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Droning on About Constitutional Law

© Tom Tomorrow

Don’t get me wrong, I’m not at all happy with all the drone attacks being done in our name. But I think the left is barking up the wrong tree calling this a violation of the constitution. The constitution specifically gives the president the power to conduct wars, and whether we like it or not people do get killed during wars. Mostly without any due process or constitutional rights whatsoever. And (more or less) innocent bystanders also get killed. War sucks.

But it is up to Congress to both declare these wars and to fund them. So I think this issue boils down to whether you think the war on terror is an actual war or not. Unfortunately, Congress and a lot of Americans certainly think it is a war and want the president to kill the terrorists. So much so that they got us into an absolutely stupid war in Iraq. Did we learn anything from that? If anything, we learned that instead of sending our sons (and now daughters) to war, that we would be way happier to have unmanned drones doing the killing. And we told the president to do just that.

Personally, I think we as a country completely overreacted to 9/11. We essentially gave the terrorists a huge victory, doing more damage to ourselves than the terrorists could ever have done themselves. Sadly, it was a brilliant ploy and we fell for it.

Will we ever have a reasoned discussion about what we should do about terrorists? I doubt it. But getting mad at Obama for doing exactly what we told him to do is pathetic. And complaining that it is unconstitutional seems to be completely oblivious to the realities of war.



  1. ebdoug wrote:

    My sister looked it up in the Constitution:
    “Article I, Section 8 reads: The Congress shall have Power…To establish Post Offices…. Not, Must establish”

    Monday, February 11, 2013 at 11:01 am | Permalink
  2. Hassan wrote:

    “..Kill the terrorists..”

    Who can disagree with killing them? Now the issue is how did president decide US citizens Al Awlaki, Samir Khan were terrorists? Because they were propagandists but not white radio show hosts. How was it determined that Al Awlaki 16 year old son (US citizen) also needed to be taken care of. Was there judicial oversight? Were they indicted and convicted (even in their absence)? If American military forces were attacking enemy military installments and they were there, then it would be understandable as collateral damage, but they were specifically targeted.

    Monday, February 11, 2013 at 11:36 am | Permalink
  3. ptgoodman wrote:

    What are you talking about? War? Who declared war?

    Monday, February 11, 2013 at 12:00 pm | Permalink
  4. Hassan wrote:

    Please read

    Monday, February 11, 2013 at 12:11 pm | Permalink
  5. ThatGuy wrote:

    I never thought I’d come out in defense of talk radio, but the difference between what Rush and the other circus clowns on talk radio are doing and what al-Awlaki and Khan were allegedly doing are very different. While Rush certainly isn’t doing the US any good, he isn’t promoting the killing of Americans or trying to recruit people to do so.

    Then we get to what constitutes treason according to the Constitution. Giving aid or comfort or adhering to enemies of the United States or going to war with the US is treason. To be convicted, at least two witnesses of the same act must give testimony of that act, or the person must confess to treason in open court. Having connections with the underwear bomber and the Fort Hood shooter would certainly raise some issues for al-Awlakix, and I believe Khan stated on his website that he was a proud traitor to the US. Where we run into a problem is the issue of “open court”. By the letter of the Constitution, there would have been a trial, but this is unrealistic considering where these two men were.

    Sadly, drones are really the only game in town for going after terrorists or even alleged terrorists. The US, particularly we, the citizens, need to walk a really fine line between allowing the government really shady powers and recognizing the inherent difficulties of prosecuting a war (or battle, struggle, whatever) against an enemy that isn’t lining up in bright red coats thirty yards from our lines.

    Monday, February 11, 2013 at 12:32 pm | Permalink
  6. Hassan wrote:

    Why cannot they be tried in absence? Did government make a case for their treason (all three of them) in court before getting approval of their assassination?

    Monday, February 11, 2013 at 1:30 pm | Permalink
  7. ThatGuy wrote:

    Say they did have an open trial where these men were convicted of treason. Wouldn’t this probably convince the convicted traitors to go further underground and become more difficult to find? Holding a trial with the witnesses in plain sight could also compromise intelligence sources. Again we are running into the reality of war and espionage as they were in 1789 versus how they exist today.

    I’m also not certain that a civilian court could deliver a sentence of “death by Hellfire missile” as a form of capital punishment.

    In the end, this is sort of perfect political irony. Those on the left criticizing Obama or Bush for this (not necessarily including you, Hassan) are looking at EXACTLY what the Constitution states while the right (presumably) and those who support drone warfare give it a bit more leeway. An interesting bit of role-reversal.

    Monday, February 11, 2013 at 1:53 pm | Permalink
  8. Hassan wrote:

    THATGUY, I am not left or right, all I know is that people of my faith are being targeted/assassinated without trial, and insensitive people in right and left are comfortably justifying it in name of war. I do not blame you, your thought and thought of Obama is quite mainstream. It is ok in America to kill muslim americans to save white/black/jew/gay americans. No one cares except for very few. For most if the “real” americans are saved, so be it.

    Monday, February 11, 2013 at 5:08 pm | Permalink
  9. Dave TN wrote:

    When in war we do horrid things, as does the enemy. Whether we are at war or not is not a question I can or propose to answer as much as when do you declare war over. This could be a perpetual war, for their are no generals to surrender, no leaders of countries to speak to their people and government to ask for terms. No this is more akin to chasing thugs who wrap themselves in flags of religion and do things that are warlike. How does a country like ours deal with criminals who murder and steal. How do we deal with essentially organized crime and how do we prosecute their crimes. And lastly how do we sentence the criminals. The answers may define us as a country for generations to come.

    Monday, February 11, 2013 at 7:06 pm | Permalink
  10. ThatGuy wrote:

    This isn’t a random pogrom against Muslim Americans, Hassan. They are’t being targeted because of their faith but because of what they were accused of doing. What we as a country are grappling with is when does someone’s American citizenship no longer matter (in terms of getting due process as a civilian) when trying to combat terrorism.

    Monday, February 11, 2013 at 11:06 pm | Permalink
  11. Anonymous wrote:

    It isn’t what they are accused of doing. It is what they are accused that they might do.

    Monday, February 11, 2013 at 11:09 pm | Permalink
  12. Iron Knee wrote:

    Actually, Hassan makes a good point in comment #6. In our country, if someone is a flight risk a grand jury can issue a secret arrest warrant. There’s no reason why they could not have done this, arrested al Awlaki, and tried him as a criminal.

    But no, instead we as a country decided that we were at war (perhaps permanently) with terrorists, and gave Bush war powers to invade Iraq preemptively, and Bush and Obama the power to pursue terrorists, even American citizens, and assassinate them. And we cheered when Obama did exactly that to Osama bin Laden.

    To me, the problem is that we have declared war on Terrorists, namely Muslim terrorists. We should have treated it as a (horrible) crime. Treating it as a war was part of our overreaction and is causing us no end of problems.

    Dave TN has it exactly right. War is a horrible thing. I think it would have been hard to find anyone in America who wept when Hitler didn’t get a fair trial. The problem here is that now we have institutionalized war as a permanent thing. The founders tried to protect against this by putting in the safeguard of requiring Congress to declare and fund war, but Congress has abdicated this responsibility.

    Maybe the founders should have been more explicit about the conditions under which it would be legal to declare war, and given the Supreme court the power to decide if a particular war is constitutional. But the problem with any such prescription is that it is unclear whether the Revolutionary War they had just conducted would have passed muster.

    Monday, February 11, 2013 at 11:18 pm | Permalink
  13. ThatGuy wrote:

    Awlaki was hiding in remote areas of Yemen for the last years of his life. Yemen doesn’t have an extradition treaty with the United States, so bringing him back for trial would have been tricky. In Yemen, however, he was tried in absentia, found guilty, and a dead or alive warrant was put out on him.

    I cringe as much as the next person at the President having the power to kill American citizens without due process, but I also wonder how much leniency you can give American citizens who are beseeching people to attack the United States. At a certain point, I think an enemy of the country is an enemy of the country regardless of what citizenship they hold. It isn’t ideal, of course, but I really don’t see an alternative for policymakers facing these sorts of of unconventional threats.

    Tuesday, February 12, 2013 at 12:56 am | Permalink
  14. ebdoug wrote:

    Hassan, I’ve been crying since March 2003 about the loss of life in Iraq for nothing, nothing, nothing.

    Again CSM reported on a check point in Baghdad. Now this is the oldest civilization on this earth. Family of seven coming home in the evening. The US soldiers shouted “Halt” to their car. The Father thought they were trying to kidnap his family. He didn’t know English. The US soldiers opened fire (no due process there) Killing the father, the three sons, the older daughter. Leaving the pregnant mother and her eight year old daughter. The US gave her 11K to support her family. As she said, “That was hardly enough to pay for the funerals, much less counseling for my daughter.” And Oh, yes, I saved that clipping. And come to this site daily to realize there are sane people in this country.

    Tuesday, February 12, 2013 at 6:46 am | Permalink
  15. Hassan wrote:

    THATGUY, I was not aware he was tried, the government should make it public (after the killing at least, if not before). I am assuming president presented his case to court and evidences. Although I have read different accounts (from reliable sources) that he was even in custody in US and in Yemen (which fully cooperates with US) and then let go. And then he even went to US embassy in Yemen once but was sent back. Regardless, the constitution should be followed in any case. If he cannot be treated as criminal, but being treated as traitor, then the constitutional guidelines to deal with traitor should be followed. But so far government has not come clean on this matter. And I am not sure what was the case of his 16 year old son killed 2 weeks later. Do you have knowledge why he was killed?

    EDBOUG, yes that is extremely tragic and should not have happened. But the difference is that the incident in Iraq was side effect of waging an unnecessary war, and the soldier did not know better. And our government did acknowledge the mistake by giving some token money. While on the other hand we have a constitutional scholar president who is killing US citizen without due process (unless they tell what process they followed)

    Tuesday, February 12, 2013 at 8:20 am | Permalink
  16. ThatGuy wrote:

    If I remember correctly the son was killed in a strike targeting someone else.

    To be clear, the elder Awlaki was tried by the government of Yemen, so we can debate the questionable merits of US assets carrying out kill orders issued by other governments too.

    This man was indicted for basically the same things Awlaki was involved in, so it is interesting that the same thing wasn’t done in the Awlaki and Khan cases, given the similarity in charges.

    As to what treason is punishable by under US law:

    “whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

    Tuesday, February 12, 2013 at 1:24 pm | Permalink
  17. Hassan wrote:

    THATGUY, yeah not sure why they could not indict both of them as well. You do know that in order to declare someone traitor there is whole due process? You can not just arbitrary call someone traitor.

    Tuesday, February 12, 2013 at 3:17 pm | Permalink
  18. Thatguy wrote:

    What I posted there is the law that Congress passed to define the punishment for treason. My first comment (5) paraphrases due process for treason outlined in the Constitution. Either two witnesses must testify about the same treasonous act or the person in question must confess in open court to be convicted as a traitor.

    As I also said above, the difficulty lies in (in no particular ordertrying to peotect intelligence assets, account for the rights of American citizens, eliminate threats to Americans, and figure out the balance between those and a myriad of other factors before acting or not.

    Apologies for any grammar or format issues my phone doesn’t seem to like this comment section.

    Tuesday, February 12, 2013 at 4:53 pm | Permalink
  19. Diogenes wrote:

    I have two points,

    Firstly that the United States has legally been in a state of emergency since 1979. Carter started this with the Iran situation but no president (including Obama) has bothered to end it. All the pres needs to do is tell congress every year.

    Secondly, something that hasn’t been brought up in this discussion yet is the double-edged feature of this particular blade. It’s only a matter of time before other nations get drones, then who knows how long until paramilitary organizations do. If the US continues along this path, what’s to stop nations or groups from using drones on US citizens or assets at home or abroad? If Pakistan feels threatened or if a group like Al-Qaeda or Ansar Dine gets hold of these, continued unrelenting usage of drone warfare by the US is only going to embolden others to use it. To use a slightly outdated example, the Soviet Union got ‘the bomb’ 4 years after the US used it in WWII. It’s never been used since for two reasons: A) because of its visibly destructive power, but mainly B) because after the US used it to end that war, they never used it again and certainly never abused the fact that they had it (Despite Gen. MacArthur’s best efforts). If the US continues upon this path they are likely to see violent repercussions from it in the future.

    Wednesday, February 13, 2013 at 7:48 am | Permalink
  20. Iron Knee wrote:

    good points

    Wednesday, February 13, 2013 at 8:05 am | Permalink
  21. ThatGuy wrote:

    The Predator drone (the one depicted in the comic) has a range of under 700 miles, so not many states have the capability to use them against the contiguous United States. Hitting US targets abroad, of course, would be easier. There’s really nothing to stop non-state actors from attacking US interests, but what is stopping other states is similar to (but smaller than) why the US and USSR never went to war. Had the US nuked anything, chances are the USSR would have nuked something and at a certain point both countries could destroy the other many times over. This was called mutually assured destruction. In drone terms, if anyone went after a US citizen without consulting the US, they could potentially pay for it many times over.

    Wednesday, February 13, 2013 at 9:24 am | Permalink
  22. Iron Knee wrote:

    Thatguy, you mean, like if someone crashed airliners into major buildings in the US, killing thousands of people, that we might retaliate? Like we did against Iraq?

    Thursday, February 14, 2013 at 12:55 am | Permalink
  23. Thatguy wrote:

    As I said, there’s nothing to stop non-state actors from attacking the US (I meant that terrorist drones were only likely abroad) because they have no easy targets to risk losing in turn. Particularly if our government chooses to attack an unrelated country as a response.

    Thursday, February 14, 2013 at 10:55 am | Permalink