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Military Drone Attacks Are Not 'Hostile' 892

Posted by Soulskill
from the napalm-hugs-and-frag-grenade-kisses dept.
sanzibar writes "Not satisfied with the legal conclusion of the DOJ, the Obama administration found other in-house lawyers willing to declare a bomb dropped from a drone is not 'hostile'. The strange conclusion has big implications in determining the President's compliance with the law. If drone strikes are in fact hostile and the Libyan campaign continues past Sunday, he may very well be breaking the law."
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Military Drone Attacks Are Not 'Hostile'

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  • by Anonymous Coward on Saturday June 18, 2011 @08:25PM (#36487838)

    "You know, you can call a shovel an ice-cream machine, but it's still a shovel, Mom and Dad"

    • Legally (Score:5, Interesting)

      by Oxford_Comma_Lover (1679530) on Saturday June 18, 2011 @09:57PM (#36488374)

      Harold Koh is one of the big lawyers supporting the air strikes for the Administration. He condemns Republicans for going to war without authorization when in academia, but was brought into the Administration with President Obama, and since has changed his tune a bit. It should be interesting to see (1) if a Republican president keeps him on whenever one next gets elected and (2) whether he will return to academia and try to walk back his current position.

      There are some interesting theories as to whether the air strikes are legal or not. The question isn't whether they are hostile, it's whether they are "hostile" as that word is used in a particular context--probably the war powers resolution, IIRC. But there are some interesting end-runs you could potentially do around that, such as through the UN--maybe Congress approved the UN charter, which validates the security council resolution authorizing the action, for example. That shouldn't work--there are limits that the Supreme Court puts on how far Congress can delegate its powers, and there's no way they can delegate the declaration of war, particularly if they do so ambiguously.

      Ultimately, if the House wants to stop it, they can always cut the funding.

      On the upside, $10M a day is going mostly to our military industrial complex, which pumps some money into the economy. Also on the upside, getting rid of tyrants.

      Still, I get the image of a big freeciv display in the situation room...

      • by Marrow (195242) on Sunday June 19, 2011 @12:50AM (#36489244)

        They are firing shells, missiles, burning fuel, and consuming resources including time and attention. Once, shells, missiles strike their target, they are gone for good: burned up. The fuel is burned up. The time is burned up. None of these things can then benefit us or anyone else in the future.
        If we spend money on tools that we need to make more things in the future, then spending the money may help our economy. But only if the amount of money we can draw from those added resources exceeds what we spent.
        Every time the US declares war (or fails to declare it), its really a war against its own people. Its an excuse to funnel billions of dollars down a rat-hole that has no oversight, and no end in sight. Can you think of another country just before WW1 and WW2 that was addicted to war? Look what happened to them.
        Our leaders think they can gamble at any stakes and take all the winnings for themselves. And if they lose, they can parachute out to some haven and leave the people with the crushing debt of their mistakes.

        • Re: (Score:3, Insightful)

          by Anonymous Coward

          They are firing shells, missiles, burning fuel, and consuming resources including time and attention. Once, shells, missiles strike their target, they are gone for good: burned up. The fuel is burned up. The time is burned up. None of these things can then benefit us or anyone else in the future.
          If we spend money on tools that we need to make more things in the future, then spending the money may help our economy. But only if the amount of money we can draw from those added resources exceeds what we spent.

          This is a good argument, but it is not true. Munitions have a shelf-life. When they reach the end of their shelf life they need to be disposed of safely. Doing so is about ten times as expensive outside a war than inside one. For some reason, nobody cares about the environment in a war.

          I have no idea if the munitions used are actually end-of-life.

    • by couchslug (175151) on Sunday June 19, 2011 @02:30AM (#36489550)

      Given this logic, rape is merely "assault with a friendly weapon".

  • by WrongSizeGlass (838941) on Saturday June 18, 2011 @08:26PM (#36487840)
    Pullleeez! If one was used on the US we would absolutely consider it a hostile act.
    • by jhoegl (638955) on Saturday June 18, 2011 @08:42PM (#36487946)
      Yeah, doesnt that basically give an open window to terrorists and Iran?
      WTF!
      • Re: (Score:3, Insightful)

        by Anonymous Coward

        No, it doesn't. As per usual it just gives the US permission to continue bombing a country and indiscriminately killing as they please. I guarantee you that if the situation were reversed and a "non-hostile" drone attack was conducted on the Pentagon or the White House, Obama would nuke the countries involved and then beat any survivors left to death with his Nobel Peace Prize.

        And you elected him. Not that your votes matter any more, but hey, maybe it's time to start pointing the finger at the asshole that

        • by Cinder6 (894572) on Saturday June 18, 2011 @09:13PM (#36488130)

          Don't blame me, I voted for Kodos!

        • by Wyatt Earp (1029) on Saturday June 18, 2011 @10:49PM (#36488626)

          Except the US and NATO don't "indiscriminately" kill as they please, they put a ton of planning into every strike and try to conduct operations is with a minimal amount of civilian death and injuries.

          After all, the US and UK have been using inert bombs on radar and light structures for over 12 years, because an explosive would do too much civilian damage.

          Those ignorant of military history think all modern bombing and air strikes look like Sir Harris planned them and that because a B-52 can carry 35 tons of bombs, every time a B-52 is mentioned it must have dropped 35 tons of bombs.
          http://en.wikipedia.org/wiki/Carpet_bombing [wikipedia.org]

          But the vast majority of airstrikes and bombings by the US and NATO since 1992 have been with smart weapons, guided missiles or single small (500 pound or 1000 pound) bombs

          http://en.wikipedia.org/wiki/Precision_guided_munition [wikipedia.org]

          In Iraq/Kuwait in 1991 8.8% of air strikes were with PGMs, in the Kosovo War the number is up to 90%, in 2001 Afghanistan it drops back to 55%

          In Libya it looks like about 75-80% PGM, and of course anything from a Predator or Reaper drone is going to be a PGM, either a Hellfire (Laser or Millimeter wave radar) or a small JDAM (GPS and/or laser)

          http://theamericanaudacity.blogspot.com/2011/03/canadas-six-cf-18-hornets-deployed-to.html [blogspot.com]
          http://www.washingtonpost.com/world/nato-runs-short-on-some-munitions-in-libya/2011/04/15/AF3O7ElD_story.html?hpid=z1 [washingtonpost.com]
          http://jha.ac/articles/a110.htm [jha.ac]
          http://en.wikipedia.org/wiki/Precision_guided_munition [wikipedia.org]

      • by guspasho (941623) on Saturday June 18, 2011 @09:47PM (#36488318)

        It wouldn't be the first time that the US government claims the right to do things it holds are illegal for everyone else. We torture, we "cyberattack", we proliferate nuclear weapons and WMDs, we attack other countries and wage wars of choice, we violate other countries' sovereignty, all things which we prosecute and punish others for through international courts and extraditions, or would hold to be acts of war if done to us, even while we do the same to the rest of the world.

        And we slaughter innocent civilians from those drones almost on a daily basis, and treat it as if it was nothing. The terrorists killed around 3000 innocents, while we've killed something like 300,000, if not far more. To a far greater extent than al Qaeda, we are the terrorists.

    • by Anonymous Coward on Saturday June 18, 2011 @08:46PM (#36487976)

      Furthermore I'd say the US would consider an attack on the drone a hostile act.

    • Re: (Score:3, Interesting)

      by Anonymous Coward

      The administration's argument is that the meaning of "hostilities" under the law is any engagement that puts US troops at risk from enemy action. They say that the law was meant to protect US troops from a capricious executive branch that needlessly subjects them to danger. Since soldiers are not endangered by executing drone strikes, that would make the drone strikes not "hostilities."

      If Congress doesn't like it, they can very easily put an end to it by clarifying the law. (At least, they can do that more

    • by taxman_10m (41083) on Saturday June 18, 2011 @08:49PM (#36487994)

      From Wikipedia:
      http://en.wikipedia.org/wiki/Unmanned_aerial_vehicle#Historical_events_involving_UAVs [wikipedia.org]

      In October 2002, a few days before the U.S. Senate vote on the Authorization for Use of Military Force Against Iraq Resolution, about 75 senators were told in closed session that Saddam Hussein had the means of delivering biological and chemical weapons of mass destruction by UAV drones that could be launched from ships off the Atlantic coast to attack U.S. eastern seaboard cities. Colin Powell suggested in his presentation to the United Nations that they had been transported out of Iraq and could be launched against the U.S.[78] It was later revealed that Iraq's UAV fleet consisted of only a few outdated Czech training drones.[79] At the time, there was a vigorous dispute within the intelligence community as to whether CIA's conclusions about Iraqi UAVs were accurate. The U.S. Air Force agency most familiar with UAVs denied outright that Iraq possessed any offensive UAV capability.[80]

    • by innerweb (721995) on Saturday June 18, 2011 @10:23PM (#36488516)

      Another politician, another lie. I could start quoting Bush, Bush, Clinton, Reagan, Ford, Nixon, ...

      They all made statements with the same stupidity as this. This is about law, not truth. If he can wrangle it that in *legal* terms, it is not hostile, then legally,it is not. Which is all he needs. As far as what it means in english (not legalsleaze), yeah, its as hostile as a punch in the nose. You have to remember for a politicians to get to the top, they normally have to get very good at legal sleaze. If they are not, they are not going to be able to support the people who pave their way with gold.

    • Re: (Score:3, Funny)

      by Luckyo (1726890)

      But all that USA wants is some LOVE! Sure, it's one sided, abusive, anal rape kind of love.

      But it's still LOVE!

    • by hey! (33014) on Sunday June 19, 2011 @09:46AM (#36490722) Homepage Journal

      Well, our having this discussion is a bit like non-geeks discussing computer topics. They use relevant terms, but not necessarily with their correct meaning. "Real-time" is a term whose misuse often makes me cringe.

      We can't even understand what this argument is about without at least looking at the legal briefs. Clearly the administration isn't claiming that dropping bombs from a drone is a benign or friendly act; they're making the argument that it does not fall into a class of actions defined by some specific law (in this case the War Powers Act I think), and referred to by the shorthand "hostilities" in the text of the law. If the law in question says something like, "A 'hostile action' for the purposes of this act is one in which (a) (b) or (c)," then what we're talking about is whether the Libyan operation qualifies under those terms, regardless of whether it is "hostile" according to the common definition of the word.

      I support the Libyan operation, because it's a rare opportunity to take a state sponsor of terrorism out of the picture at relatively low cost. But I think the operation should be authorized by Congress first. That won't happen because the current congress is all too willing to play with critical national interests for short term electoral advantage. At any other time this would be a no-brainer, but for now it's a non-starter. For that reason I would not be surprised if the Administration is bending the law past the point of breaking in order to get the job done. But it is quite possible that a reasonable argument could be made that an operation in which US personnel aren't placed in harm's way *might* not fall under the definition of "hostilities" laid out in certain laws.

      To know whether the position taken is as ridiculous as it sounds, we'd have to see the actual arguments being made, as opposed to some dumbed down, hand-waving media account.

  • by Anonymous Coward on Saturday June 18, 2011 @08:28PM (#36487846)

    This is even worse than claiming that waterboarding isn't torture. WTF? I can't believe that I donated money to this douche in 2008.

    • by Max Littlemore (1001285) on Saturday June 18, 2011 @09:02PM (#36488090)

      This just demonstrates that the two parties are just parts of the same machine. I would never donate to either side.

      If it's any consolation, here in Oz we switched from right to left (well far right to centre-right) a bit before you guys across the Pacific and it hasn't turned out much better for us.

    • by demonlapin (527802) on Saturday June 18, 2011 @09:17PM (#36488144) Homepage Journal
      You (and a lot of other people) gave money to a guy whose political career consisted of being a first-term US Senator after a couple of years in the state legislature. What did you expect?

      Let's see if any Democratic group has the stones to mount a primary challenge. I'm not really impressed by any of the Republican candidates. See if you can get Hillary to give it another go.
      • by 0123456 (636235) on Saturday June 18, 2011 @10:27PM (#36488536)

        Let's see if any Democratic group has the stones to mount a primary challenge. I'm not really impressed by any of the Republican candidates. See if you can get Hillary to give it another go.

        Hilary Clinton vs Sarah Palin at the next election would be hilarious and an unbeatable demonstration that America has totally jumped the shark.

        • Re: (Score:3, Insightful)

          by julesh (229690)

          Hilary Clinton vs Sarah Palin at the next election would be hilarious and an unbeatable demonstration that America has totally jumped the shark.

          I think you guys did that when you elected Ronald Reagan. I mean, WTF?

    • by Goboxer (1821502)
      Yeah, he has lost my re-vote. I need a president that can make good choices that will benefit the

      people of America. Not the government and corporations.

  • "Not hostile" (Score:5, Insightful)

    by girlintraining (1395911) on Saturday June 18, 2011 @08:28PM (#36487850)
    The use of explosives by anyone on this forum would be considered "hostile" and would land them in jail. They can label it whatever they want, but you drop a bomb somewhere, you better expect a "hostile" reply.
    • by decora (1710862) on Saturday June 18, 2011 @08:50PM (#36488008) Journal

      not only does he have some awesome lawyers, he is an awesome lawyer.

      jim - "dude i just blew up starbucks"

      laywer obama -"its OK! not hostile!"

      jim - "but like, eleven people died"

      lawyer obama -"chill. did i ever tell you about that time i was bombing libya? well, starbucks is a little bit like libya."

    • Re:"Not hostile" (Score:5, Interesting)

      by shutdown -p now (807394) on Saturday June 18, 2011 @11:38PM (#36488850) Journal

      It's the natural continuation of the long-existing slippery slope. First they stopped the use of the term "war" (to remind, the US has last officially used the term "war" in 1942 - neither Korea nor Vietnam nor Afghanistan nor Iraq were "wars"). The next logical step is to excise any mention of violence whatsoever. Conveniently, this also removes the need to authorize it.

      In the long term, though, I suspect that this moment - and not all the other Obama's blunders - will end up in history as the marking moment of his presidency. Even Bush asked (and received) authorization to use force from the Congress - albeit with a lot of deception and outright lies. Obama pretty much says he doesn't care for one, and it's his way or the highway.

      Frankly, waging war in explicit denial of the parliament would be grounds for immediate impeachment in pretty much any other country. How does that normally work in US?

  • by metacell (523607) on Saturday June 18, 2011 @08:28PM (#36487852)

    ... a federal court just ruled that a gun fired with your gloves on is not "lethal", finally exonerating O.J. Simpson from the murder he was found guilty of in a civil trial.

  • It doesn't matter. (Score:5, Insightful)

    by Jane Q. Public (1010737) on Saturday June 18, 2011 @08:30PM (#36487860)
    It is a coercive, destructive, military act, 100% consistent with what our Founding Fathers meant when they wrote "war". Therefore I don't give a crap whether somebody re-defines it as "hostile" or "friendly" or a "love tap". It's illegal as hell.
  • by AlienIntelligence (1184493) on Saturday June 18, 2011 @08:32PM (#36487876)

    Enough (of the right) lawyers and you get to modify reality.

    That's pretty neat.

    "No, dropping a cinder block thru your windshield was NOT a hostile act,
    just clumsy, oopsie!"

    In all seriousness though, he's exploiting a loophole
    it seems, because the law was written in 1973, before
    drones existed.

    "It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict. Those disagreements are ordinary and healthy," he added.

    -AI

  • by cgenman (325138) on Saturday June 18, 2011 @08:35PM (#36487914) Homepage

    At some point we're going to get another irrationally warmongering hawk president. Can we get an iron-clad precedent set that in matters that matter the president isn't above the law, and can't just run around making stuff up?

    It's too bad that would have to happen with this president and not the previous one, who happened to be Houdini of inventing BS from thin air. Free-speech zones. WMD. Blocking Scientific Papers. Etc. But we can't just agree to ignore the law for presidents we like.

    • by ShakaUVM (157947)

      >>It's too bad that would have to happen with this president and not the previous one, who happened to be Houdini of inventing BS from thin air. Free-speech zones. WMD. Blocking Scientific Papers.

      The free speech zones really came to pre-eminence at the 1999 WTO talks, not the 2004 Democratic convention. (http://en.wikipedia.org/wiki/Free_speech_zone) I know that "blaming Clinton" isn't nearly as popular as trying to pin everything on GWB, but it's not good to live in fact-free zone, either.

      He didn't i

    • by guspasho (941623) on Saturday June 18, 2011 @09:35PM (#36488250)

      "But we can't just agree to ignore the law for presidents we like."

      I voted for Obama because he said he would end the presidential lawlessness, end the wars, end the abuse of "state secrets" to block justice through the courts, close Guantanamo Bay and end the 4th and 5th Amendment violations that it represented, and protect whistleblowers. But since he was elected he has done the exact opposite, attempting to assassinate US citizens simply by declaring them enemies of the state with no process whatsoever, escalating the wars and even claiming the power to start more wars without consulting Congress, increased the abuse of state secrets to even prevent cases from being heard, refused to do anything about Guantanamo Bay and even opened up the greater black hole at Bagram, prosecuting whistleblowers to a far greater extent than any previous president ever did, and trying to prosecute Wikileaks under the Espionage Act. All of this is the exact opposite of what he said he would do when we elected him.

      The only power citizens have to punish presidential lawlessness is to refuse to reelect them, and when possible, elect the candidate who says they will undo the lawless behavior. And when the country did that, the guy we elected broke every one of his election promises and proved to be much, much worse. And Congress, as well as both parties, have proven to be enthusiastic supporters of all of this. Senator Russ Feingold, the only one who really cared about the rule of law, lost reelection last year. When both parties support government lawlessness, in Congress and the White House, when we elect those who promise to stop it and they turn around and expand upon that lawlessness instead, what option do we have?

      The precedent, I'm afraid, has already been set. Nobody who matters supports the rule of law any more; not Congress, and not the courts, nor the mass media, who are all too deferential to presidential power to want to do anything about it, not the parties who both want that power for themselves when they win the White House, and certainly not the executive who reaps the benefits. That sort of unanimity among the branches of government is what establishes precedent for a very long time, generations if not indefinitely.

  • Other than the size of the delivered bang?

    • Other than the size of the delivered bang?

      They'll now be classified as "weapons of mass non-hostility".

  • by commandermonkey (1667879) on Saturday June 18, 2011 @08:51PM (#36488018)
    I am at a loss for words. That has to be one of the stupidest thoughts I have ever read.

    I can't wait until the first poor defendant goes before a judge as says "If crack was in fact a drug" then of course id be a drug dealer.

    It makes me sad to begin thinking that the set of birthers who think Obama never went to law school may be on to something.
    • It makes me sad to begin thinking that the set of birthers who think Obama never went to law school may be on to something.

      No, with that kind of reasoning we are sure beyond any doubts that he went.

  • Would the republicans actually vote against war in Libya? Why would they do that?

    • Re: (Score:3, Insightful)

      by artor3 (1344997)

      To fuck over Obama, same reason they do everything. They demanded that he intervene in Libya specifically so that they could use it against him. If he had refused to intervene, they would have used that against him too. Their one and only goal is to destroy him. They've come out and said so on multiple occasions. People just tend to assume it's a joke, or something.

  • by Mark Atwood (19301) on Saturday June 18, 2011 @08:53PM (#36488034) Homepage

    How's that Hope & Change working out for y'all?

  • by 93 Escort Wagon (326346) on Saturday June 18, 2011 @08:59PM (#36488078)

    While this particular episode seems bizarre in isolation, it's just part of a larger battle (no pun intended) that has been happening for a long time now - the battle between the legislative branch and the Executive branch regarding ultimate control over the military. It is up to Congress to declare war - however presidents, as the head of the US armed forces, have the right to deploy troops into hostile situations without declaring war. Congress has voted that these deployments can only last a certain number of days before they must be declared an act of war (or, more accurately, before Congress must approve the continuation of the deployment). No president has been willing to recognize that congressional act as valid.

    It doesn't matter whether Congress and the Presidency are of opposite parties or of the same party - in this situation the two branches have consistently disagreed.

  • Nothin New Here (Score:3, Interesting)

    by arthurpaliden (939626) on Saturday June 18, 2011 @09:03PM (#36488092)
    This is not surprising in the least. The United States government once went into a fisheries dispute with Canada claiming the scallops were a migratory species of marine life because they could propel themselves using water squirts.
  • by macraig (621737) <[mark.a.craig] [at] [gmail.com]> on Saturday June 18, 2011 @09:23PM (#36488178)

    This demonstrates how Obama's presidential behavior is in reality not significantly better than the behavior of Bush. He talked a very different game, but in practice he winds up making the same sort of unethical choices as Bush. Political parties are irrelevant when they both breed and foster this same bad behavior.

  • by JDAustin (468180) on Saturday June 18, 2011 @09:27PM (#36488202)

    That's what liberals consider the Constitution. If they are willing to bend the Constitution on matters such as interstate commerce or or various amendments, you knew it was only a matter of time when they redefined what a war was (ie its only a war when we say its a war).

    • by the eric conspiracy (20178) on Saturday June 18, 2011 @10:39PM (#36488584)

      Oh horseshit. Neocons like John Yoo have long argued that anything a President does with respect to war is constitutional. You cannot just turn around and say that reasoning doesn't apply to Obama.

      You can't apply strict constructionalism only when a Democrat is in the White House. It has to apply equally to all Presidents. Like Reagan and his little secret wars.

      If you really want strict constructionalism the War Powers Act is clearly unconstitutional because it delegates a power specifically assigned to Congress to the President. I know it's attractive to Congress to dodge any kind of hard issue like deciding to go to war, and then later hoist the President by the short hairs for public effect, but in absence of an Amendment that's the way it is. You can't end run the amendment process by passing a law.

      So you can't have it both ways. Either constructionalist and the Congress has to actually declare war, or wink wink nudge nudge and the President can send troops wherever and whenever. No one way when a Republican is in power and the other way when a Democrat is in power.

  • its here and now (Score:5, Insightful)

    by FudRucker (866063) on Saturday June 18, 2011 @09:54PM (#36488360)
    War is peace. Freedom is slavery. Ignorance is strength.
  • "My dear fellow, who will let you?"

    "That's not the point. The point is, who will stop me?"

    Who indeed? The law is, de facto, not what's on the statute books, it's what's enforced. With actual force.

  • precedent (Score:5, Interesting)

    by petsounds (593538) on Saturday June 18, 2011 @10:32PM (#36488554)

    While Obama should've gone back and gotten authorization from Congress to extend the mission in Libya, he acted properly initially, because otherwise there'd be a lot of blood on our hands (see: Bush Sr. in Iraq) as the resistance capital Benghazi was about to fall had we not intervened.

    Of course, as far as I know we never declared war on Pakistan either, but Congress has been happy to sign checks for drones to fire missiles inside Pakistan territory. Is this not also "putting US Armed Forces into hostilities"? And if you want to be technical, Congress has not passed a bill declaring war on anyone since World War II. It's all "authorization to use force", which is more of the kind of Orwellian terminology in use post-WWII, such as changing the Department of War to the Department of Defense.

    In my opinion, this is not "hostilities" in the sense of invading a country. We are in Libya at the request of the Libyan people to prevent a humanitarian disaster. Obama may have slipped up on the technicalities, but the technicalities are only being brought up now because of politics. The cause is a just one.

    • We are in Libya at the request of the Libyan people to prevent a humanitarian disaster.

      No, you're in Libya at the request of some of the Libyan people, namely those who support the rebel faction. In case you've missed all the news stories, Qaddafi has considerable support among the general population in western part of the countries - so much so that there were already cases where rebels tried to "liberate" some towns, and were chased out of them by armed locals.

      Even for those who aren't outright loyalists, I very much doubt that common folk being bombed in Tripoli right now have consented to

  • by LynnwoodRooster (966895) on Saturday June 18, 2011 @11:30PM (#36488812) Journal
    This President is 100% - after all, he's won a Nobel Peace Prize, how can he be wrong about what is hostile and what is not?
  • by drolli (522659) on Sunday June 19, 2011 @03:41AM (#36489726) Journal

    A bomb dropped from a drone is not hostile in the same way as water-boarding is not torture.

    I guess it must be a special reality bending field once you are the commander in chief of the military of a nation involved in non-war conflicts against hostile unlawful fighters and on humanitarian missions to protect civilians.

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