Anwar al-Awlkai

Department of Pre-Crime, Part 4: The NDAA Congress Is Not About to Legislate Targeted Killing

In three earlier posts, I have discussed the problem with turning the FISA Court into the Drone and/or Targeted Killing Court: As I noted, the existing FISA Court no longer fulfills the already problematic role it was set up to have, ensuring that the government have particularized probable cause before it wiretap someone. On the contrary, the FISA Court now serves as a veil of secrecy behind which the government can invent new legal theories with little check.

In addition, before the FISA Court started rubberstamping Drone Strikes and/or Targeted Killings of Americans, presumably it would need an actual law to guide it. (Though Carrie Cordero, who is opposed to the Drone and/or Targeted Killing FISA Court idea because it might actually restrain the Executive, seems to envision the Court just using the standards the Executive has itself invented.) And there’s a problem with that.

The same Congress that hasn’t been successful passing legislation on detention in the 2012 NDAA is certainly not up to the task of drafting a law describing when targeted killing is okay.

As a reminder, here’s what happened with the NDAA sections on military detention. The effort started with an attempt to restate whom we are at war with, so as to mandate that those we’re at war with be subject to law of war detention. The language attempting to restate whom we’re at war with ended up saying:

(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

Compare that language with what the actual AUMF says:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Part of the difference arises from the shift to focusing exclusively on persons (you can’t detain a nation, after all, though Palestine might disagree).

Part of the difference comes from the effort — clause 2 above — to extend the AUMF to those associated forces. This was meant to cover groups like AQAP and al-Shabaab, but as we’ll see, it’s one source of the problem with the law.

But part of the problem is that the NDAA language smartly took out the “he determines” and “in order to prevent any future acts of international terrorism” language. The former has long been a giant loophole, allowing the President to define in secret whom we’re at war against. And I increasingly suspect the Administration has been using the latter language to expand the concept of imminent threat.

In other words, in an effort to parrot back its understanding of whom we’re at war against, Congress both introduced some new fuzzy language — associated forces — and took out existing loopholes — the “he determines” and “prevent any future acts.”

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Emptywheel Twitterverse
bmaz @walterwkatz @emptywheel There is simply a ton of criminal law in there actually. Kind of hard to get across, but it is in there. I tried!
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bmaz Yes, here it is, a Storify recap of "Emptywheel's Parallel Prosecution Primer" http://t.co/VAqHz7OEVf Just what you wanted for Easter!
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bmaz @bmaz Yes, here it is, a Storify recap of "Emptywheel's Parallel Prosecution Primer" http://t.co/gdn7Eb6QYx
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bmaz @emptywheel @HanniFakhoury Well, actually, I kinda been hoping @Atrios would get a Supertrain built between Phoenix+Tucson. #WantSupertrain
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emptywheel @bmaz FFS bmaz, haven't you ever heard of driving 2 hours before? @HanniFakhoury
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emptywheel @PatrickCToomey Don't forget they're not telling ANYONE (except Moalin, who may not have been 215 but instead 12333) dragnet involved.
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bmaz @kevinjonheller Ah, you thought you had gotten rid of me, eh matey? Soon it will be glorious Packers season again!
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bmaz @KagroX So, you ARE old! #GetOffaMyLawnersUnite!
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bmaz @HanniFakhoury Wait, you are speaking with Judge Frank Zappa? Not that close, but my wife just bought gas miser Prius, Maybe I'll come down.
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bmaz @charlie_savage Wait, people still blog? Who are those guys? https://t.co/qIqdwWoed4
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bmaz And that is a wrap on today's parallel construction lesson. http://t.co/dUqzgH0Jkd
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bmaz And that, my friends, is why this post is so important. http://t.co/lI7Xs9vZ3i Shine it on at your own peril and/or stupidity.
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