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Administration Ordered To Divulge Legal Basis For Killing Americans With Drones 310

Posted by samzenpus
from the reason-time dept.
An anonymous reader writes "In a claim brought by The New York Times and the ACLU, the Second US Circuit Court of Appeals has ruled that the administration must disclose the legal basis for targeting Americans with drones. From the article: 'Government officials from Obama on down have publicly commented on the program, but they claimed the Office of Legal Counsel's memo outlining the legal rationale about it was a national security secret. The appeals court, however, said on Monday that officials' comments about overseas drone attacks means the government has waived its secrecy argument. "After senior Government officials have assured the public that targeted killings are 'lawful' and that OLC advice 'establishes the legal boundaries within which we can operate,'" the appeals court said, "waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred" (PDF).'"
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Administration Ordered To Divulge Legal Basis For Killing Americans With Drones

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  • SCOTUS (Score:5, Insightful)

    by Anonymous Coward on Monday April 21, 2014 @02:41PM (#46807905)

    Good it passed appeals; the administration will likely appeal the decision and this is the kind of thing the SCOTUS will take. Frankly it's about time some of the "war on terror" policies were seriously and heavily scrutinized for their legality.

    • Re:SCOTUS (Score:5, Insightful)

      by NotDrWho (3543773) on Monday April 21, 2014 @03:49PM (#46808617)

      Yeah, and if SCOTUS rules against it they can use their many SCOTUS investigators to make sure the administration is complying, and the legendary SCOTUS army to stop them if they're not.

      • Re:SCOTUS (Score:5, Insightful)

        by kilfarsnar (561956) on Monday April 21, 2014 @04:41PM (#46809213)

        Yeah, and if SCOTUS rules against it they can use their many SCOTUS investigators to make sure the administration is complying, and the legendary SCOTUS army to stop them if they're not.

        So can we just all admit that we have no control over our government anymore, and that any idea that we live in a democracy or a republic is just a pleasant fantasy? If a Supreme Court ruling can be simply ignored by the other two branches, why are they there?

        • by khallow (566160)

          So can we just all admit that we have no control over our government anymore

          Why admit something that isn't true? Would I love to have more control over my government, the US government? Absolutely. Would I like to have a much smaller government which can be controlled easier? Absolutely. Would I like constitutional rule changes, like abandoning the first past the post, that undermine the current political oligopoly? Absolutely. That doesn't mean that no control currently exists, but rather what control does exist can be greatly improved.

          • Re:SCOTUS (Score:4, Interesting)

            by Dishevel (1105119) on Monday April 21, 2014 @06:32PM (#46810307)
            Yup. The problem here is not that the people do not have a means to control their government it is that the vast majority of them do not give a shit. We have become a nation of people that will wait till the cops arrive while being bludgeoned to death. We will vote which ever party promises us the most free stuff. We value the illusion of safety over freedom. the news anchor is our one true God.

            We have exactly the government we deserve.

            • Re:SCOTUS (Score:5, Insightful)

              by Loki_1929 (550940) on Monday April 21, 2014 @07:28PM (#46810745) Journal

              Yup. The problem here is not that the people do not have a means to control their government it is that the vast majority of them do not give a shit. We have become a nation of people that will wait till the cops arrive while being bludgeoned to death. We will vote which ever party promises us the most free stuff. We value the illusion of safety over freedom. the news anchor is our one true God.

              We have exactly the government we deserve.

              SOME people in this country have exactly the government they deserve. Those of us who faithfully follow the process, campaign for better ideas, and get nowhere because we're surrounded by masses of apathetic, incompetent idiots do not have the government we deserve. Significant power and authority returning to the individual states would help with that (not solve it by any means, but help).

    • by Lumpy (12016)

      Just repeal PATRIOT and it solves 90% of the problems. Have you written your senators demanding they repeal it?

    • by boorack (1345877) on Monday April 21, 2014 @05:23PM (#46809667)
      The saddest thing of this fiasco is that it applies only to Americans. (Un-)People of other nations are of no concern whatsoever. Obama can bomb the hell out of them and no one cares - at least in the US it not discussed at all. This looks pretty much like taken straight from nazi playbook. It emphasizes hipocrisy of all Americans proud of being "the greatest democracy in the world" (which it isn't).
      • by amicusNYCL (1538833) on Monday April 21, 2014 @05:46PM (#46809841)

        There is a difference, however subtle, between a government killing its own citizens versus other people. Governments kill citizens of other countries all the time, that's called war. When a government is using its military to attack its own citizens, regardless of which government it is, then that is a major problem. Those governments are typically not seen as very legitimate in modern times. Syria is a good example of that. Syria is an interesting case though, the world doesn't seem to really care what's happening there.

        It would be interesting to see the US government declared illegitimate by its people. I would support that, I know that I am not represented in my own government. If I contact my representatives I get a boilerplate response. If I try to meet with one of my representatives I get ignored. This country is definitely not a representative democracy or really even much of a republic, it is an oligarchy. The elite and wealthy are the ones with the real power, not the people in general.

  • by operagost (62405) on Monday April 21, 2014 @02:44PM (#46807925) Homepage Journal

    History dictates that Obama will declare "executive privilege" or some other nonsense. He has already done this for himself and his AG; the latter currently in contempt of an ineffective Congress which is unlikely to do anything about it. With a Democratic Senate, there will be no impeachment.

    These are the facts, and I commend all of you who could read them before down-moderation.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      You are absolutely crazy if you think anyone in government wants to explain this or be associated with this. All parties want this to go away quietly, because there's a non-zero chance "their guy" will be using this same tactic in the coming years.

      This acts to disempower the government, which makes it a natural enemy to anyone working in the government.

    • by UconnGuy (562899) on Monday April 21, 2014 @03:04PM (#46808159)

      With a Democratic Senate, there will be no impeachment.

      American Government fail on your part. The House of Representatives impeaches. The Senate convicts. Clinton was impeached, but not convicted and removed from office.

    • I think this is a little extreme in its assertions. It's not impossible that it's true, but I doubt you'll ever change your opinion if the white house did comply(not that complying would be enough to actually do anything important).

    • There wouldn't be an impeachment if the Tea Party controlled both houses of Congress. One of the first things the Obama administration did was get Congress to sign off on everything they were doing including the illegal surveillance.

    • by houghi (78078)

      History dictates that the sitting president will declare "executive privilege" or some other nonsense.
      Fixed that for you.

      • by dryeo (100693)

        They'll also protect the previous President regardless of political affiliation. Just as there has been no repercussions for Bush, there won't be for Obama.

    • by JoeMerchant (803320) on Monday April 21, 2014 @03:57PM (#46808683)

      When legal basis is secret, everything is legal... or illegal, as the keepers of the secrets deem fit.

    • Predictions aren't facts no matter how certain you are of them, so "These are the facts" isn't really accurate. Aside from that I sadly can't disagree.
  • above the law (Score:5, Insightful)

    by dlt074 (548126) on Monday April 21, 2014 @02:47PM (#46807957)

    we have not followed the law of the land for some time. why start now?

    more meaningless proclamations.

    • We haven't done [principled thing that we have done by-and-large and at tremendous expense] with [notable exceptions that generate tremendous outrage]. I just don't know.

      I don't like the failures, but everyone going "We don't actually obey the constitution anymore" don't put forth any meaningful metrics to show that it changed, and a subjective examination of American history shows lots of abuses from day 1.

      Suppose you have my, and a couple hundreds of other dedicated peoples' promised assistance to fix th

      • We haven't done [principled thing that we have done by-and-large and at tremendous expense] with [notable exceptions that generate tremendous outrage]. I just don't know.

        I don't like the failures, but everyone going "We don't actually obey the constitution anymore" don't put forth any meaningful metrics to show that it changed, and a subjective examination of American history shows lots of abuses from day 1.

        Suppose you have my, and a couple hundreds of other dedicated peoples' promised assistance to fix the problem. Propose a first step.

        Indeed. The difference between the past decade and the previous centuries is that now, a sizable number of people can become easily aware of these issues, and can also be easily impacted by them.

        Think of it this way: the Constitution was drafted by slave owners, and yet by today's interpretation, it prohibits slavery and racial discrimination (even without amendments). What changed the interpretation? Society as a whole becoming fed up with how key bits were interpreted (such as "people").

        I think you'll

        • Sure, without amendments, even though 13 and 14 are specifically about that.

          (And a lot of jurisprudence about non-discrimination come at some level from 14)

      • I'd start by lining up the lobbyists and ceo's of any company with more than 2,000 employees (large enough to lobby/control government). A new set would crop up, line those up too, repeat until companies voluntarily downsize and lobbying is seen as a sub-optimal and short career.

  • Lets see what hapens (Score:5, Interesting)

    by ganjadude (952775) on Monday April 21, 2014 @02:47PM (#46807961) Homepage
    I wont hold my breath that he wont hide behind executive privilege or use bushes favorite "Turruiists!!!" but one thing I do know is that obama will find some way to avoid having to explain himself. Most transparent president in history and all....
  • Obligatory (Score:5, Insightful)

    by Lumpio- (986581) on Monday April 21, 2014 @02:50PM (#46807991)
    So let me get this straight, it's perfectly OK to kill people with drones as long as they're not American citizens?
    • Re:Obligatory (Score:5, Informative)

      by l0ungeb0y (442022) on Monday April 21, 2014 @03:02PM (#46808135) Homepage Journal

      So let me get this straight, it's perfectly OK to kill people with drones as long as they're not American citizens?

      Yes

      And yes American citizens abroad as well.

      http://www.politifact.com/texas/statements/2014/mar/19/kesha-rogers/four-us-citizens-killed-obama-drone-strikes-3-were/ [politifact.com]
      http://www.thenewamerican.com/usnews/constitution/item/18019-federal-court-drone-killing-of-u-s-citizens-is-constitutional [thenewamerican.com]

      ... well, as long as you are on a terror watch-list which automatically removes your rights or aren't the "intended" target.

    • Re:Obligatory (Score:5, Interesting)

      by arth1 (260657) on Monday April 21, 2014 @03:14PM (#46808271) Homepage Journal

      So let me get this straight, it's perfectly OK to kill people with drones as long as they're not American citizens?

      It should be the other way around. A country should only be permitted to kill its own citizens, not citizens of other countries.
      The former is acceptable, given the citizens in question are part of the electorate who sanctioned the laws and government, giving them powers over their lives.
      The latter is an act of war and trespasses on the sovereignty of other countries and its citizens.

    • by BitZtream (692029)

      How is it different from killing them without drones?

      What the fuck does a drone (just tool) have to do with it other than its a new reason to be uppity?

      • by ewieling (90662)
        Using a drone makes assassination inexpensive, easy, and risk-free, as compared to physically sending people. I do not want assassination it to be inexpensive, easy, or risk free. I want it to be expensive, difficult, and risky.
    • So let me get this straight, it's perfectly OK to kill people with drones as long as they're not American citizens?

      It seems so, and if the government accepts that American citizens cannot be so killed, then, well, there will be some method to remove their citizenship and then they can be killed. And then all will be as it was before; or perhaps a bit worse.

    • So let me get this straight, it's perfectly OK to kill people with drones as long as they're not American citizens?

      A lot of rules are different for citizens and non-citizens.

      As an example, I expect that there isn't a country in the world that can legally deport its own citizens, but there's no problem with deporting illegal aliens (non-citizens in a country in violation of immigration laws).

      Likewise, in the US, it's not illegal to shoot enemy soldiers, but it is illegal to shoot American citizens without

      • by Lumpy (12016)

        Unless US citizens are deemed to be enemy combatants, then you can murder all of them you want. No military man went to trial and was executed for the murders in kent state.

        If you think the US military will not mow down US citizens on orders, then you are insane. Go and ask off duty military men what their oath means. none of them will say they frag their superior officer before shooting an american citizen.

    • by blueg3 (192743)

      Outside of US territory.

      See, within the US or when targeting Americans, the Constitution and other laws apply.

      When the US kills non-citizens on foreign soil, there's no US law against it. That's because that's armed combat. (It might also be a covert operation, in which case whether it's legal is up to the country in which it took place. It's probably not legal.) Dealing with other countries killing your citizens within your borders has traditionally been dealt with through this thing called "war", and, mor

    • by Lumpy (12016)

      Yes, at least that is how the American government thinks. And there is a segment of the US population, the incredibly stupid ones, that also believe that.

  • Secret Laws? (Score:5, Interesting)

    by Anna Merikin (529843) on Monday April 21, 2014 @02:52PM (#46808021) Journal

    I am -- and the court seemed -- appalled at the idea that "secret laws" can apply in a constitutional republic.

    I doubt SCOTUS will touch this, as they tend to kick the can down the road on big issues like this, which, of course, will let it stand.

    • Re:Secret Laws? (Score:5, Insightful)

      by l0ungeb0y (442022) on Monday April 21, 2014 @03:34PM (#46808485) Homepage Journal

      Who says we're a Constitutional Republic any longer?

      Secret Laws, Secret Warrants, Secret Detention and Secret Courts have been the norm since the Patriot Act, which was signed when we lost the War on Terror in 2001, by submitting to the terrorists and renouncing our freedoms in exchange for "Homeland Security".

      And we love it. Notice how many TV shows are about Law Enforcement these days?

      • What you said is true; that's why I doubt SCOTUS will hear it. It lets them dodge a sensitive political issue without being embarrassed since only the law is in dispute according to TFA. This argument is the legal equivalent, to my understanding, of giving up one's 5th-amendment rights because one has given some information already without invoking the article.

      • Re:Secret Laws? (Score:5, Interesting)

        by Prien715 (251944) <agnosticpope.gmail@com> on Monday April 21, 2014 @05:10PM (#46809573) Journal

        "Notice how many TV shows are about Law Enforcement these days?"

        We've always had shows about law enforcement, what's changed is perspective from the 70/80's to the 90/2000's.

        The former were about largely about innocent people accused of crime who got exonerated (Matlock, Murder She Wrote, Perry Mason, Diagnosis Murder) or plain old bad detectives (Get Smart, Inspector Gadget, The Pink Panther).

        In the modern era, the cops always find the right bad guy who may get off due to technicalities (Cold Case, Law and Order, CIS, Special Victims Unit, 24, Cops).

        When the cops are always moral and their accused guilty, our justice system eventually has laws passed to conform to our notions of pop culture.

  • by mmell (832646) <mike.mell@gmail.com> on Monday April 21, 2014 @02:54PM (#46808037)
    Since when is it permissible for any government to employ military force against its own (civilian) citizens? I'm pretty sure that armed (combat) drones are military technology.
    • by Qzukk (229616)

      Since when is it permissible for any government to employ military force against its own (civilian) citizens?

      Treason against the United States, shall consist only in levying War against them

      • by mmell (832646)
        The act of treason arguably means the convicted is an enemy combatant.

        Note that "convicted" doesn't mean "we know" - it means there was a trial of some sort, with rights preserved and arguments presented before sentence is carried out.

      • Since when is it permissible for any government to employ military force against its own (civilian) citizens?

        Treason against the United States, shall consist only in levying War against them

        You forgot the rest of Article 3, Section 3. Here's the relevant part(s):

        No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

        and

        The Congress shall have Power to declare the Punishment of Treason,

        Not sure as how "blowing them away with

    • "Military (force|technology)" is an arbitrary distinction. "law enforcement" agencies of all sorts, national and local, use all sorts of technologies. As far as i have heard there is no legal distinction between a military and non-military technology. For example. The proliferation of violent commando raids against non-violent suspects.
      • by Obfuscant (592200)

        "Military (force|technology)" is an arbitrary distinction.

        Military technology is an arbitrary distinction, yes. The OP used the phrase "military force".

        Military force is when the military is used to apply force, and it is completely distinct from "military technology". A US Army PFC acting under his commander's order wielding an ax to stop someone looting a grocery store in the US is still a violation of posse comitatus even if the technology isn't "military" in nature, because it is still military force.

    • by Lumpy (12016)

      Since October 26, 2001. Patriot act passed and made it perfectly legal.

  • by nimbius (983462) on Monday April 21, 2014 @02:59PM (#46808099) Homepage
    its easier to simply do something and say you're sorry later than to ask for permission or follow the rules. We've locked up japanese americans during the second world war for nothing more than being japanese. We've tortured and detained without trial in secret military prisons the nationals of other countries in which we've declared a war upon something so ephemeral as 'terror.' We shackled and enslaved thousands of africans throughout our history in direct defiance of the charter that all men are created equal. We exterminated more native americans than hitler killed jews, an entire race of natives, just because we could. We branded countless celebrities communist, forever obliterating both their good name and their gainful employment.

    in short, this administration as every one before it will invoke the same rhetoric to assert the privilege of spying on, and murdering, american citizens. that to think otherwise is unpatriotic, that to question it at all is tantamount to unamericanism. "Because fuck you, thats why."
    • I don't know of any national entity anywhere on Earth (now or historically) which has obeyed its own rules. And I happen to love my country, the USA.

      We're not really better, I guess. Just different.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        We're not really better, I guess. Just different.

        In fact, you're well on your way to being far far worse.

        Because you justify what you do as OK, and somehow different when other countries to it.

        The hypocrisy of America is become pretty brazen. You claim to support one set of principles, but actively work to undermine those principles around the world.

        You feel self entitled to do these things, and think the rest of the world should accept it because America is awesome.

        To the rest of the world, the US is rapi

        • You do your beliefs ill service by rabidly posting invective. 'Speak' more calmly - less people may hear you, but more will listen.
          • People who would ignore the validity of someone's arguments because they don't like how they worded it are idiots who aren't worth having on your side, anyway.

  • by mveloso (325617)

    The funny thing is that this is one of the two things that Obama can't blame Bush for, the other one being ObamaCare. So it'll be interesting to see what happens when the administration loses.

    • Re: (Score:2, Offtopic)

      by Lumpy (12016)

      No Obamacare is the fault of republicans. it should have been single payer and kicked the insurance companies and big pharma in the nuts. the Repubs demanded it be the corporate welfare for insurance companies it is today.

  • Governments are generally forbidden (by who, I don't know) from employing military force against their own citizens, as well as against civilian populations.

    Nobody (including US) seems to obey that rule, however . . .

    • by BitZtream (692029)

      They aren't forbidden, its just a bad idea, it turns the country against its military and the members of the military generally are going to question attacking their dads, mothers, brothers and sisters.

      Once the military starts acting as a police force, countries fall.

      • by DigitAl56K (805623) on Monday April 21, 2014 @03:54PM (#46808647)

        If there citizens are required to be afforded due process by constitution and can not be shown to receive such, it's forbidden. The actual question is how far they can/will go before there's enough push back to either make them decide to stop or face repercussions. All of this secrecy nonsense is simply meant to avoid some of the push back by implying there is legitimacy. So long as that strategy keeps working nothing is going to change.

  • That doesn't mean that it will actually happen though.
  • Oh wait, that's right, in China you can deploy the military against anyone you want and kill someone for a blog post and in North Korea, they can kill you for absolutely any reason and in most Middle East countries it's very similar and um...yeah, so everywhere else is as or more fucked up than the US.
  • by Trashcan Romeo (2675341) on Monday April 21, 2014 @03:28PM (#46808425)
    ... if you Democrats and you Republicans will, just this once, stop trying to frame this massive criminality as something that Those Awful Others are chiefly to blame for. On this matter - as in all matters of true importance to the Empire - the two wings of the Money Party are in complete, intimate, and profound agreement.
    • Correct, sir. This is a fully bipartisan, multi-Administration travesty of law and government. And it has been building since early in the Cold War, see United States v. Reynolds [wikipedia.org] which created the "state secrets privilege" by a court ruling in 1952. It is very telling that the "facts" presented to the court in secret were, in fact, lies (learned on 48 years after the fact). In secret the government can lie to heart's content without worrying about its dishonesty being questioned or revealed.

  • by GlennC (96879) on Monday April 21, 2014 @03:29PM (#46808445)

    If I had to venture a guess, the Obama administration would say, "We did it because we can. Who's going to stop us?"

  • by MobyDisk (75490) on Monday April 21, 2014 @03:32PM (#46808469) Homepage

    I am confused on this issue. I'm not sure I even understand the question. Here is my thinking, so please comment:

    Suppose the US was at war with Country X. Men with guns attacked a US military base in Country X. The US troops fire back, killing the forces of Country X. But aha! One of the enemy was actually a US citizen! So does that mean the US troops cannot shoot at that one person?

    Suppose the US was at war with Country X. Country X had terrorists bombing buildings in Country X. The US send drones to shoot at the men who have been bombing buildings. But aha! One of the bombers was actually a US citizen! So does that mean the US troops cannot send drones to shoot at that one bomber?

    I'm unclear why the citizenship of the person has anything to do with the military action used against them. I am also unclear why the method used to fire upon the person changes anything either. Would it make a difference if the person was a US citizen because they were born here but left 2 days after birth? What if they were a naturalized citizen who was a resident for more than 7 years?

    Why is it okay to target non-US citizens with drones, but not US citizens? Why is it okay to shoot them, but not with drones?

    • by jittles (1613415) on Monday April 21, 2014 @03:48PM (#46808603)
      Well, in one case specifically the US was targeting a US Citizen who was overseas and supposedly involved in terror campaigns. He had no trial, even in absentia, which convicted him of the crime. The administration just decided it was okay to find him, launch a Hellfire missile at the vehicle he was in, and end the problem for good. It's entirely different if you find out ex post facto that one of the participants was a US citizen.
    • Most of the commenters are ignoring the ambiguity of anti-terrorist operations when American citizens might be involved. Say, it's 1999 and Osama Bin Laden is spotted in an Al Qaeda camp sitting at his workbench building IEDs. Most Americans would scream for a drone strike.

      Now, what if Joe Smith from Arkansas is sitting right next to OBL building IEDs? Now, lose OBL and it's just Joe the Terrorist from Arkansas in an Al Qaeda camp? How does the law apply? Most Americans seem perfectly fine with the ide

    • by Xylantiel (177496) on Monday April 21, 2014 @05:01PM (#46809461)

      I think the basic problem is that we are not at war with country X.

      I actually believe the basic bill of rights applies to the agents of government, not the people. i.e. it does not just protect these special people called "citizens", it restrains the government from certain actions, such as denial of due process of law, against any person. However, the general "rule of law" does not apply in a war zone. The problem is that we have become stupendously lax about exactly where the wars the US is currently fighting actually are. Are we at war with Pakistan? No, but we perform military strikes inside Pakistan without their consent. Are we a warlord or a modern country?

    • by Livius (318358)

      Now suppose the US is not actually at war.

  • Obviously we are at war. In war we have always, out of need, deliberately killed civilians and at no time have we asked for a national ID to determine whether an enemy was a citizen of any nation or not. To make it simple even on American soil a cop has the right to apply lethal force to an individual who refuses to surrender. Whether such a person is brought down by a sniper on a swat team or by a drone dropping a grenade through a window means nothing at all. Now are we to suppose that Am
  • by SoupGuru (723634) on Monday April 21, 2014 @04:16PM (#46808913)

    It's turned into a bunch of paranoid libertarians trying to one up each other with how outraged they are.

  • By what right did the US Government kill all those confederates at Antietiam and Gettysburg? The US always maintaned and stills maintains that they were US citizens. What about their due process rights? Shouldn't they have all been served warrants and had their day in court before they were killed? Maybe their families have a right to sue for violation of civil rights.

    Oh wait, they were bearing arms in open rebellion and making war on the Republic.

    Same deal here. If you openly wage war, even against

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