The Debates End

Note: Car accidents and hurricanes have a way of disrupting life.  Better late than never on the post.

We had the third and final presidential debate between Barack Obama and Mitt Romney recently.  I’ve previously dedicated partial posts to the first and second debates, as well as the vice presidential debate between Joe Biden and Paul Ryan.  This last debate, however, will receive a whole post.  There were multiple important things to take away from this debate. 

Bob Schieffer did a good job moderating.  He was much better than Candy Crowley.  Schieffer has known biases in his beliefs, but you wouldn’t know it based on his job as moderator.  My main issue wasn’t so much with the questions he was asking and the answers the candidates were giving, but what wasn’t addressed.  Often, what is not present is more instructive than what is present.  This falls on Schieffer since these were his questions.

First, there was no mention of the US’s immediate neighbors, Canada to the north and Mexico to the south.  The Keystone pipeline should have been discussed with regards to Canada.  Mexico needed to be discussed in both the context of Operation Fast and Furious as well as the bigger picture because Mexico is the failing state next door. 

Second, there was no mention of the European economic crisis.  That truly blew my mind.  Despite what the Nobel Committee would have you believe, Europe is imploding away from the news spotlight.  This is a huge global problem and had to be addressed.  We need to know Obama and Romney’s thoughts on the matter, especially since this is an economic as well as foreign policy matter.

Third, the moderator didn’t even get to China until over an hour into the debate.  The relationship between the US and China is the most important two-country relationship on Earth today and will be for decades to come.  It is thoroughly absurd to wait that long to get into China.

Fourth, there were all kinds of other matters that weren’t mentioned, such as the NDAA and Guantanomo Bay, or did not get the attention I felt they deserved, like drones (only overseas use, no mention of domestic use, of course).  The intersection between foreign policy and civil liberties was virtually ignored. 

Last is my grab-bag.  I would have liked to have seen more discussion on trade agreements and nuclear arms.  Libya wasn’t discussed enough for my liking, but they did at least spend some time on it.

So, what did we actually hear from what was asked and answered?  Romney is not really all that different from Obama on foreign policy.  We saw variations in details and such, but the general course was more or less identical.  For example, both favored the crippling sanctions imposed on Iran and both favored a change in leadership in Syria, though they differed slightly in the details.  The sparks flew a bit on Libya early, but that’s about it.  Because there was little contrast between the candidates, this was actually a rather boring debate.  I had long suspected that Romney would not have meaningful difference in foreign policy from Obama and I was proven correct.  Effectively, this means that, outside of the Libya attack (which is starting to look like a major blunder by Team Obama that I may have to do more about on my blog here), foreign policy should not be a material factor in voting. 

Ask yourself this.  Why would they ignore Canada, Mexico, and Europe while placing less emphasis on China than they should and focusing almost entirely on the Middle East?  I have my theories, but just keep it in the back of your head. 

Because of the lack of contrast, it is once again difficult to score the debate.  I would call it a draw in the bigger picture sense in that both candidates had success doing what they needed to do, but if I had to pick a winner of this debate itself, I would definitely give it to Obama because he was clearly the stronger debater. 

Romney had very low expectations, so all he really had to do was not blow it and present himself as a viable diplomat and commander-in-chief.  He succeeded at not blowing it by offering limited contrast and generally carrying himself in stable manner.  Romney did well at portraying himself as tough when necessary, but diplomatic otherwise and certainly did not portray himself as a warmonger (in a sense relative to neoconservatives, not libertarians).  Romney had a few really great moments, such as his statement about the Middle East that, “We can’t kill our way out of this mess.”  Romney also did well at trying to pivot back to the domestic economy and the belief that peace and prosperity need each other.  That said, I do feel like Romney really missed an opportunity to really pound Obama on the Libya attack.

Obama didn’t deliver the knockout punch, but he clearly outperformed Romney here.  One of the biggest benefits for Obama was being largely able to dodge questions about Libya…again.  Obama continued the aggression from the last debate, which may not have been the most prudent thing to do in a foreign policy debate.  It helped him win the debate and kept Romney on the defensive most of the show, but it made Obama actually look more hawkish than Romney, believe it or not.  The lack of contrast between Romney and Obama helps Obama because it’s an implicit admission by Romney that he agrees with much of Obama’s foreign policy.  Obama also put a strong focus on snark, sarcasm, and zingers, which was probably intended to make him look more likeable and show a funny side.  I don’t think it worked at the former, but it did work for the latter. 

Here’s the bottom line.  What we didn’t hear was arguably more revealing than what we did hear and, even though Obama clearly outperformed Romney to actually win the debate itself, the bigger picture view is that it was a draw because both candidates did what they had to do.

Links:

1^st Debate Review http://timsopinionblog.blogspot.com/2012/10/a-libertarian-argument-for-voting-for.html

2^nd Debate Review http://timsopinionblog.blogspot.com/2012/10/gay-marriage-update-before-2012.html

VP Debate Review http://timsopinionblog.blogspot.com/2012/10/a-vice-presidential-and-senate-debate.html

Eurozone Nobel Prize http://timsopinionblog.blogspot.com/2012/10/the-nobel-peace-prize-goes-tothe.html

3^rd Debate Transcript http://www.foxnews.com/politics/2012/10/22/transcript-presidential-debate-on-foreign-policy-at-lynn-university/

A Vice Presidential and Senate Debate

I want to look at two things in this post.  One is the debate between Vice Presidential candidates Joe Biden and Paul Ryan (no Libertarian candidate…imagine my surprise).  The other is the debate for the Connecticut senate seat between Linda McMahon and Chris Murphy.

I didn’t watch either debate live and thus wasn’t on Twitter.  Instead, I watched football, as the Steelers lost on a last-second field goal to the Titans.  To be perfectly honest, the football game was better even though my team lost. 

Biden-Ryan was still an interesting debate.  In the first debate between Barack Obama and Mitt Romney, the general consensus was that Romney clearly won (maybe or maybe not decisively depending on who you ask, but Romney was generally the clear consensus winner).  Romney was clearly the more energized and aggressive in that debate.  Obama was too passive, plain and simple.

When we fast forward to this debate, you see Biden was the one who came out energized and aggressive while Ryan was more passive.  The moderator had even less control in this debate than last time.  The Democrats were clearly demanding energy from their guy and Biden did deliver that.  Biden spent a bit too much time laughing, snickering, and grinning like a Cheshire cat for my taste.  The GOP was simply looking to maintain the momentum. 

So, who won?  Really, I think it was a draw in that both candidates did what they had to do.  However, if I had to pick a winner, I would say Ryan won overall because my vibe was that he was handling Biden’s energy better than Obama handled Romney’s.  Obama seemed to wilt during the first debate, but Ryan didn’t really wilt for the most part.  I also don’t think expectations were set very high for Ryan (nor were they very high for Romney), so he exceeded expectations in my opinion.  The GOP appears to have maintained their momentum, as well. 

That said, Biden put in a much stronger performance than Obama did in his first debate and I think he succeeded in igniting a spark within the Democrats’ base.  He didn’t lose clearly (and/or decisively depending on who you ask) like Obama did.  I think Biden may even have exceeded expectations.  My call of a draw looks reasonable given the divide about who actually won.  I don’t see people from the left saying their guy lost like I did after the first debate, and I don’t see people from the right saying their guy lost, either. 

I’m seeing more states shifting toward Romney in polls than toward Obama.  Some states that were leaning for Obama are becoming toss-ups and some that were toss-ups are now leaning toward Romney.  I don’t see much movement in the other direction in the swing states.  I still see Obama having the inside track for the win, but Romney is closing the gap considerably and quickly.  This is shaping up to be another close one like 2000 or 2004 rather than the decisive win Obama had in 2008. 

And we’ll move onto the McMahon-Murphy debate.  This was their second debate.  I missed the first one, probably also because of football.  I’m an American guy and I have my priorities. :-p To me, this was a nasty debate to watch.  Both candidates went negative early and stayed negative throughout most of the debate.  Neither candidate really went into much substantive policy discussion, so if you were looking to learn about their actual positions, you were probably very disappointed.  They were also very repetitive in their attacks on each other.  If the first was anything like the second, I didn’t miss anything of value.  If the third is anything like the second, I’ll probably skip it.  There was just no value in watching it.  I’ve never seen a worse debate, to be honest.  I’m glad it was only an hour.

Next up is the second Obama-Romney debate, which is Tuesday.  I’ll watch it live, but will refrain from tweeting and such during the debate.  I find it too difficult to focus on the debate when I do.

Book Review – "Intellectuals and Society" by Thomas Sowell

I finally read Thomas Sowell’s Intellectuals and Society.  This is the second Sowell book I’ve read and reviewed, along with reading his syndicated columns.  I’m reviewing the original version here, not the recently expanded version.

The central themes of the book are two-fold.  First is how the intellectuals and intelligentsia have shifted their tactics.  Instead of trying to directly influence the leaders directly, which has historically been the way to go until the rise of mass media, they aim to influence the people themselves, who put pressure on the leaders because of the election process.  Sowell also demonstrates repeatedly that, not only do intellectuals and the intelligentsia often get it wrong, but the costs of them doing so enormous and much larger than one might think.

Sowell starts in Chapter 1 by defining what he means by ‘intellectuals’ and the ‘intelligentsia’.  Intellectuals as a profession, which is his focus here, deal in the generation and cultivation of ideas (the ideas need not be original) while the intelligentsia helps to spread and refine them.  In other words, intellectuals are a subset of the intelligentsia.  Intellectuals can be found in think tanks, academia, education, and the media, among other places.  Their work starts and ends with ideas, while validation comes from peers.  This is in direct contrast to people like engineers, doctors, and scientists whose work is intellectually demanding, but produces tangible products/services that are validated by real-world results   The irony that Sowell himself is an intellectual writing about intellectuals and the intelligentsia is not lost on me.

Chapter 2 is built around one key point, namely the importance of grasping the limitations of an individual’s knowledge base.  It explores notions versus knowledge and the value and perception of knowledge, as well as incentive structures, using experts to help make a decision versus helping to justify a decision already made, reasons as often a poor substitute for knowledge, and isolated incidents versus the bigger picture.  We also face the question of whether individuals or central planners are better suited to make decisions.

In Chapter 3, Sowell explores income, economic systems, businesses, and the economic cycle.  Some key themes that emerge in this chapter highlight the importance of looking at people as individuals, not as merely statistics or aggregates or groups and the intelligentsia’s tendency to transform an opposing argument rather than address it with logic and/or evidence.  He also spends some time discussing the Great Depression and how government intervention in the economy via central planning was a failure.

I suspect Sowell’s focus in the next chapter is what he spent a whole other book on, namely A Conflict of Visions.  Here, he details two core ways of looking at the world.  The vision of the anointed, as he calls it, is that the world is full of problems that intellectual elites alone are qualified to solve.  The tragic vision, on the other hand, sees civilization as something that needs strong and constant effort to preserve based on experience rather than theory.  Also in this chapter is discussion of more tactics intellectuals use, namely arguments without arguments, simplification of an answer by expansion of a question, and dismissal of an opponent’s worth.  He also rejects the left-right dichotomy in US politics and discusses change versus the current state, rhetoric and preferences, age, and notions versus principles.  The conclusion of this chapter, with its focus on real human beings in the real world versus abstract people in an abstract world, is also some excellent commentary.

Now, Sowell really gets into the intelligentsia’s tactics.  He talks about how they filter reality via selective sampling, suppression of information, making up characters, and shifting words (swamps become wetlands, for instance).  Objectivity versus impartiality pops up again.  He also mentions subjective versus absolute truth and multiculturalism.

Sowell then takes us into legal matters, focusing on property rights, judicial activism versus restraint, and gun control.  The latter is particularly important, as the issues of whether weapons or people kill people and whether being armed encourages or discourages violence will come up in the next two chapters. 

Next up are two chapters on war.  The first of these focuses on the two Great Wars, how the intelligentsia got it wrong both times, and how their error the first time directly contributed to their error the second time.  This is an extremely insightful chapter.  Anybody who wants to learn about what was really going in these decades should read it because there’s truth here that has been largely whitewashed out of history.

The second war chapter looks at the Cold War, Vietnam War, and the two Iraq wars.  This chapter disappointed me in two ways.  First, I would have liked to have seen some discussion about the Korean War.  I think the Korean War needed to be presented here, even if only because it provided some additional rhetorical fuel for the intelligentsia to use during the Vietnam War.  Second, Sowell pretty much glossed over the reasons behind the US entering the second Iraq war and instead focused almost entirely on the surge and whether it worked.  Don’t get me wrong, the section on the surge was very well done and I agree with his argument that the surge clearly worked despite the intelligentsia’s portrayals to the contrary.  I just feel like he missed an opportunity here because the intelligentsia was a very significant driver in getting the US back into Iraq in the first place.

And we come to the conclusion, where Sowell ties everything up quite nicely and drives home the point that intellectuals and the intelligentsia have done great harm to the modern world.

Here’s the bottom line.  I highly recommend this book to anybody interested in 20^th and 21^st century US and European history, members of the intelligentsia and intellectuals, those who fall outside those spheres, and anybody interested in concrete examples of and effective counters to the logical trickery so often employed by intellectuals and the intelligentsia.

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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