National Defense Resource Preparedness Executive Order and the NSA’s New Data Center

Flying under the radar of the NCAA tournament and all kinds of other stuff, Barack Obama recently signed an executive order about “National Defense Resource Preparedness” (NDRP).  More recently, a second one would’ve flown entirely under the radar if not for Wired Magazine, which details the massive new data center being built by the National Security Agency (NSA).  We’ll look at both briefly here.

Let’s start with the NSA center very quickly.  The Wired piece really does a great job of detailing the center, so I highly recommend you take the time to read it (or at least skim because it’s pretty long).  All I’d really add is that this is some scary stuff to me because the Obama administration also recently issued guidelines stating that the intelligence community could now store information on American citizens with no suspected ties to terrorism for up to five years.  Before, they had to destroy it immediately.  It makes me wonder what the over/under is on how long it’ll take the government to expand that five-year window and how big they’ll expand it.  That sounds like an attack on the 4^th Amendment to me. 

This is a textbook example of scope creep or the slippery slope.  We see this very often with the government and I have plenty of examples.  They’ll start off with a new or existing power (let’s leave aside the question of the legitimacy of the power) with a very narrow target or scope.  Over time, that target or scope just has a way of expanding well beyond what it started with.  In this case, we’re talking about spying programs that were initially focused on ‘threats with suspected or confirmed ties to terrorism’ and have since spread to everyone.  I suppose the government could now view everyone as a threat, which makes me wonder whatever happened to the concept of presumed innocent until proven guilty. 

And we move onto the NDRP.  I was at first inclined to dismiss the NDRP order because I figured it would simply be a bit of organizational reshuffling.  Seeing as how we now have a Department of Homeland Security (DHS), I was thinking it’d just be a matter of fitting them into the mix somehow.  Instead, DHS is now in charge.  I suppose we could say that DHS is now the “emergency czar”.  Sure, there’s a security element to pretty much any national emergency, even natural disasters, but I question the prudence of putting DHS in charge. 

We’ve had similar orders on file for ages that put the government in charge in times of “emergency”.  It makes sense to do that.  To a degree, it’s a logical extension of the concept of eminent domain, in which the government can claim, with fair compensation, property for development for the public good from a private party, usually for the development of something like power lines or roads/bridges.  Kelo v. New London, CT was a recent Supreme Court ruling on the matter that greatly expanded the government’s power here (erroneously, in my view, but that’s a whole other story).  Eminent domain and similar powers are necessary, but they have to be very narrowly-defined so as to prevent tyranny and abuse. 

Here’s the problem.  The government claims they can effectively seize anything they want without compensation.  Section 103, subsection c provides the authority to do so:

(c)  be prepared, in the event of a potential threat to the security of the United States, to take actions necessary to ensure the availability of adequate resources and production capability, including services and critical technology, for national defense requirements;

Section 103, subsection c is nothing new.  Let's be perfectly clear about that.  Obama didn't change anything from the 1994 version of the order.  However, just because it's been on the books for 18 years doesn't necessarily somehow make it ok.  This is still a dangerously broad power for the government to claim.  "[T]o take actions necessary," could, in my view, entail plunder without compensation.

Section 201,subsection a defines the resources in question.

Sec. 201.  Priorities and Allocations Authorities.  (a)  The authority of the President conferred by section 101 of the Act, 50 U.S.C. App. 2071, to require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense, is delegated to the following agency heads:

(1)  the Secretary of Agriculture with respect to food resources, food resource facilities, livestock resources, veterinary resources, plant health resources, and the domestic distribution of farm equipment and commercial fertilizer;

(2)  the Secretary of Energy with respect to all forms of energy;

(3)  the Secretary of Health and Human Services with respect to health resources;

(4)  the Secretary of Transportation with respect to all forms of civil transportation;

(5)  the Secretary of Defense with respect to water resources; and

(6)  the Secretary of Commerce with respect to all other materials, services, and facilities, including construction materials.

Anything that is, “[D]eemed necessary and appropriate to promote the national defense,” can be seized at will by the federal government.  This includes food, energy, medical supplies, transportation, water, and, “All other materials, services, and facilities.” (read: anything else).  Obama didn't create the wording, but by keeping it around, he's reaffirmed it and granted legitimacy to it.  Surely, I’m not the only one troubled by this.

The NSA center and the reaffirmation of the NDRP are both part of what I see as a troubling trend.  In upcoming posts, I’ll recap the list and then I’ll talk about where I see it going.

Links:

http://www.whitehouse.gov/the-press-office/2012/03/16/executive-order-national-defense-resources-preparedness

http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/all/1

UPDATE: 31 March 2012

I reworked a little bit of the post to clarify that the NDRP isn't much new.  I was sending a mixed and wrong message in this regard.  Some passages suggested it wasn't anything new, others suggested it was.  So, I cleaned it up to be consistent and correct that it's nothing new (still troubling, but nothing new).  Thanks, Shannon.

Assassinating US Citizens - Anwar al-Awlaki and Drone Attacks

As you know, the US recently killed Yemeni cleric Anwar al-Awlaki in a drone attack.  This actually happened a few months ago, but I didn’t comment on it at the time because I had trouble verifying whether al-Awlaki was indeed a citizen of the United States.  Attorney General Eric Holder confirmed this for me in his recent speech at Northwestern University, as well as provided a legal defense for the actions of the Obama administration.  It’s a quick read/listen and very informative.  I highly recommend it.  I’ve provided a link and the full text below.  So, let’s get started.

The citizenship question matters.  If al-Awlaki’s not a US citizen, then this isn’t much different than killing Osama bin Laden.  The other country would rightly be angry with the US for killing one of its citizens.  There is a school of thought that states that our legal protections apply not just to citizens of the USA, but noncitizens, too.  That’s a whole other matter and it’s out of scope here because al-Awlaki was indeed a US citizen.  I’m just acknowledging it for completeness. 

Since Awlaki was still a US citizen at the time of his death, then we’ve opened up a whole new can of worms because the US government just killed a US citizen without due process of law.  The Constitution, specifically the 5^th, 6^th, 8^th, and 14^th Amendments (and probably more, too), along with several individual sections, would be under attack in such a scenario.  Personally, I’m of the position that the government should not be allowed to assassinate US citizens.

Basically, Holder’s defense is that this was a lawful killing and court involvement is not necessary.  He outlined the criteria for what they consider a lawful kill, and without access to the specific information, I can’t really pick that apart.  What I can do is go after his extension of that logic.  Taking things one step further, he also claims that due process and judicial process are not equivalent.  Holder’s key statement below is, in my view, pure nonsense, and I’ll show you why.

 “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process.”

I suppose he’s technically correct that due process and judicial process are not the same.  However, I contend that judicial process is part of due process and therefore guaranteed by the Constitution.  Let’s lay out why. 

Article 3, Section 2 clearly states, “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”  The key phrase there is, “Except in Cases of Impeachment,” which is described elsewhere.

I take this to mean that every crime in the land must be tried by jury, which would also undercut the legitimacy of military commissions as a legal alternative to the courts, though this is a whole other matter (Holder does spend time discussing military trials during his speech, as well).  All it empowers Congress to do is decide where the trial by jury takes place.  Yes, that even means treason.  Article 3, Section 3 goes on to detail treason. 

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the

Person attainted.”

You can see that even treason, which sounds appropriate here, requires open court and a jury trial, which are part of judicial process.  The judge still runs the trial, but the power to decide punishment is taken away, as Congress can decide the punishment.  Congress still cannot try and convict for treason unless that’s the grounds for impeachment (that’s a nightmare scenario, isn’t it?).  Again, note the Executive Branch is only involved in this process to bring someone to trial and serve as the prosecution.  The Executive Branch is not empowered to ascertain guilt, determine a sentence, or carry out the sentence.  Said another way, the Executive Branch is not judge, jury, and executioner. 

I’d like to close out here by discussing briefly the process of how the government decides who to kill.  It’s is set up such that a lower-level decision board decides who to put on the list.  The president is aware of these recommendations, and as long as the president doesn’t say no, the operation is green-lighted.  Am I the only one troubled by the process?

Looking past the illegalities of the general concept that I outlined above, if you’re going to do this illegal process, it should be set up such that the president has to say yes, rather than having the president say no.  At least by having the president say yes instead of no, there’s at least some faint semblance of presumed innocence until proven guilty.  That they have the process set up with essentially a default yes rather than a default no is oddly fitting and symbolic of such a perversion of the Constitution.  It’s not just a flawed premise, but a flawed process.

Don’t get me wrong.  I’m not anti-drone technology.  People who know me and/or read here know that I’m generally a technophile.  There are definitely legitimate non-military and law enforcement uses for drones within US borders like search/rescue, wildfire reconnaissance, environmental research, and crop dusting.  What worries me about law enforcement use is the recent trend of a blurring of the line between military and law enforcement in the USA (I’d include border patrol in here, as well).  It’s not the technology, but how it’s used.

Links:

http://www.americanrhetoric.com/speeches/ericholdernorthwesternlawschool.htm

UPDATE: 31 March 2012

In my list of legitimate uses for drone technology, I recently learned of Tacocopter.  This is an idea for a business to deliver tacos via unmanned drone.  Regardless of whether one views it as a viable business model, it is an awesome idea.

Full Speech Text:

Eric Holder

Address at Northwestern University Law School

delivered 5 March 2012, Chicago, IL

Audio AR-XE mp3 of Address

[as prepared for delivery]
This is my kind of crowd.  I haven't said a word and I already got a standing ovation.  I probably ought to leave right now.

Thank you, Dean [Daniel] Rodriguez, for your kind words, and also for the outstanding leadership that you provide – not only for this academic campus, but also for our nation’s legal community.   It is a privilege to be with you today – and to be among the distinguished faculty members, staff, alumni, and students who make Northwestern such an extraordinary place.

For more than 150 years, this law school has served as a training ground for future leaders; as a forum for critical, thoughtful debate; and as a meeting place to consider issues of national concern and global consequence.   This afternoon, I am honored to be part of this tradition.   And I’m grateful for the opportunity to join with you in discussing a defining issue of our time – and a most critical responsibility that we share: how we will stay true to America’s founding – and enduring – promises of security, justice and liberty.

Since this country’s earliest days, the American people have risen to this challenge – and all that it demands.   But, as we have seen – and as President John F. Kennedy may have described best – “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”
Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment.   It is clear that, once again, we have reached an “hour of danger.” We are a nation at war.  And, in this war, we face a nimble and determined enemy that cannot be underestimated.

Like President Obama – and my fellow members of his national security team – I begin each day with a briefing on the latest and most urgent threats made against us in the preceding 24 hours.   And, like scores of attorneys and agents at the Justice Department, I go to sleep each night thinking of how best to keep our people safe.     
I know that – more than a decade after the September 11th attacks; and despite our recent national security successes, including the operation that brought to justice Osama bin Laden last year – there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders.   Disrupting and preventing these plots – and using every available and appropriate tool to keep the American people safe – has been, and will remain, this Administration’s top priority.

But just as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.   Not only is this the right thing to do – history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.
This is not just my view.   My judgment is shared by senior national security officials across the government.   As the President reminded us in 2009, at the National Archives where our founding documents are housed, “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe.   Time and again, our values have been our best national security asset.”   Our history proves this.   We do not have to choose between security and liberty – and we will not.

Today, I want to tell you about the collaboration across the government that defines and distinguishes this Administration’s national security efforts.   I also want to discuss some of the legal principles that guide – and strengthen – this work, as well as the special role of the Department of Justice in protecting the American people and upholding the Constitution.

Before 9/11, today’s level of interagency cooperation was not commonplace.   In many ways, government lacked the infrastructure – as well as the imperative – to share national security information quickly and effectively.   Domestic law enforcement and foreign intelligence operated in largely independent spheres.   But those who attacked us on September 11th chose both military and civilian targets.   They crossed borders and jurisdictional lines.   And it immediately became clear that no single agency could address these threats, because no single agency has all of the necessary tools.

To counter this enemy aggressively and intelligently, the government had to draw on all of its resources – and radically update its operations.   As a result, today, government agencies are better postured to work together to address a range of emerging national security threats.   Now, the lawyers, agents and analysts at the Department of Justice work closely with our colleagues across the national security community to detect and disrupt terrorist plots, to prosecute suspected terrorists, and to identify and implement the legal tools necessary to keep the American people safe.   Unfortunately, the fact and extent of this cooperation are often overlooked in the public debate – but it’s something that this Administration, and the previous one, can be proud of.
As part of this coordinated effort, the Justice Department plays a key role in conducting oversight to ensure that the intelligence community’s activities remain in compliance with the law, and, together with the Foreign Intelligence Surveillance Court, in authorizing surveillance to investigate suspected terrorists.   We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives.   At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals.   This Administration is committed to making sure that our surveillance programs appropriately reflect all of these interests.

Let me give you an example.   Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject.   This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security.   But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.
The law requires special procedures, reviewed and approved by the Foreign Intelligence Surveillance Court, to make sure that these restrictions are followed, and to protect the privacy of any U.S. persons whose nonpublic information may be incidentally acquired through this program.    The Department of Justice and the Office of the Director of National Intelligence conduct extensive oversight reviews of section 702 activities at least once every sixty days, and we report to Congress on implementation and compliance twice a year.   This law therefore establishes a comprehensive regime of oversight by all three branches of government.   Reauthorizing this authority before it expires at the end of this year is the top legislative priority of the Intelligence Community.
But surveillance is only the first of many complex issues we must navigate.   Once a suspected terrorist is captured, a decision must be made as to how to proceed with that individual in order to identify the disposition that best serves the interests of the American people and the security of this nation.

Much has been made of the distinction between our federal civilian courts and revised military commissions.   The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.
Our criminal justice system is renowned not only for its fair process; it is respected for its results.   We are not the first Administration to rely on federal courts to prosecute terrorists, nor will we be the last.   Although far too many choose to ignore this fact, the previous Administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice.   John Walker Lindh, attempted shoe bomber Richard Reid, and 9/11 conspirator Zacarias Moussaoui were among the hundreds of defendants convicted of terrorism-related offenses – without political controversy – during the last administration.

Over the past three years, we’ve built a remarkable record of success in terror prosecutions.   For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009.   He was sentenced last month to life in prison without the possibility of parole.   While in custody, he provided significant intelligence during debriefing sessions with the FBI.   He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula.   Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb.

In addition to Abdulmutallab, Faizal Shahzad, the attempted Times Square bomber, Ahmed Ghailani, a conspirator in the 1998 U.S. embassy bombings in Kenya and Tanzania, and three individuals who plotted an attack against John F. Kennedy Airport in 2007, have also recently begun serving life sentences.   And convictions have been obtained in the cases of several homegrown extremists, as well.   For example, last year, United States citizen and North Carolina resident Daniel Boyd pleaded guilty to conspiracy to provide material support to terrorists and conspiracy to murder, kidnap, maim, and injure persons abroad; and U.S. citizen and Illinois resident Michael Finton pleaded guilty to attempted use of a weapon of mass destruction in connection with his efforts to detonate a truck bomb outside of a federal courthouse.

I could go on.   Which is why the calls that I’ve heard to ban the use of civilian courts in prosecutions of terrorism-related activity are so baffling, and ultimately are so dangerous.   These calls ignore reality.   And if heeded, they would significantly weaken – in fact, they would cripple – our ability to incapacitate and punish those who attempt to do us harm.

Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison.   Not one has ever escaped custody.   No judicial district has suffered any kind of retaliatory attack. These are facts, not opinions.   There are not two sides to this story.   Those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion -- they are simply wrong.

But federal courts are not our only option.   Military commissions are also appropriate in proper circumstances, and we can use them as well to convict terrorists and disrupt their plots.   This Administration’s approach has been to ensure that the military commissions system is as effective as possible, in part by strengthening the procedural protections on which the commissions are based.   With the President’s leadership, and the bipartisan backing of Congress, the Military Commissions Act of 2009 was enacted into law.   And, since then, meaningful improvements have been implemented.

It’s important to note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our civilian courts.   They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt.   They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses.   They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment.   And they secure the right to appeal to Article III judges – all the way to the United States Supreme Court.   In addition, like our federal civilian courts, reformed commissions allow for the protection of sensitive sources and methods of intelligence gathering, and for the safety and security of participants.
A key difference is that, in military commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone.   For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect military personnel to administer warnings to an enemy captured in battle.   But instead, a military judge must make other findings – for instance, that the statement is reliable and that it was made voluntarily.

I have faith in the framework and promise of our military commissions, which is why I’ve sent several cases to the reformed commissions for prosecution.  There is, quite simply, no inherent contradiction between using military commissions in appropriate cases while still prosecuting other terrorists in civilian courts.   Without question, there are differences between these systems that must be – and will continue to be – weighed carefully.   Such decisions about how to prosecute suspected terrorists are core Executive Branch functions.   In each case, prosecutors and counterterrorism professionals across the government conduct an intensive review of case-specific facts designed to determine which avenue of prosecution to pursue.
Several practical considerations affect the choice of forum.

First of all, the commissions only have jurisdiction to prosecute individuals who are a part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities.   This means that there may be members of certain terrorist groups who fall outside the jurisdiction of military commissions because, for example, they lack ties to al Qaeda and their conduct does not otherwise make them subject to prosecution in this forum. Additionally, by statute, military commissions cannot be used to try U.S. citizens.

Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission.  This means federal prosecutors have a wider range of tools that can be used to incapacitate suspected terrorists.   Those charges, and the sentences they carry upon successful conviction, can provide important incentives to reach plea agreements and convince defendants to cooperate with federal authorities.

Third, there is the issue of international cooperation.   A number of countries have indicated that they will not cooperate with the United States in certain counterterrorism efforts — for instance, in providing evidence or extraditing suspects – if we intend to use that cooperation in pursuit of a military commission prosecution.   Although the use of military commissions in the United States can be traced back to the early days of our nation, in their present form they are less familiar to the international community than our time-tested criminal justice system and Article III courts.   However, it is my hope that, with time and experience, the reformed commissions will attain similar respect in the eyes of the world.

Where cases are selected for prosecution in military commissions, Justice Department investigators and prosecutors work closely to support our Department of Defense colleagues.   Today, the alleged mastermind of the bombing of the U.S.S. Cole is being prosecuted before a military commission.   I am proud to say that trial attorneys from the Department of Justice are working with military prosecutors on that case, as well as others.
And we will continue to reject the false idea that we must choose between federal courts and military commissions, instead of using them both.   If we were to fail to use all necessary and available tools at our disposal, we would undoubtedly fail in our fundamental duty to protect the Nation and its people.   That is simply not an outcome we can accept.

This Administration has worked in other areas as well to ensure that counterterrorism professionals have the flexibility that they need to fulfill their critical responsibilities without diverging from our laws and our values.   Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act.   This legislation, which Congress passed in December, mandated that a narrow category of al Qaeda terrorist suspects be placed in temporary military custody.

Last Tuesday, the President exercised his authority under the statute to issue procedures to make sure that military custody will not disrupt ongoing law enforcement and intelligence operations — and that an individual will be transferred from civilian to military custody only after a thorough evaluation of his or her case, based on the considered judgment of the President’s senior national security team.   As authorized by the statute, the President waived the requirements for several categories of individuals where he found that the waivers were in our national security interest.   These procedures implement not only the language of the statute but also the expressed intent of the lead sponsors of this legislation.   And they address the concerns the President expressed when he signed this bill into law at the end of last year.

Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice.   It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

This principle has long been established under both U.S. and international law.   In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups.   Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law.   The Constitution empowers the President to protect the nation from any imminent threat of violent attack.   And international law recognizes the inherent right of national self-defense.   None of this is changed by the fact that we are not in a conventional war.

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.   Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan.   Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want.   International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally.   But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.   This is not a novel concept.   In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board.   As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat.

Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face.   The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.   So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

Let me be clear:  An operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.   As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.   Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.   Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.   Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question.   It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel.   Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.   In that case, our government has the clear authority to defend the United States with lethal force.

Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.   The principle of necessity requires that the target have definite military value.   The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally.   Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage.   Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.
These principles do not forbid the use of stealth or technologically advanced weapons.   In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.
Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.   This is simply not accurate.   “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process.

The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history.   Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time.   The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.

That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight.   Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.

Now, these circumstances are sufficient under the Constitution for the United States to use lethal force against a U.S. citizen abroad – but it is important to note that the legal requirements I have described may not apply in every situation – such as operations that take place on traditional battlefields.

The unfortunate reality is that our nation will likely continue to face terrorist threats that – at times – originate with our own citizens.   When such individuals take up arms against this country – and join al Qaeda in plotting attacks designed to kill their fellow Americans – there may be only one realistic and appropriate response.   We must take steps to stop them – in full accordance with the Constitution.   In this hour of danger, we simply cannot afford to wait until deadly plans are carried out – and we will not.

This is an indicator of our times – not a departure from our laws and our values.   For this Administration – and for this nation – our values are clear.   We must always look to them for answers when we face difficult questions, like the ones I have discussed today.   As the President reminded us at the National Archives, “our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way.”
Our most sacred principles and values – of security, justice and liberty for all citizens – must continue to unite us, to guide us forward, and to help us build a future that honors our founding documents and advances our ongoing – uniquely American – pursuit of a safer, more just, and more perfect union.   In the continuing effort to keep our people secure, this Administration will remain true to those values that inspired our nation’s founding and, over the course of two centuries, have made America an example of strength and a beacon of justice for all the world. This is our pledge.

Thank you for inviting me to discuss these important issues with you today.

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The US Economy in 26 Charts (And Another GOP Race Update)

I promised myself I wouldn’t do a whole post on the GOP race for a while.  I will honor that promise by only devoting part of a post to the GOP race here.  The other part of this post presents links to two articles.  Each has 13 charts that make the case for or against the effectiveness of Obamanomics.  We’ll look at the articles first before circling back to the GOP primary.

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Derek Thompson at The Atlantic presented an article showing 13 charts that make the case for Obama’s reelection and Obamanomics.  Not to be outdone, Jim Pethokoukis of the American Enterprise Institute (AEI) provided a counter.  Links to both are shown at the end of this post.  Have a look at the two articles before continuing on here.  I’ll wait.

Really, I just wanted to share these two articles on here to provide an easy side-by-side of the arguments you’ll see in the coming months about the economy.  It’s human nature to a degree to just seek out data that upholds your current position and ignore data that contradicts your current position.  This is known as confirmation bias.  I don’t want to get into picking them apart here (of course, both have flaws and strengths).  Hopefully, it provides food for thought for both sides, even if only for one side to see what the other side will use to counter.

Also, let’s not fall into another logical trap.  Don’t automatically assume that one side is right and the other is wrong.  It’s possible for both to be right and it’s also possible for neither to be right.

Pretty much all that both sides agree on is that housing and employment are still a mess.  You’ll note Thompson tends to focus more on a vacuum of the current environment (generally only deviating selectively to highlight the severity of the current crisis) whereas Pethokoukis attempts several times to compare the current environment to previous environments. 

Very obviously, both sides are cherry-picking data and keeping things in favorable frames of reference for their arguments.  In many cases, they’re either talking about apples and oranges or they’re talking about two sides of the same die (6-sided, 20-sided, depends on the issue), even in cases where, at a quick glance, it would appear charts from each set (or within the same set) contradict one another. 

The trick isn’t to just focus on what the chart is showing you, but focus on what the chart is NOT showing you.  How does a chart fit into the bigger picture?  That’s part of why I think a quick read through these two articles can be an instructive exercise.  Also, there’s good information to be taken from both sets of charts.

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And, back to the GOP primary.  Rick Santorum has gone 3/5 in state contests since Super Tuesday, winning in Kansas, Mississippi, and Alabama.  Mitt Romney picked up a win in Wyoming and Hawaii (along with Guam, the Virgin Islands, the Northern Mariana Islands, and American Samoa, which are not states, but contain delegates nevertheless).  Newt Gingrich and Ron Paul both failed to win any contests outright, though both picked up some delegates.  The results and my current delegate count are in the table below. 

There’s not really that much to say.  In Romney-Santorum-Gingrich-Paul terms, Romney faired well, but in Romney-Paul-anti-Romney terms, Romney didn’t do as well.  Anti-Romney needs to consolidate to one person, and Santorum is clearly the one because he’s continued his outperformance over Gingrich.  That Romney didn’t really lose that much ground to anti-Romney in overall delegate accumulation is indicative of the non-winner-take-all dynamics I’ve previously discussed. 

I’m seeing article after article question Romney’s momentum.  They say he has the math, but not the momentum, due to a pair of third-place finishes in Alabama and Mississippi.  These pundits are jumping the gun here.  Alabama and Mississippi are two of the most conservative states in the USA.  Romney taking first or second in either (or both) states would have been a surprise to me even when we consider the anti-Romney divide.  Romney placing third in both is not, and should not be, a surprise, in my opinion.  It also ignores his decisive victory in Hawaii, Wyoming, and the non-states.

I’m also seeing a lot of articles make the case that Santorum is better off with Gingrich in the race rather than without him.  The rationale is because Romney must fight on two fronts instead of one if Gingrich stays in the race.  The belief is Romney’s treasure chest is getting bled dry.  It’s an interesting line of thought, but the math doesn’t work that way.  If Gingrich drops out of the race and anti-Romney consolidates behind Santorum, Romney will still win delegates, but at a slower rate because of the non-winner-take-all dynamics I’ve previously discussed.  Delegates that would go to Romney in a four-person race would instead go to Santorum in a three-person race.  Santorum would thus gain delegates at a higher rate in a three-way race than a four-way race, potentially enough to erase Romney’s lead if we were to also combine that with the addition of Gingrich’s delegates to Santorum’s delegates.  I simply don’t see a majority, or even a meaningful portion, of Gingrich’s supporters flocking to Romney over Santorum.

As such, I’m sticking to my guns.  If you want Romney to win, you want Gingrich to stay, but if you want Romney to lose, you want Gingrich to go.  It’s Romney’s race to lose as long as it remains a four-man race. 

Anyway, now we’re looking ahead.  Here’s your guide for the rest of primary season in another quick Excel table. 

My partial break from the GOP primary race will become a full break because, unless someone (Gingrich) drops out of the race, I’m done posting about the GOP primary until after the 3 April results, which will include next week’s races in Illinois and Louisiana.

Links:

Fox News Primary Tracker: http://www.foxnews.com/politics/elections/2012-primary-calendar

Pro-Obamanomics Charts: http://www.theatlantic.com/business/archive/2012/02/the-white-houses-economic-case-for-reelection-in-13-charts/253806/

Anti-Obamanomics Charts: http://blog.american.com/2012/03/the-economic-case-against-obamanomics-in-13-charts/

Super Tuesday Aftermath

Here’s a quick rundown of the Super Tuesday results.  Mitt Romney won six states (Alaska, Idaho, Massachusetts, Ohio, Virginia, and Vermont), Rick Santorum won three states (North Dakota, Oklahoma, and Tennessee), Newt Gingrich won one state (Georgia), and Ron Paul won no states. 

See below for a table of the results, both in terms of vote percentages and delegates acquired.  I’ve also provided the approximate vote total from each state and the Associated Press delegate count going into Super Tuesday.  99% of precincts were reported as of this writing in all states except North Dakota (76%), Idaho (89%), and Tennessee (96%).  Also, not all delegates may have been awarded yet.

Note that Virginia was a battle between Romney and Paul because nobody else made the ballot.  Also, note that Massachusetts and Virginia were winner-take-all states.  These points account for the concentrations of zeroes in certain areas.  As a quick aside, in the old days of computer programming, we would have left those zeroed cells blank instead of putting in a zero to conserve memory.  I’m talking decades ago here, which is an eternity in technological terms. Anyway, back to the topic at hand. 

We can clearly see where the failure of Santorum and/or Gingrich to get on the Virginia ballot is a big deal.  They basically gave Romney 41 easy delegates.  When you really think about it, however, it’s potentially an 82-delegate swing if one of those two wins the state instead because it would mean 41 less delegates for Romney and 41 more delegates for Santorum/Gingrich. 

One can argue that because Gingrich and/or Santorum didn’t have to worry about Virginia, they could allocate more resources to other states and win more delegates that way.  I think that’s pure nonsense, mainly because I highly doubt either would have been able to use those resources to engineer an 82-delegate swing anywhere.  Also, because it was just Romney versus Paul, most of the anti-Romney vote probably stayed home.  We’ll obviously never know for sure, but I think Virginia would have been in play for Gingrich/Santorum if one of them was there (but probably not both).

As you know, I’ve advocated looking at the race not as Romney-Santorum-Gingrich-Paul, but Romney-Paul-anti-Romney.  It’s obvious why that matters in winner-take-all states, but I haven’t really touched upon it in states that award delegates based on who wins certain districts (and possibly also who wins the popular vote of the entire state).  There are numerous districts in numerous states that ended up going to Romney because anti-Romney was divided among Gingrich and Santorum.  The combined anti-Romney would have won. 

Maybe one of those split states awards more delegates to anti-Romney and less delegates to Romney not just based on a new winner for the state, but a new winner within state districts.  Said another way, maybe Ohio, which awarded 35 delegates to Romney and 21 to Santorum, instead awards not just 35 to Santorum and 21 to Romney, but maybe 40 to Santorum and 16 to Romney.  As with Virginia above, it wouldn’t just be an x-vote swing, but a 2x-vote swing.  We’d have to dig into aggressively into intrastate data, but I suspect we really would see it.   

The results were largely in line with expectations and I don’t see anything that really surprises me.  It showed us, once again, that if you want Romney to win, you want Gingrich to stay in the race as long as possible, but if you want Romney to lose, you want Gingrich to go.  Overall, I’d say Romney has widened his lead in the delegate hunt, but this was hardly a knock-out punch to the anti-Romney crowd.

There are a few small races coming up soon.  The Kansas caucus is this weekend, along with Wyoming, Guam, the Virgin Islands, and the Northern Mariana Islands (which is interesting because Guam and these islands aren’t actual states).  Alabama and Mississippi are up on Tuesday.  Personally, I don’t expect Romney to fair well in any of these states except possibly Wyoming.  This will be a mild week and weekend compared to what we’ve recently had.  I may even be able to get some non-GOP primary posts in sometime soon.

GOP Nominee Race Update – Four States This Week and Onto Super Tuesday

Mitt Romney won both races Tuesday night in Arizona and Michigan.  He also won in Washington state and Wyoming.  Let’s have a look at those real quick before we look ahead to Super Tuesday.

Romney won Arizona with 47% of the vote, followed by Rick Santorum’s 27%, Newt Gingrich’s 16%, and Ron Paul’s 8%.  Arizona was winner-take-all, so that’s 29 delegates for Romney.

Michigan was a tight race, but went to Romney in the end over Santorum, 41% to 38%.  Paul came in third with 12% and Gingrich took fourth with 7%.  Note that Michigan was an open primary, so non-Republicans could vote.  I previously discussed some open primary voting dynamics with regards to South Carolina, so I won’t replay that here.

Washington went to Romney with 38%.  Paul took second with 25%, narrowly beating out Santorum’s 24%.  Gingrich brought up the rear with 11%.  Note this was a nonbinding straw poll and none of the state’s 43 delegates were awarded.

Romney took Wyoming with 39%.  Santorum followed with 32%, beating out Paul’s 21%.  Gingrich again took last with 8%.  This also was a nonbinding vote.

For perspective on the delegate counts, it requires 1,144 delegates to win the nomination.  Romney has 173 delegates, followed by Santorum at 87, Gingrich at 33, and Paul at 20.  As you can see, the overwhelming majority of delegates remain uncontested and unallocated at this time.

Going into Michigan and Arizona, I was of the opinion that Romney needed two decisive wins.  Though I appreciate the sentiment that a win’s a win, I maintain that view.  Here, to get a ‘decisive win’ means Romney needed to not only beat Santorum, but beat the combined anti-Romney vote (aka Santorum plus Gingrich, but excluding Paul).  Romney did that in Arizona, but failed to do so in Michigan. 

Anti-Romney would have won Michigan, in other words.  It’s still something that should be a major warning flag for the Romney camp and those who have (prematurely, in my view) coronated Romney as the nominee.  Romney was widely expected to decisively win Arizona, and he did.  He was also widely expected to win Michigan in a close race, which he did.  I think Romney needed to exceed expectations, and merely meeting them is not good enough.  In terms of delegates, Romney clearly won the night 40-11.  In terms of expectations, however, I’d call it a draw for Romney in that he merely met them rather than exceeded them (obviously, a loss would have been if Romney failed to even meet expectations).    

As I’ve been saying all along and will continue to say until it happens, anti-Romney needs to coalesce around one guy if they want to win.  The longer they wait to do that, the better it is for Romney.  This is one way of saying that Romney’s best friend right now is Gingrich.  Similar to how Romney was hoping Rick Perry would stay in the race as long as possible (he dropped out just before South Carolina), Romney is now hoping Gingrich stays in the race for Super Tuesday.  Santorum has, in my view, clearly displaced Gingrich as the choice of the anti-Romney camp.  As long as this remains a four-person race, Romney is obviously still the guy to beat, but the race is too close to call if/when it goes down to three.

If you want Romney to win the nomination, you want Gingrich and Santorum to stay, and if you want Romney to lose it, you want Gingrich or Santorum to go (but not both).  It’s that simple. 

Now, it’s time to look ahead to Super Tuesday.  The Los Angeles Times has a great primer on this year’s events here.  Georgia, Ohio, Tennessee, Virginia, Oklahoma, Massachusetts, Idaho, North Dakota, Alaska, and Vermont are all in play.

Massachusetts and Georgia are absolute must-wins for Romney and Gingrich, respectively.  I’m still generally of the opinion that a candidate failing to win his/her home state is pretty much intolerable.  History proves that out in presidential elections since only two presidents have won an election and lost their home state (Polk in Tennessee in 1844 and Wilson in 1916 in New Jersey), but I admit I haven’t looked into it at the primary level. 

I’m also of the opinion that candidates should be able to win in neighboring states to their home states, though I’m obviously not as rigid in neighbor states as the home state.  To me, the home state is almost always a must-win, but the neighbor states are generally should-win (neutral or immaterial are other categories here).  Under this logic, Vermont, Tennessee, and Ohio are should-win states for Romney, Gingrich, and Santorum, respectively.  I’d even go so far as to peg Ohio as a must-win for Santorum based on how the race is going. 

Being from Texas, Oklahoma is a neighbor state for Paul.  For a more typical candidate/campaign strategy, I’d consider it a should-win for Paul, but Paul is not your typical candidate/campaign, as I’ve outlined before.

One might have considered Virginia to be Santorum and/or Gingrich’s neighbor depending on how far we want to stretch, but neither made the ballot, which is a major organization failure.  Virginia is of particular interest to me because it’s just Romney and Paul.  Nobody else made the ballot.  Though I don’t see it happening, a Romney loss in Virginia would be a disaster for him. 

Alaska, North Dakota, and Idaho present no home/neighbor advantage for anyone in the race.  Also, given their opacity and general lack of data, I don’t really have a feel for them.  All I’m listing here, for the most part, are states that I view as must/should-win states for various candidates.  We’ll see how this plays out.

Links:

http://www.latimes.com/news/politics/la-pn-super-tuesday-voting-primer-20120302,0,6366298,full.story