclusive, meaning no one in the executive branch or within the judicial branch nor their “minions”, may create laws, executive orders, emergency powers, etc.
Constitution in Article II, Section 1, Clause 8.
‘Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”’
Notice that the Framers placed the presidential Oath of Office after the beginning clauses which set forth the organization of the executive department, and before the ending clauses that specify the contours of the President's assigned power. The President is required to take the oath after he assumes the office but before he can lawfully execute it. The location and phrasing of the Oath of Office Clause strongly suggest that it is not empowering, but that it is limiting - the clause limits how the President's "executive power" is to be exercised.
presidents often lay claim to extraordinary powers to preserve the nation. Such emergency powers are neither granted expressly to the president nor delegated to Congress by the Constitution. Instead, they are judged to reside purely in the need for leaders to protect national sovereignty and domestic order. The mandate in Article II that the president “preserve, protect and defend” the US Constitution and uphold its provisions is considered (by those who want those powers) to contain implicitly the notion of emergency powers. Yet that cannot be true since they are required to “PRESERVE”, not only “protect and defend” the US Constitution.
"Preserve" means to To keep in perfect or unaltered condition; To maintain in an unchanged condition; To keep or maintain intact. It does NOT mean to change, modify, add to, or destroy.
Thomas Jefferson: “The government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Alexander Hamilton: "Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
James Madison, Federalist 46, 315-23: “The Foederal and State Governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes... They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone; and that it will not depend merely on the comparative ambition or address of the different governments...
James Madison: “The ultimate authority resides in the people, and that if the federal government got too powerful and overstepped its authority, then the people would develop plans of resistance and resort to arms.”
James Madison, Federalist 57: that Congress "can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society."
Madison, Federalist 45: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Furthermore, Article VI Section 2 of the U.S. Constitution specifies that the authority delegated to the Federal government is supreme only when the US Constitution is followed:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
While the U.S. Constitution and laws made in pursuance thereof are the supreme law of the land, this does not mean that the Federal government is supreme in everything it does. The federal government is ONLY supreme when it is carrying out it's constitutionally assigned duties – and ONLY those assigned duties - in a constitutionally approved manner.
Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"
“construe: v. to determine the meaning of the words of a written document, statute or legal decision, based upon rules of legal interpretation as well as normal meanings.”
Making sure that the federal government’s authority was limited to only those powers enumerated (listed) within the U.S. Constitution, many states ratification was contingent upon amendments being passed including what became the 10th Amendment (Thomas Jefferson considered this the “foundation” of the Constitution):
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people“
The Preamble to the Bill of Rights emphasis the limiting nature of the US Constitution on the federal government:
"... THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution..."
The Rule of Law is NOT for the protection of the guilty, it is for the protection of all people in the USA FROM government violations of individual rights.
Commander in Chief is the constitutional role granted to the president as head of the United States' armed forces. Under Article III of the constitution the president is given authority to LEAD "the army and the navy of the United States and of the militia of the several states when called into the actual service of the United States."
Yet Obama, nor the Bush's, Clinton, etc has NOT lead the troops into battle as they are required. They need to be there as the CoC to raise moral, fight when needed, etc. Yet the cowards send others to die in unlawful wars.
The congress has committed Misappropriation of Funds, a felony for which they can be held personally responsible (intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official...).
US Constitution, Article I, Section. 8, Clause 12: “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years”.
US Constitution, Article I, Section. 8, Clause 11: says the congress (and only the congress) has the authority: “To declare War..."
War must be declared by congress in order to be a lawful war that our US military are used to fight in, it must be in defense of our nation ONLY which is why so many lies were used as excuses to get us into wars. Since they were not, and are not, lawfully declared wars, ALL who died on all sides make that mass murder, etc that those who serve within our government had a hand in and MUST be fully prosecuted for.
War cannot lawfully be "declared" against a tactic such as the "war against terror" or the "war against drugs"; both are not wars and not even the congress can declare a war against a tactic.
War defined: 'The Open and DECLARED conflict between the armed forces of two or more states or nations'.
Of course ALL oath takers can be held personally responsible, state and federal because they personally accept and take responsibility for keeping that oath in exchange for the position or office they hold.
Mr. Feldman lost the debate at 1:08 when he was asked if, as the aggressors, our enemies decide when the war ends and essentially stated that we are not at war because congress has not decided we are. If religious radicalism creates offensive war and we decide it hasn't, we are still at war. If the decision we are not at war precludes our ability to defend ourselves constitutionally (even slightly), then congress would have to be right about radical Islam not attacking us for the limitations not to exacerbate our vulnerability (even slightly). The audience did not accept this.
WOW! It's hard to believe so many would have changed for the argument. Legal murder of citizens without due process is a tyrants wildest dream! Absolutly amazing! But history has shown time and time again a nation of fools is surly doomed.
Against..Wonder if that will change?
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