In other words, consider soldiers on a battlefield. They do not need judicial approval to kill people they perceive to be enemies. However, they are not given a carte blanche to shoot anyone they wish, or use any means they wish. In cases of soldiers executing questionable judgement, there is a review after the fact.

Police officers are also given more leeway when it comes to killing people. I believe there is always some sort of review after the fact, but I don't think that investigation is the same as a court case (i.e. it may occur entirely within executive branch agencies.)

Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.

One difficulty comes with the definition of battlefield and war. If a battle makes it ok, what does that say about a war on terror, which appears to be perpetual?

> Therefore, so long as there is process (read: a paper trail) then the people involved in these assassination programs can undergo judicial review should their decisions be questioned, e.g. by whistleblowers, when the documents are declassified, or if a review is mandated by congress.

Another issue comes with the types of review. Whistleblowers are illegal and increasingly shut down. Declassification takes ages, and a Congressional review may never happen. When people talk about due process, they usually mean a process that will always happen, not one that is optional.

In any case, the threat of legal repercussions exists, and is likely enough to prevent US citizens from being assassinated arbitrarily.

I believe you have misinterpreted my objection. I do not object to the killing, I object to the killing without a non-executive legal authority looking over the case. Having a review process and strict bounds on the reasons for which he or she could/should be killed.

Let's say I (an American) am a self-proclaimed member of a terrorist or terrorist-affiliated organization (e.g. Al-Qaeda in the Islamic Maghreb). I produce bombmaking instructions for internet distribution, and repeatedly claim my intent to kill thousands of people. There is a request to have me killed should the opportunity arise, and I could not be otherwise captured. It is almost certain that a legal review process would come to the conclusion that I am indeed a reasonable threat, so on and so forth.

Let's say I (an American) am a self-proclaimed Prophet of the Great Gazoob, wielding a Pineapple and a Rubber Duck in mid-day traffic, and repeatedly claim my intent to kill thousands of people. There might be various grounds for legal action against me (state and municipal disturbance laws, maybe a few laws regarding making threats), but it would not include my death. A legal review process would hopefully not label me as being worthy of assassination should the opportunity arise.

Disclaimer: I realize I am dismissively using a caricature of a person of unsound mental state here. This is not meant to be an attack on such people, and is used for illustrative purposes.

There's a reasonable argument to be made that the AUMF in 2001 is too broad, but clearly, the intention is to declare the existence of a military conflict with Al Qaeda. The US has not, to my knowledge, declared war against Prophets of the Great Gazoob.

The unequal application of criterion for targeted assassination vs arrest-trial-conviction is what bothers me, from a constitutional standpoint.

Even disgustingly vile child molesters are afforded a trial. Why not try terrorists?

Doing so would be more in keeping with the ideals of the USA as opposed to the current "Empire Strikes Back" paradigm where the very foundations (right to trial, right to be secure in one's 'papers and effects,' innocent til proven guilty) of the USA are being sidestepped in the name of a "war on terror" which, in, and of, itself, is a form of terror.

Thus we have arrived at a point where the government regularly abrogates its mandate, and those who are against such acts may be labeled as "terrorists" whose demise is expedited by said policy.

It's an an answer to the question, how does one deal with an entity which does not subject itself to a set of groundrules one expects/operates in. In this case, you meet them half way (in vernacular terms, that's a good deal) for the offender (since their, AQ's, whole existence is predicated on vanquishing Kafirs).

The alternatives are you meet them in their terms adopting their groundrules for dealing with you (this is a strong position to work from), another is you deal with them as you deal with other entities with whom you have structured relationships (this is a weak position to work from) since they would not likely reciprocate.

A tax evader, you attempt to extradite, if you have agreements, if not, you try to get them when they make a mistake (fly into a place with a treaty). But when a nation is concerned with national security, there is less pussyfooting and more serious action, where possible. (i.e if AQ were based in China, the approach would require some rethinking or at least some negotiation with the host country.)

(The answer would be "the judicial branch", but funny how they're cut out of the equation.)

However, focusing on current technology, I think the scary part about these rules for airstrikes is:

- Suspected people can be killed without being told that they are wanted. This is made worse by the fact that the list of wanted people is not publicly available.

- Suspected people can be killed without being given the option of submitting to trial (no "stop or I'll shoot")

The above two items make airstrikes unpalatable for me. Thankfully they don't seem beyond remedy (perhaps version 2 of the drone shoots down a ball-and-chain + warrant before resorting to a missile), but in the mean time I find it very disturbing. If this was happening in America I would feel like America was over.

http://www.treasury.gov/ofac/downloads/t11sdn.pdf is a good proxy.

As for your other point, I'm no expert on the laws of war, but I don't believe one is required to abstain from acting against a legitimate enemy absent a reasonable possibility of taking them prisoner. This distinction is discussed in the white paper; it's against the laws of war to attack an enemy who you have taken into your confidence (eg agreed to meet under a flag of truce, or promised safe passage as one might to a plenipotentiary), but it's quite OK to ambush an enemy who is conducting their own operations against you.

As for the laws of war, I think they were created for situations where the opponents could be easily identified. (Opponents wearing a uniform for example).

Applying them to a situation where 'enemy' has a stochastic definition is a dubious thing. Of course it creates benefits, but it also creates a lot of problems. Killing people without due process, in the long run, creates an incredible amount of ill will. I think this, beyond rhetoric about justice, is the reason we have due process for criminal procedures -- the people who knew the innocent person you just killed get angry with you. Even if it was an accident. Note that this definition doesn't really effect two uniformed opponents on a battle field -- at least not in the same sense as "John was killed by a drone while driving to Texas for his vacation".

The other good argument for providing due process is that without due process you give a huge weapon to your enemy... as it becomes easier to frame someone, and as that framing becomes more deadly, it becomes easier to convert people to your cause through blackmail.

In summary: laws of war weren't handed down on a stone tablet, they codify a way of being that reduces the long term negative outcomes of war. When a new form of war is crated, you probably new new laws. The old ways of minimizing negative outcomes are probably obsolete.

I think you're assuming that due process and judicial process are the same thing, but I don't agree with this.

How about non-lethal chemical agents?

"We achieved our central goal … or have come very close to achieving our central goal, which is to de-capacitate al-Qaeda, to dismantle them, to make sure that they can’t attack us again." -Barack Obama (http://www.reuters.com/article/2013/01/12/us-obama-afghanist...)

Edit: My response made more sense before the parent edited their comment. Their original comment simply asked me to explain how mine was appropriate in the context of this discussion.

Interesting article about Japanese troops who were not aware of the surrender, or refused to recognize it: http://en.wikipedia.org/wiki/Japanese_holdout

So yes, I can see why such a response is necessary. I guess now the issue falls specifically on the wording of the issue. Terrorist can really mean anything and are we on a "slippery slope" where the President is being given power to assassinate any citizen he can label?

That wording is a bit of a recipe for endless war (as written a dozen years later).