Yes, the president does have the authority to use military force against American citizens on US soil—but only in "an extraordinary circumstance," Attorney General Eric Holder said in a letter to Sen. Rand Paul (R-Ky.) on Tuesday.Well, nobody doubted that, if "extraordinary" means "a state of war or insurrection." The examples given in the letter are Pearl Harbor and 9/11, both odd examples since they don't involve US citizens as aggressors. If you'd shot down the planes on 9/11, for example, you'd have killed some US citizens... but it would have been accidental to your purpose. It would have been justifiable under the Just War Doctrine of Double Effect for that reason.
I would have thought an example such as the Whiskey Rebellion or the Civil War would have been more to the point. The question isn't whether there might possibly be circumstances in which a President can use military force on US citizens, but exactly what the defining terms are.
Those were odd examples. Perhaps they were chosen to make it easy to nod in agreement that the President should have this power. Sort of the War on Terror equivalent of "it's for the children".
ReplyDeleteAs I understand it, the current position is that the President has the right to determine, in his sole judgement, when using lethal force against anyone, including US citizens, is appropriate. I read Holder's letter as not limiting that position to US citizens outside the United States.
I don't see how Holder's conclusion could be other than that. Once we have granted the President the power to kill US citizens without due process, I don't know why it would matter where those US citizens are located.
I think the meaning of "Extraordinary circumstance" would be any threat to national security that actually shows up on the president's radar screen.
ReplyDeleteSo, in the case that the President should actually take notice of something, under those "heightened circumstances" he could shoot you?
ReplyDelete(This is a Grosse Pointe Blank reference, for those of you who may not have seen that excellent movie.)
Bingo!
ReplyDeleteBut only if you're a conservative. This administration has rigorous standards for threat assessment.
Ron Wyden (D-Oregon), from a February 5 statement and I just heard him on C-Span repeat this on the floor of the Senate as part of the filibuster of Brennan:
ReplyDeleteEvery American has the right to know when their government believes that it is allowed to kill them.
Ouch.
So this came up on xbradtc's blog. And I gave a long response over there. I'll summarize here:
ReplyDeleteI think any order to shoot down a passenger plane that has been hijacked is an illegal order. I know you believe those lives to be acceptable collateral damage under the Doctrine of Double Effect. I disagree on the basis that taking those lives represents an active evil in the pursuit of stopping a potential greater evil. I know that shooting down that plane will kill the innocent passengers on board. I DON'T know that failing to do so will kill more innocents on the ground. It may. It might even kill VASTLY more on the ground. But I cannot know, and taking a definite evil act to prevent a potential evil is morally unacceptable to me.
I loved Grosse Pointe Blank. And Cass nailed it. We'll all be fine as long as we engage in national threats after the President's bedtime or while he's on the golf course.
ReplyDeleteMike:
ReplyDeleteThere's a two-pronged test for the DDE. The first test is that your action has to be proportionate, and the second is that your action must be discriminate. Now, post-9/11, we have some idea of proportionality: as you say, we don't know what the hijackers will do, but we know what they could do, and we aren't obligated to condition our response on the presumed goodwill of people who have already hijacked an airplane.
So proportionality doesn't seem to me to be a problem. The number of innocent people we're endangering by shooting down the plane is far smaller than the number endangered by not shooting it down.
That leaves the second test (which is where your objection comes in). Is the action discriminate? In order for that to be true, the evil effect of your action cannot be either your end or the means to your end. It has to be accidental to your end and your means.
That sounds complicated, but there's a simple test for whether the condition has been met. Imagine that, by miracle, the harm you expect does not occur. Would you still be happy with the result? If the answer is yes, then your action is discriminate. If the answer is "no," either the harm was what you really wanted, or it was genuinely necessary to your purpose.
So if we shot down the plane and, by miracle, none of the innocent passengers were killed, would we be happy with the result? Yes, we'd be thrilled with the result.
Therefore, I think DDE is fully satisfied by this case.
Now, you're raising an issue about a potential versus an actual harm. But remember that a potential is (as Aristotle says) a first actuality. That is, it's an actual potential. The hijackers have created an actual potential to murder thousands. If I take a step to remove that actual potential, I am removing an actual harm: it's an actual potential.
Where I think your principle would be right is where there isn't already a first actuality (that is, a real potential) of mass murder. So it wouldn't be right to shoot down a plane because it might get hijacked, say. That would be wrong on your terms, because we don't even know if there's a potential for it to be hijacked (highly likely there is not, since most likely none of the passengers are hijackers).
So proportionality doesn't seem to me to be a problem. The number of innocent people we're endangering by shooting down the plane is far smaller than the number endangered by not shooting it down.
ReplyDeleteIn a pre-9/11 world, where the SOP was to comply with every order the terrorists give (because that would lead to the safe return of the hostages) that would be the only two outcomes possible. We shoot down the plane, or the terrorists crash it into a building. But that world is gone, and has been since Flight 93. Now, the days of a plane full of passengers meekly accepting the takeover of the plane are over. Now, all passengers know it's a fight to the death. Either they re-take the plane, or the hijackers will kill them all. So your DDE has a new variable to contend with. Do you kill all the passengers in the plane before giving them a chance to fight for their own lives? They may win, they might lose, but if you shoot down the plane, you've stripped them of the ability to retake the plane AND their lives.
And in any event, the plane shootdown rule is NOT what Sen Paul was concerned about, nor is it what Holder stated the President could do. The question posed is "does the rationalization that the DoJ submitted to Congress for the targeted killings of US Citizens imply that the President has the authority to do so within the United States. And Holder's response was basically, "yes". All the hemming and hawing about "we are not now doing so" and "we have no intention to" is meaningless. Holder states that the President has the authority, under the Constitution and applicable laws to exceute a US Citizen on US soil in order to prevent an attack like Pearl Harbor or 9/11. Not stop it in progress (which is what shooting down an airliner represents), not killing a perp who has a gun trained on a hostage; but killing someone without trial, without oversight, without any outside justification whatsoever... just on the President's authority. And all the President would need to do is claim it was in order to prevent an attack like 9/11 or Pearl Harbor.
Now, let me be clear... I do not actually suspect we're about to be droned to death by this Administration. I'm no conspiracy nut. But, I AM furious that a member of the Administration has the GALL to claim that any President has the authority to execute a US Citizen anywhere in the world with no need to provide evidence, inform Congress, seek judicial approval, or any other form of oversight. THAT is what the DoJ document says the President (and not just THIS President, but ANY President) has the power to do.
I think I'm with Mike. Though I'm far from sure I'd have the courage of my convictions in an emergency, I don't want the President to have the power to use the military as his enforcement arm without Congressional or judicial oversight. It's a power that has a long, sad history. The emergency had better be one that immediately threatens our entire system of Constitutional government, or the cure will prove worse than the disease.
ReplyDeleteRe shooting down the captured plane: in those ethical dilemmas involving blowing up the rail car that's headed for the crowd, my preference always is for the choice that allows people to sacrifice themselves rather than others.
Well, Mike, you said you wanted to contest the plane shooting down -- which I think is fully justified, as described above. If you want to talk about what Paul is concerned about, and not Holder's dodge to 9/11 or Pearl Harbor, I think I agree with you.
ReplyDeleteThere's no new variable for the DDE, because the DDE only deals with the question of when it is permissible for me to do something that isn't in itself wrong, but which will have an evil effect I don't intend. Stopping the hijackers from crashing the plane into something is not an impermissible action, and the evils (both the deaths of the innocents, and the possible prevention of their heroism) are unintended, and indeed accidental to the action. So long as the proportionality criteria is met, additional evils that also meet the discrimination test do not change the permissability of the action.
In other words, you may do it, though you might choose not to do it.
On the other hand, the very first action that is the means to my end (or in fact my end) makes the whole thing forbidden.
Tex:
There are several significant differences to the rail-car example. For one thing, you can calculate the costs pretty precisely, because a rail-car can only go where the rails go. (This is why utilitarians like to concoct examples of this sort, because it plays well with their kind of logic. Real life almost never offers that level of predictability).
The other one is that the rail car is usually said to be out of control, so that blowing it up is the only option. There isn't a chance of the passengers stopping it.
Of course, that's also a concoction: in general we don't happen to have ready weapons for destroying a rail car. But there's no chance that someone might choose to sacrifice himself, either, since the rail car riders presumably can't blow themselves up.
It's a hard enough question that I don't want the Executive Branch to have sole control of it -- which is not to say I wouldn't forgive them for skipping the rules if they had only minutes to prevent a nuclear blast or Martian invasion. Then I would expect the President to take responsibility for personally overriding Constitutional protections, and to submit himself not only to a full investigation but a vote of no confidence. What are the odds, right?
ReplyDeleteIf I didn't believe in utilitarian trade-offs in some circumstances, I'd never support any war. I just find the drone-attack-on-potential-enemies-on-American-soil hypothetical a little too broad. I wouldn't be comfortable giving that unrestrained executive power to an administration even if I trusted it. Considering the issue in the context of the current bunch of boobs and liars merely heightens the tension between the conflicting social priorities. These guys talk openly about how the Constitution is flawed because it doesn't give them enough power.
Well, Mike, you said you wanted to contest the plane shooting down -- which I think is fully justified, as described above. If you want to talk about what Paul is concerned about, and not Holder's dodge to 9/11 or Pearl Harbor, I think I agree with you.
ReplyDeleteQuite right, please don't think I'm trying to move the goalposts on you. I caught myself in that very same trap last night on Brad's blog. It's just that my brain keeps pulling me in different directions.
With regards to (strictly) the shooting down of the plane, I liken it to a version of the railcar exercise that I am familiar with. I.e. a railcar full of passengers is hurtling towards a bridge that is out. You are standing at the switch. You can divert the car onto another track, but lying on that track is an innocent baby. You don't have time to take the baby off the track, else you cannot throw the switch. No one else is there to help. What do you do?
I like this philosophical argument, because there is no "correct" answer. Both are right, and both are wrong. And in which answer is chosen we see into the philosophy of the chooser. I fall on not switching the track, and thus saving the baby (and condemning the car full of passengers. Because throwing the switch is an active action that kills an innocent. Yes, I am still wrong for choosing not to save the car of passengers, but I'm taking no active action to harm the baby. Thus my assertion that I don't shoot down the plane.
I DO think it makes a difference now knowing that the passengers are likely fighting to save the plane (and thus themselves) in the manner of Flight 93. In a world where the passengers were not prepared or knowing that they were going to die even if they complied with the terrorist's instructions, I think your DDE is much more justified. Literally, the only possibilities in such a decision are that the passengers will die either way, but one action will potentially save others. My answer to the dilemma is not different, mind you. I still would err on the side of not taking the active action. But the decision WOULD be harder for me.
Now, knowing the passengers are fighting inside the plane, that makes the decision even firmer for me NOT to shoot down the plane. That's where I was going with that particular argument. I then put my foot in it by switching over (without making it clear what I was doing) to pointing out why Holder was still so very wrong in his opinion. And for that, I do apologize.
Well, let me point out again that the DDE is about permissibility. You aren't obligated to shoot down the plane by the DDE. All it does is confirms that it is a morally acceptable option -- it is something that you could do.
ReplyDeleteSo your considerations about whether or not the people on the plane would/wouldn't/might/actually-already-are fighting would be something you could factor into the decision to shoot or not to shoot. You could also take into account the apparent immanence of the harm, and factors like probable targets (e.g., are they going to strike a building full of innocent people such as a skyscraper in New York, or are they after a military target whose members might be considered to have volunteered to assume risks to themselves to protect innocent life such as that on the plane?).
There's still plenty of room for all those calculations in the shoot/no-shoot decision. What DDE tells you is that if you decide you have to shoot, you are permitted to shoot. The evil that is going to occur is accidental to your purpose.
Now, I'd like to point out that your 'baby on the track' case is still significantly different from the case we're considering. The question can be phrased, "What would make you morally responsible?"
ReplyDeleteYou're arguing that, in this case, if you choose to kill the baby you are morally responsible because you're making an actual choice and taking an action. If you do nothing, you're not morally responsible for the harm because it happened for reasons not related to you.
In the 9/11 case, however, the person making the call doesn't have the option of not being morally responsible. As President or as a military officer, he will have taken an oath making himself morally responsible for the protection and defense of the Constitution. Insofar as stopping 9/11-style attacks is relevant to keeping the Constitutional order together, as President (or the officer on the scene) you're already bound to moral responsibility. There is no option such that by doing nothing you escape responsibility.
Actually, I'm not saying that you escape responsibility by taking no action. Taking no action is actually an action in and of itself. But I assert that less moral harm comes from a failure to take a life though such inaction than through the positive action that takes a life (or lives). Moral responsibility is escaped in neither choice. By standing at that switch you are morally responsible for your actions (or indeed, lack thereof).
ReplyDeleteAs I said, however, I particularly like the example of the train tracks because there actually IS no right choice. Nor is there a wrong choice. There is only insight into the values of those who weigh the options.
However, I will argue that the shooting down of the airliner strikes me as the exact same set of bad options. Morally, both options are poor. As you said, the choice on railroad tracks is more straightforward, since there's only the one option to how the car may travel. Planes can travel any number of directions, and even if a target for the hijackers is known (through communication intercept perhaps) that's hardly a guarantee that they'll hit their target. Thus, while you may consider it an easy choice because the President and officers hold an oath to defend the Constitution, I would argue that an order to fire upon a passenger jet can be construed as an illegal order. Even if it has been hijacked. Morally, it's still your responsibility, but I think that a case can be made to refuse such an order.
I will argue that the shooting down of the airliner strikes me as the exact same set of bad options.
ReplyDeleteI think there's a question of sequence in a larger picture that matters here. Before 9/11 there had been lots of aircraft hijackings, but very few actual deaths from them. In those circumstances, an order to shoot down hijacked aircraft to prevent some greater potential harm would have been wrong--that potential was both unknown and unlikely. Until 9/11, a hijacked airplane had never been, itself, used as a weapon. Until 9/11, the deaths of the passengers had never been used as a weapon.
With the first hijacked airplane impact on the Tower on 9/11, all that changed. Hijacked aircraft, the deaths of passengers--and of everyone in the buildings (even stipulating that the terrorists didn't expect to bring down the entire building)--now became weapons of mass destruction--yes, the aircraft passengers' deaths, also. With the second hijacked aircraft's impact, the new rules and costs became confirmed.
An order to shoot down Flight 93 now is a choice between the passengers dying at government hands or dying along with hundreds of others in the target at the terrorists' hands. I don't think there was any question that 93's passengers were already dead, the triggers just hadn't been pulled yet.
The railroad puzzle differs critically in this regard. Neither potential victim sets were necessarily dead, just not having died yet. One set could live, depending on the switchman's choice.
Eric Hines
An order to shoot down Flight 93 now is a choice between the passengers dying at government hands or dying along with hundreds of others in the target at the terrorists' hands. I don't think there was any question that 93's passengers were already dead, the triggers just hadn't been pulled yet.
ReplyDeleteBut see, that very set of circumstances proves that the order to shoot down Flight 93 would have been unjust. Because the passengers DID fight back once they were aware of the situation, and they DID prevent the plane from striking another occupied building. Sadly it cost them their lives, but there was no guarantee that they WERE going to die once they made the decision to take back the plane. They had a chance of success. To shoot down Flight 93 (in hindsight, of course) would have saved no lives. It would, however, have put blood on the hands of an Air Force pilot. Now, I'm NOT saying we should hold that hypothetical officer culpable if he DID shoot down the flight. I'm saying I would (again, theoretically) found the order to fire on a passenger aircraft to be an illegal order and refused.
But your point is really excellent Eric. Prior to the first tower being struck, DDE would have called a shoot down unjustified. But it was the very history and experience with hijackings that both made such a shoot down unjustified AND let the attacks of 9/11 happen. And as you say, after the second and third plane hit, all the rules were different, both with regard to the DDE AND to how passengers would react (and in my view, the latter change has a cascade effect and changes the morality of a shoot down again).
"If antiterror efforts have the potential of leading to curtailments of civil liberties, it isn't because the U.S. treats the threat as part of a war but because it doesn't. The pretense of treating terrorists like domestic criminals has the potential of making it easier to treat domestic criminals like terrorists." - James Taranto
ReplyDeletehttp://www.nationalreview.com/corner/342335/holder-drones-and-due-process-john-yoo
ReplyDelete"If the federal government can use military force, such as troops or helicopters to stop those kinds of [foreign invasion] attacks, surely it can use drones. But where Holder and this administration are causing fear is because, if they believe the use of drones now, abroad, meet law-enforcement standards, then they believe they could use drones in similar situations domestically to enforce the laws, not to respond to attack."
...the order to shoot down Flight 93 would have been unjust. Because the passengers DID fight back....
ReplyDeleteHere I'll assume a measure of capability by the passengers: assuming they'd won the struggle in a more practical way, I'll assume they'd have had the capability to communicate that to the FAA (with--from personal experience--a very short chain to the pilot en route to the shoot).
In this circumstance, other than a very narrow window between achieving success and communicating that success, the shoot down would have been justified: fight and fail, and the hijacked airplane and passengers continue on their weaponized path. Fight and succeed to the extent they did, and the shoot down is preempted by the crash that actually occurred.
Eric Hines