Letter-81: Windsor and D.O.M.A.

NOTE in 2016: I switched my political preference to sanction the term "marriage" for same-gender couples when religious freedom laws emerged after this decision. The vote against the term marriage had been contingent upon same-gender couples availing themselves of very right accorded to 'traditional' married couples. When it became obvious that such justice would not proceed for 'civil unions', justice required that the term "marriage" be applied, with its full cultural approbation, to same-gender couples. 

The Supreme Court acts as a Council of Elders for the Republic in which we live.  That does not imply infallibility but should command our respect.  The Supreme Court for over two centuries has successfully asserted a role of clarifying what the law says under the Constitution.  In controversial decisions, some see the Court as over-reaching while others believe it is protecting the rights of citizens and States as enumerated and implied under the Constitution. 

Either way, what the Supreme Court does is judicial review to provide checks on the powers of other branches of government and of aggressive or belligerent majorities.  And, on this day of all days, we ought to be properly grateful to the nine men and women who serve not us alone but those yet to come.  The Decision of U.S. versus Edith Windsor (“Windsor”), which overturned the key provisions of the Defense of Marriage Act of 1996 (“D.O.M.A.”) conforms to this tradition of deferential goodwill.

Truthfully, I voted against same-sex marriages in a Maryland referendum in 2012.  That proposition only passed 53-47% in one of the bluest of blue states; gay marriage is not a ‘gimme’ nor is it a gimmick.  These unions are here to stay.  I would still vote against that proposition, notwithstanding Windsor, were it held again today. Yet declaring D.O.M.A. to be unconstitutional was “meet and right so to do” by the Supreme Court. 

The Court’s opinion – written by Justice Kennedy on behalf of himself as well as Justices Ginsburg, Kagan, Sotomayor and Breyer – made a compelling, pithy point that, “D.O.M.A. seeks to injure the very class New York [law] seeks to protect….”  Further, the split decision (five votes to four) found a common ground in favor of two constructions of the Constitution and precedents consistent with the national charter.

First, the D.O.M.A. law went far beyond a simple definition of marriage to disenfranchise a group of couples from economic rights and political sanctions afforded to other couples in a manner outside of the scope and against the spirit of the Constitution.  Second, committed relationships are the proper province of state laws. Contrary to the assertions of this decision being an example of judicial over-reach, Windsor corrected flagrant legislative over-reach and economic discrimination.

Under this decision, states still have latitude to legislate or regulate marriages.  Yet Justice Kennedy stayed in the everyday real-world by stating, “….until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.”  The argument against expanding traditional definitions of marriage to include gay unions is actually one that is well thought out.

Though I still agree with the essence of those arguments, its disturbing application under D.O.M.A. spelled the law’s demise.  Basically the conservative view, outside of the bullies bloviating across the air-waves, is simple.  First, with few exceptions, across millennia and societies, marriage had meant monogamy between a man and woman, principally for the creation and socialization of children.  Without the secure transmission of values, civilizations falter.

And we see evidence of that verity, however unfashionable, to this day.  The statistics are unmistakable: children of broken families and single parent households, especially boys, tend to run into more behavioral and adjustment problems as adolescents and adults.  This may likely apply to children growing up under same-sex couples.  The rub here is that wealthier families with intact extended family networks often compensate for any real or perceived deficiency of a non-traditional family unit.

In a nutshell, that is the argument: tradition and statistics (at least as the latter apply to the more economically stressed and isolated).  Now, anecdotally, same-sex couples seem largely to be affluent and often nurtured by loving extended families that are well educated.  That is great.  For me, I would like to see a meeting of minds of the more civil arguments between both sides.  Marriage remains a heterosexual monogamous union while civil unions are available to committed same-sex couples.

That would mean, at least on the national level, absolutely no discrimination of one status over the other, with equal protection under the law and equal access to the advantages of being American citizens.  While conservatives may object to a mere semantics game suggested here, I would submit that this compromise balances respect for the tradition of matrimony – still a sacrament in many people’s eyes – with fraternal acceptance of all manner of goodwill and righteous citizenship.

There still remain a couple of house-keeping points brought to the fore by the dissent of Justice Scalia.  First, should the Supreme Court have ruled on this case at all, since it basically upheld the findings of lower courts?  Yes, it should have, as Justice Kennedy wrote, “relevant prudential factors that counsel against hearing this case are subject to ‘countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.’”

While the decision stated that the lack of ‘precedential’ guidance for ninety-four district courts and over a thousand laws mandated this exertion of judicial power, I would go beyond that to the underlying purpose of the Constitution itself: to secure the blessing of liberty for the citizenry.  Since the Constitution is a user’s manual for republican government based on natural law, its aim is to limit national powers as those specifically delegated to the government by the governed (i.e.,  in our case, states and people).

Those enumerated powers belong to the government for two reasons: scope and protection of natural rights.  Scope is easy to identify.  There can only be one foreign policy of the United States, at least at a time.  Most of the other enumerated powers focus on matters truly national or international in nature.  The protection of natural rights is a little trickier.  Often, such rights – always open to differing interpretations – are best left to the states.

On the other hand, there are rights that transcend the states and transcend people.  They are the natural rights endowed by the Creator as expressed through His nature manifested on Earth.  For the less religious among us, I suggest re-phrasing this idea as a neo-platonist notion that there are certain practices, norms, behaviors, etc. that consistently emerge across time and space.  This persistence of overt behaviors implies an absolute upon which specific conventions and norms are modelled, if imperfectly.

The beauty of our Constitution is that it really is a how-to book of the natural law captured in short-hand within the Declaration of Independence.  These inalienable rights of life, liberty and the pursuit of happiness (i.e., property) are what the Constitution is designed to protect within a larger scheme of social and national interaction.  When state-level or popular practices abridge these inalienable rights, without merit in the eyes of a reasonable and disinterested fellow citizen, the issue is no longer one for the states.

That explains why – despite brilliant compromises and articulate Supreme Court opinions – slavery never went away until it was abolished without exception or mercy.  That is why the dilemma of pro-life versus pro-choice keeps nagging at us even after the Supreme Court tried to resolve it by reserving such judgments to the states and protecting an implied right of privacy.  In this vein, D.O.M.A. did not resolve this question of equality for same sex couples; it abridged the rights of gay Americans. At the least, the right to equal economic benefits.

The other implication of Justice Scalia’s erudite and articulate dissent with which I disagree was best put forward by my F.B. friend and, virtual oracle, Dr William Monie Bauer.  Bill and I agree on what Justice Scalia implied – making these cases piecemeal.  We differ on their effect on the larger society.  If the Court had dismissed the hearing without definitive precedent, every instance of discrimination against same-sex couples would have to go through a separate suit.

Dr Bauer is right that the judicial cholesterol would clog the system and the government, finally forcing much-needed reforms of the court system ridding it of its most burdensome dysfunctions.  Yet, piecemeal trials would permit people to slow the progress toward eliminating abridgements of natural law in service of a more perfect union.  My inarticulate argumentation ought not render inscrutable a fairly straight-forward perversion of justice.

Take the 1954 ‘Brown versus Board of Education’ decision, for example.  If Topeka had simply let those black children into the white school before the Supreme Court had rendered a decision, then (under Justice Scalia’s reasoning), the case would have had not standing and been dismissed.  What an ingenious way for white supremacists to pursue apartheid: every time a case came close to decision, let a few black kids into the white school.

The at-most dozen or so black children thus admitted every year to foil a governing precedent would be so small compared to the white majority that, in areas of overt racial oppression, those children would probably be out of there soon and, if not, would have so little influence that “99.9% separate would be inherently unequal.”  In fact, segregation would still be in place today under the precedent of the ‘Plessy vs Ferguson’ decision of 1896. 

The decision to gut D.O.M.A. is a welcome application of judicial and national power to eradicate a systemic injustice.  As for my own feelings about gay unions; that is irrelevant.  Heterosexuality is my preference, but it ought not be my presumption.  I would suggest to those fond of citing Sodom and Gomorrah, as examples of the unnatural state and consequences of homosexuality, that they have overlooked one very important aspect of the larger story that prefigures the compassion later exemplified in other faiths. 

Abraham taught God all about compassion (and, for those who see homosexuality as something sinfully deviant, forgiveness) by haggling Him down to finding one good man in the city limits to get that desert dumpster off the hook.  Frankly, I am not one to buy into the forgiveness argument for I see nothing to forgive.  The incidence of homosexuality rises with levels of sentience among beings.  Additionally, findings suggest that sexual preference is either innate or manifested early in life.

Letter-80: class without class

The first letter about Private Manning intended to place his ordeal and trial into the wider context of an age in American politics obscured by an apparent sacrifice of morality to short-term gains and future résumés.  Yet, new reports breaking every day make ‘keen’ perceptions obsolete overnight.  Truth be told, some of the things stated in my first letter are already out of date or just plain wrong.  For example, this column by George Will in the Washington Post, which came to my attention through my enlightening, if virtual, friendship with Dr William Monie Bauer on FaceBook, shows how quickly things change as information surfaces as it inevitably will. 

http://www.washingtonpost.com/opinions/george-f-will-lois-lerner-the-scowling-face-of-the-state/2013/06/12/e644307c-d2d5-11e2-a73e-826d299ff459_story.html 

Before Mr Will’s analysis empirically placed Lois Lerner at the center of political malfeasance in the past, we all knew that the culture of the I.R.S. had rotted from the inside out.  Previously, I had privately theorized, and still surmise, that much of the problem might have lain in the question of who assigned the bonuses to senior officials.  If bonuses are doled out by political appointees, the incentive to ‘manage-up’ would be very strong, for many irresistible.  Mr Will’s column, however, quickly removed any lingering doubts about the advisability of an independent council. 

Within this wider context of the collapse of principle, my argument in favor of Bradley Manning’s innocence – no, in favor his vindication – rests on three premises:

• the test of time;
• the test of justice; and,
• the test of truth.

Private Manning passes these three ‘tests’ quite easily.  While Private Manning has faults, to be sure, he drew on something very decent within his character that flouted everyday flaws with which we humans must live and deal. 

The test of time.  It has been three years since these leaks occurred and there has been little, if any, discernible fall-out against U.S. national interests.  Some people have suffered for writing stupid things in e-mails – a bane of mine, as my sister and as my mentor in banking can amply attest.  Others have been embarrassed for things that were classified to suppress public exposure of unfortunate actions, including the killing of a Reuter’s reporter and his crew in Sadr City in 2007.  But the U.S. faces no existential threats or enduring direct challenges to its stature. 

Credibility of the national purpose of American beneficence is under some scrutiny but that is all.  If betrayal of the nuclear secrets to the erstwhile U.S.S.R. or missile technology to Red China – or even the truly odious treason of Aldrich Ames – did not sink or even swerve the U.S. from its interests, these disclosures through Wiki-Leaks almost certainly will not.  In fact, they are healthy since they are getting the ‘collective head’ of our citizenry back into the ‘game’ of democratic accountability.

The test of justice.  This test has two parts.  One military, related to Bradley Manning’s oath to protect the Constitution and the United States of America, as well as another, related to the events being disclosed.  In this case, I will address the second part first.  Was Bradley Manning bringing to light an unjust policy of his government?  I would argue he was, at least in the case of Afghanistan and of Iraq before the 2008 surge.  Why were these policies fundamentally unjust when the intentions were manifestly just or, at least, popularly endorsed as such at their outsets? 

Because a long enough period of time had elapsed to clarify that an unchanging continuation of the just intention would predictably produce human suffering and death.  In essence, humanitarian fallout of a failing policy trumped the continued application of its just premises.  That is to say: bloody consequences reasonably foreseen blighted the initial intent.  Consequently, Bradley Manning brought to light a fundamentally unjust policy.  (As an aside, I believe that President Bush’s decision to surge was the second great moral decision he made on Iraq; that will have to wait to another discussion.)

Now for the second part.  The Nuremburg trials may have reached too far by sentencing Axis military commanders to death for their decisions in the field, on the seas or in the air.  Nevertheless, one clear message emerged from hanging complicit military leaders, in addition to others who waged a stark genocide against two peoples: simply following orders is not an excuse.  If he did not raise moral objections internally, perhaps then Corporal Manning should have before routing this information to the public.  Such an option was likely impractical, if not impossible; such a protest may have only precluded Bradley Manning’s future access to that information to release it.

The test of truth.  Were these truthfully state secrets that Bradley Manning divulged? No. The classification system has been thoroughly compromised from within.  As I learned several times in information security classes, classified information has to be approved as classified by a few specifically designated personnel who tend to be outside of the groups generating the documents.  The thresholds for what constitute secret information (or higher) are very high.  Yet people not authorized to classify information do it all the time. 

That creates a situation of inevitable intellectual conflicts or confusions of interests, if not outright cognitive corruption.  It is very easy for one to view the interest of his mission (or unit or armed service) as integral the national interest and then, over time, for that same person to accede to the temptation of conflating her personal interest with those of the mission and unit, previously equated with the national interest.  My particular rationale – right here, right now – for such an equation and conflation of interests would sound like the following (I believe). 

Heck, I only want to protect my country and look out for my brothers-in-arms or fellow public servants.  Jeez, if I make a mistake, the consequences may hurt my compatriots, my branch of the national service and, thus, the country’s policy or mission.  Now come on, people, these stack up to hurting America’s position in the world or, at least, in this part of the world – that is to say: the national interest. Look it: I only want what’s best for my country and the Fredonian people…Frankly, I find this line of reasoning to be pretty convincing as I munch on a burrito in México.  Honestly, I have seen drug-abusing alcoholics spew this non-sense when their blurred judgments were endangering host-country counterparts. 

Now, imagine if I were wearing the uniform of my country or were a foreign service officer but twenty or thirty years younger – not munching on burritos anytime I want to but facing bunches of bullets at any time or burning the candle at both ends to get the job done, neither necessarily of my choosing.  You bet that line of reasoning would seduce me, and quickly.  All that said, I would be feckless – perhaps negligent – if I failed to acknowledge that little things indeed need to be classified.  These are the times and places of military operations, whether they concern village stability or kinetic missions.  Yet these can be safely de-classified after the fact, as Private Manning negotiated carefully with Wiki-Leaks.

Conclusion.  So why was Corporal Manning publicly disparaged, demoted and dehumanized?  Why is Private Manning being tried for charges not too far shy of treason? As far as I can see, because he did not ask permission to do what he felt was right.  Count me as one who agrees with this young man.  Count me as one who envies his courage; I would not have done the same – no matter how neurotic the reasons – at his age.  In closing, I remain convinced that, as this showcase trial (thank you, Graham Nash) grinds on, a timely irony will compel the attention of Americans of many walks of life and vocations: that the prosecution (i.e., the U.S. Army as the face of the U.S. government) – and not the defendant – is on trial here.

Forum '79: Private Manning, everybody's mirror

NOTE WAY AFTER THE FACT (12th June 2017): this letter was written at the nadir of the Obama Admin.'s credibility, at least in my eyes. In retrospect, I over-reacted. Most of the 'grave matters' at hand were resolved justly. As these situations unfolded, I believe the President acted in a way that documented the high content of his character on the NSA-programs and on (now) Chelsea Manning. In fact, President Obama did the right and noble deed by commuting Ms Manning's sentence after seven years so she can lead a full life as she is only thirty now. Bravò to President Obama for his innate sense of justice.


This month, with its news stories, has been overwhelming. So many runs, hits and errors are spinning the scoreboard so silly that President Obama does not have the time to call down to the bull-pen to get a ‘quicker-picker-upper’ warming up. Now is an easy time to judge the President, especially for a fellow like me who came of age during Watergate and the depressing fall of South Viet Nam. So, for baby boomers, we have to remember what Watergate was like.

Yes, many of these behaviors, exhibited repeatedly by this Administration and even by the President, get me thinking, “That is like ‘xyz’ that occurred under President Nixon.” Yet, we have to wait until the full body of information is revealed before conclusions will make sense. It is all too easy to fall prey to the seductive cynicism of imputing the worst. Since there are, as yet, too few dots to connect, I can take those dangling in front of me and make them stick figures or Jackson Pollack.

The currently incomplete information may seem like a political Rorschach test with my interpretation saying far more about me than about the President, at least at this time. Nevertheless, the current array of scandals – or near-scandals taken that way – is troubling. Though I have spent much of my free time watching the hearings around these events, this essay is not intended to review each event. 

We all have our opinions, most quite well informed. Honest and concerned citizens can, do and will differ on each event. The one scandal that I see that could rise to the level of a high crime or misdemeanor under the Constitution, as elaborated in the Federalist Papers, would be the tragedy of Benghazi. My personal odyssey of the migration of my feeling to that belief is neither interesting to you nor within the scope of this essay. 

In any case, I should say that my concern about Benghazi has nothing to do with the manipulated narrative of the “talking points”. As a member of party that invented the ‘spin’ doctor, I have no room to judge. The truly ominous dimension, created by an ambiguous time-line and a lack of its clarification by spokesmen of the Administration, involves the President’s conduct, attentiveness and decisions during the hours of the murder of a gifted diplomat and other high-value U.S. public servants.

These and other questions will be answered. Time and hearings will wrest out into the public discourse the transparency thus far lacking from this Administration. The big difference I have in perspective between now and forty years ago is that I have lived through calumny aimed at me behind my back where I have faced the dilemma of belying nasty things said (and lending credence to the discussion) or moving on and hoping the manure melts away.  

That everyday bane can embitter people and make them defensive, resorting to actions they might not otherwise take. Imagine this happening every day? Imagine this happening every day in an atmosphere of relative isolation yet never being alone in the company of yes-minions? Imagine this happening every day and knowing that, no matter what you say, it will be twisted by some self-interested commentator to make you look sleazy, kind of rotten at the core? I know one thing: I could never hack it. 

As sensational as these news events are, the one big story to me is the trial of Bradley Manning. In short, it is the moral dilemma of our time. President Obama may remain under siege, may be impeached and removed from office or, hopefully, will be vindicated. Representative Issa may be a snake oil salesman with French cuffs, though I do not see it in the hearings. Anti-intellectual con-men like Rush Limbaugh and Sean Hannity may continue to impede my long awaited and cherished conservative renaissance. 

Those babbling bauble-heads of the beltway will sort these things out over time. The issue of Bradley Manning is one that is not Presidential, not military, not legal. It is moral: it squarely rests on each of us as members of a democratic citizenry. My sympathy for Private Manning started the day he was identified as the mother-lode of Wiki-Leaks, when I read in the New York Times a portrait of then Corporal Manning as a deranged homosexual.  That immediately reminded me of President ‘Dick’ Nixon (before he names you) and the smear campaign of Daniel Ellsberg.

As a thoughtless early teen, l took Dr Ellsberg to be some sort of nutty egg-head who was a pussy and went to a psychiatrist. Only later, did I realize that Dr Ellsberg risked a generation in prison to expose a monstrous network of lies that made my America a monster in Viêt Nam, Cambodia and Laos; he kept me out of Hell and I am grateful, becuse I would have served in Viêt Nam.  So, likewise, the good Corporal was caricatured in a manner that is technically against the law.

True to form, I have watched now-Private Manning, far from perfect, act responsibly in the sense that he has never tried to cop a plea or tried to make an excuse but has stood up and stated flatly what he did and why he did it. If nothing else, I now know that a young man’s sexual preference is independent of his manliness and moral courage. We have also come to learn that Private Manning negotiated carefully with Wiki-Leaks to avoid endangering people. 

My next letter, out in the next day or two, will go into the specifics of my defense of Private Manning. That may be tedious and so I would like to keep the more general discussion apart from that more specific, though separating the two runs the risk of killing both Siamese twins; each comes from the same essence and each challenges us as a people with the same daunting moral choices around what to do about information in an information-sensitive (and saturated) but insecure age.

In concluding these thoughts, I would like to touch briefly on Messrs Assange and Snowden. Basically, I see their cases as almost tautological (i.e., of course they are innocent) in view the moral manliness already displayed by Private Manning. Julian Assange is a journalist and Wiki-Leaks is a mass-media outlet dedicated to transparency. This view of Mr Assange and Wiki-Leaks is a value-call; I see this type of transparency as the sure foundation of accountability, the life-blood of representative – not to mention Madisonian – democracy.

The allegations against Mr Assange in Sweden are serious, though I suspect they are bogus. All interests can be served if the Sweden authorities bring the accusers, if they consent, to the Ecuadorian Embassy in London and confront Mr Assange with evidence underlying the charges. If there is enough evidence to warrant a full trial, either:

• re-flag sufficient space in the Ecuadorian Embassy under Swedish sovereignty to conduct a trial and, if convicted, extradite Mr Assange to Ecuador or Sweden, at his choice, for sentencing; or,
• simply extradite Mr Assange to Ecuador for trial with the permission of Swedish authorities to participate in the prosecution.

My gut says that any charges will disappear behind excuses like the evidence is not as clear as previously thought, those making the accusations fear that Mr Assange will be acquitted and seek revenge, etc. 

Edward Snowden is as evident in his innocence, with respect to the Espionage or any other ‘Act’ for two reasons. It is not certain that he disclosed anything that has not been in the public domain. Arguably, studying these meta-data is, as a friend of mine astutely observes, a use information generated by a public utility (i.e., cell phones), if privately owned. There ought not be a presumption of privacy with information already in the public domain. That cuts both ways; it is hard to cry treason for someone revealing the private use of information in the public domain. 

More importantly, Mr Snowden has done Private Manning an enormous favor by being (or appearing on a first look), well, ‘normal’. Yes, we are already hearing about how Mr Snowden inflated his salary (though it is, I suspect, likely reconciled by overtime and bonus income). We will, undoubtedly, hear a lot more about Mr Snowden in an effort to slime his singular courage. It will not stick as easily as it did with then Corporal Manning who was alone in the glare of all the news that is fit to print...

In essence, Mr Snowden takes the poison out of the baseless slur that Private Manning is some deranged, attention-seeking, troubled, magically thinking, neurotic, etc. homosexual desperately seeking meaning. Mr Snowden’s relatively uncomplicated life, thus far (before the smear gears begin spinning), points to Bradley Manning’s heroism and underlines our duty to rise above this scandal in which we are all guilty by eating up this hypocritical baloney from the first slice.

Letter #78: more against drone strikes

Introduction:  this is a comment that follows an interesting and thoughtful analysis in the Small Wars Journal by MAJ Charles Kels, detailing his legal criticisms of the "White Paper" leaked to NBC news on which I wrote a previous letter (#75-two months ago).  

http://smallwarsjournal.com/blog/justice-department-memo-evidences-confusion 

The previous letter argued against this policy from a moral and constitutional perspective.  This letter argues the political folly of this policy; the hypothetical example below should resonate with anyone knowledgeable of the American Revolution. Second link written in 05feb23 was added above on 05jan24.

================Comment in S.W.J.=============

MoveForward,

You make a valid observation on the fact that U.S. authorities would cooperate with their British counterparts. To clarify my perspective, let’s take this discussion one step further. There are four Irish men, suspected by the U.K. of being I.R.A. terror-killers but with no police records, who come to Boston and stay with relatives or friends of their families in four different homes.

Scotland Yard notifies the U.S. authorities that these people are suspected of terrorism and may be in Boston to raise funds to buy arms from Libya with which to kill troops of her Majesty’s Army and innocents nearby the blast site. The U.K. police officials further state that they believe that such fund-raising will be a likely prelude to subsequent violence, though they really do not know exactly when that mass murder would occur.

What goes unstated is that the British government sees that subsequent probability as an “imminent attack”. This assertion may or may not be shared by the U.S. counterparts. Additionally, there may open a perception gap between a British perception of these four men as “high level operatives of a terrorist organization at war with the U.K.” while their counterparts in Boston see them as suspected criminals or gang-members.

Of course and appropriately, the U.S. government immediately pledges to cooperate and does so by monitoring movements of the four people designated by the U.K. So, over the course of the next week, local police and federal agents monitor the movements of these suspects. The U.S. authorities report back that there has been no evidence of a crime or one imminently to be committed.

They have been at group activities but these have involved outings like going to Fenway to catch the Redsox against the Yankees. One activity that had been interesting had been a meeting of an Irish solidarity group, one of many, in a local Church but that turned out to be hosted by the parish priest for raising funds for Irish children to go to parochial schools.

With no evidence, the U.S. authorities state that, regrettably, they can not detain these people and extradite them to Britain. The British authorities press their U.S. counterparts, saying that the fund-raising was a front for getting money to buy arms. The U.S. law enforcement authorities state that they are unprepared to suspend habeas corpus but pledge to continue monitoring these people for the next two weeks, at which point, the four men head back to Belfast.

Scotland Yard realizes that, under current extradition treaties, it can not send in the Royal Marines or detectives to abduct these suspicious people in Boston with no legal charges pending in either country. So now we have, from the British view, a sense of imminent attack (and consistent under the white paper); an unwillingness displayed by the U.S. government; and, infeasibility of capture.

The British believe that if these men with these funds return to Ireland, that mass murder will likely, but not certainly, ensue sometime over succeeding months when they have purchased weapons from Libya. So, the U.K. government launches surveillance drones and they buzz around South Boston for two weeks, engendering (incidentally) fear among local residents.

The only time that these four suspects are in one place long enough to launch a strike and when they are not at venues – like baseball games, Sunday masses, Pops concerts, etc. – with high concentrations of innocents is when they are asleep in those four townhouses. To prevent an attack on the homeland, these authorities authorize a night-time strike, to minimize civilian casualties, and the rest of the example ensues.

Now all of this discussion on my part in no way implies that the United Kingdom would ever do something like this action nor does it indicate any sympathy with these men if, in fact, they are opportunistic gangsters. The point is to create a scenario in terms more familiar to us that would envision these circumstances to place us in the position in which the Pakistanis find themselves.

In this scenario, the United States would likely have means to disable these drones, as you observe. So, that part of the hypothetical does not correspond well with the likely reality. Nevertheless, citing that fact does not really address the underlying question put to the reader: ¿how would Americans react were such an act to occurr on their shores at the mortal expense of many innocents who were fellow citizens?

Additionally, the Bay State and the Pakistani tribal regions are two very different places. It might be conceivable (if I had the technical knowledge to argue it) that the topography and remoteness of the tribal regions, the number of fighter aircraft available and the ability to sustain them could preclude such a defensive option by Pakistan, even if it wanted to capture or kill these militants.

Again, MoveForward, many thanks for your thoughts.

Very truly yours,
Ned McDonnell.
Peace Corps-México.

Letter-77: nested autonomy for greater Kurdistan; next steps for Syria

Introduction: this is a response in a dialogue debating a proposed counter-insurgency program in the area of Village Stability Operations in the Small Wars Journal. This idea of nested autonomy (a region shared by four nations inside of which Kurdish people would move freely as dual citizens of 'Kurdistan' and the country in which their part of Kurdistan currently lies) has been floating inside my ahead for years. Developments in Syria may make the time of experimentation propitious.  

http://smallwarsjournal.com/jrnl/art/irregular-warfare-network-warfare-and-the-venture-capital-green-beret
On Syria, the time for some type of intervention may be approaching; but in Jordan, Lebanon and Iraq to train local policing for future use in Syria.  Any extension into Syria would be for facilitation of the delivery of humanitarian supplies and the imminent entrance of peace-keeper from other Muslim nations outside of the region.  

============REMARKS=============

Guys,

Come on.  I was answering a straight-forward question on how I would assess this possible downside and unexpected consequences as well as envision ‘how’ such a program for entrepreneurial development would manifest in current hot spots.  Imputing arrogance and ignorance to me expands the scope of the discussion far beyond the answer of a straight-forward question on application only, not appropriateness; I think you two know better than to shift the discussion to a platform for emotionalism.  In a sense, in any discussion of the appropriate use or projection of power into sinuously sensitive situations to the U.S. national interest, I would be one person among many expressing what the government should do.  Needless to say, my opinions on what to do would likely be quite different from what I answered to LTC Martin.  But, I think you know that. 

Dayuhan, I take specific difference with the issues of Kurdistan and Syria. First Syria, since Kurdish nested autonomy is largely irrelevant to this article, to the discussion and to my previous preliminary answers to LTC Martin’s legitimate hypothetical questions.  Syria may well be a location for an SOF intervention.  As one person among many, I would propose that, if we consider the application of military (specifically SOF) power, arguments should focus on the swelling refugee communities in neighbouring countries with a view toward protecting our ally in Jordan as well as two more fragile and tentative democracies of Iraq and Lebanon.  The skills learned by the SOF in current police training in Afghanistan, as mentioned by ADM McRaven, could prove to be transferable and helpful.

That program could not only seek to stem the intimidation that often works with radicalization of communities (to muzzle the moderates), but also to train the core of a civilian force to re-enter Syria and assume the policing function.  Additionally, I would argue for a limited intervention into Syria itself, with explicit timelines and force levels, to assure delivery of humanitarian supplies and to facilitate a longer-term intervention of peace-keeping troops from disinterested nations with substantial Muslim populations, preferably outside of the region (Malaysia, Indonesia, Tanzania, Morocco, etc.).  In each case, the conditions would have to be propitious; there would have to be a desire for peace across all parties (including the U.S.), and a willingness to honour the intervention as a short-term, impartial facilitation only.

Now onto nested autonomy.  The Kurdish region of Iraq thrived, despite limitations of isolation, etc., during the years of the no-fly-zone and after its “liberation” (their words, not mine) by President Bush.  Apparently, a cultural autonomy is emerging among the Kurds in Kurdish regions in Syria.  The Iraqi region could become a vanguard for the rest of the country, or it may lapse into a civil war with with the Arabs, predominantly the Sunnis.  Part of the problem lies in the fact the Coalition Provisional Authority’s Transitional Administrative Law (53A), issued via fiat by AMB Bremer nine years ago, planted those seeds of contested territory (e.g., definitely Kirkuk, probably Mosul) and remain in force under the current Constitution (138). 

For various reasons, the four nations directly involved in the Kurdish question do not want to see an independent Kurdistan, something that would be consistent with self-determination.  So the world is facing the frustration of one of the underpinnings of the nation-state model, itself only about three or four centuries old.  The dilemma could be (not is) that if one country grants independence to its Kurdish population, it will become a staging area for the forced rebellion, secession and civil war of the other three.  The history of Turkish and Arab oppression (in Turkey and Iraq) is well documented.  The lot of Kurds in Syria may now be one of cultural autonomy but it is hardly enviable.  Iran?  Know little about that. 

This autonomy seeks to balance the national security and resource interests of the dominant host countries with a sense of Kurdish identity.  Such a tentative peace may be arising now in Turkey.  It would take some time to negotiate and such taxing efforts could easily fail. Nevertheless, with the erosion of the nation-state paradigm in viewing many of the conflicts taking place around the world, something that balances the interests of all eight parties (four nations, four Kurdish communities) may avert future bloodshed and, in the example of Iraq, permit the prosperity of three million barrels a day of crude pumped out of the Kurdish region for that lovely region, really one of the most beautiful I have ever seen, and convey benefits to the rest of Iraq, as stipulated by under the country’s Constitution (108), a document which the Kurds themselves approved. 

In negotiating this peace, the U.S. could play a role in aiding the implementation, if the country were invited and chose to so.  The parameters of such an intervention, beyond my imagination at this moment, would have to be negotiated and acceptable to at least to the nine key parties (eight previously mentioned plus the U.S.).  Other stakeholders would likely have a say.  Hard to do?  For sure.  Impossible? No.  Implausible? To be determined after exploratory discussions.

Ned.

Letter / Class of '76: there are tears tucked inside those years.

There are few sensations more sublime, at least to me, than reflecting over losses incurred-but- not reported, loves lost or, more frequently, loved ones lost.  These interludes happen infrequently and they are not to be indulged lest one be trapped in the past, locked away from the future.  But they do stand the test of time; indeed, they are the test of time.

For me, it requires a moment when I am tired and not really thinking.  Surprising as it may seem to you all, my mind, if anything, is too active, buzzing from one thought to next, like a puppy chasing four bouncing balls at once.  No, this is not creativity but its mere precursor.  Creativity takes discipline, the willingness to cut away that which does not belong; not an easy thing to do.

That explains the small number of truly creative people I know or have ever known; less than ten out of thousands.  Yes, I really should be better at harnessing these careening and chaotic thoughts; but I dare you to try to discipline a tadpole.  Once in a while, when that momentary repose does settle in, the right confluence of other sensations occurs.  Almost always involves music.

The music involved can be the Grateful Dead, Gustav Mahler, Glenn Miller or the top-forty.  It has to have its own trace of melancholia; the lyrics often do not really matter, but they often do.  Yet the voice is everything.  That subtle under-tow of sadness, as part of the daily fabric usually expressed as small-talk or other kinship in code, is the bait; the moment of repose is the hook.

This sublime set-aside in time, about three minutes long, occurred today, not more than ten minutes ago (that is to say: before the rough-and-jumble draft of this letter).   The song was some Mexican popular love ballad.  Sad-sack songs are a national obsession down here, often by men who lost the loves of their lives (after likely cheating repeatedly on them).

All irony aside, the rhythm of regret and a sonorous but somber voice transported me into one of those breaks from reality into the deeper meaning of time; one of those breaks from the dreadfully limited and normal person that I have become or turned out to be.  That statement is not meant to sound quite as depressing as it does.  But life-long unmarried or long-time divorced people often go through this stuff.

There is just too much time on our hands not to. Like it or not, travelled or provincial, well read or pushing our way up the next mountain, we are simply not completely engaged in the world.  That is not a terrible thing but it has its moments of repose.  Caught in the moment of one of these songs or in the midst of an emotionally evocative film (e.g., Letters from Iwo Jima), the melancholy is released.

Its dominion is short in time, deep in remembrance.  As I listened to that top-40 ballad this afternoon, I gave in and closed my eyes.  I thought of my only ‘blood-brother’ in grade school, struck by a car and killed just after I went away to school, unleashing a melancholia that took two decades to overcome.  I thought of a cherished schoolmate and another childhood bud -- good friends and (young) men, both – who took their own lives leaving us to wrestle with the living koäns of deaths without context.

Then came my college sweetheart; the one whom I “knew” did not love me in return; and she almost certainly did not.  When a drunken teen hit her car head-on and ripped her beautiful form -- her visage chiselled by God himself -- to shreds in less than a second, just a week out of college for me, I felt much like Saint Peter (Matthew 26:75, “And Peter remembered the word of Jesus, which said unto him, Before the cock crow, thou shalt deny me thrice. And he went out, and wept bitterly.”). 

I never had the courage to tell her I loved her.  Love unexpressed (not unrequited) is the heart's worst treason.  Then came in the images of my beloved parents, each in their prime, happy with themselves and with their life’s creation: a son and a daughter….and a grand-daughter or two.  In each case, I felt as if, just for a moment – the song lasts only three minutes – that each was not only present before me but present in my flesh. 

Just for a moment, now; I had felt this sensation before; mournful of the loss, mindful of their needed presence, even today, years later.  The last one was a surprise.  But there he was; I felt a little shakey with this one.  This reference had no direct root in memory and little, even, in fantasy.  Yet my high cheekbones felt a little itchy, as did the jaw-bone; just slightly, hardly noticeable anymore.

The rocking chair felt comforting to my lanky frame; these old bones are weary.  Wait, I am only in my mid-fifties.  She was still there, in my mind’s eye, Ann was.  How I still remembered her on those cloudy  and solitary days, walking alone through garden or near the calm, wise, forever river.  Somehow that artery of the Republic was my connection, 

Yes, the last connection to the ever-beautiful, forever young Ann, as she ran, constantly stumbling forward in the encircling, white dress, laughing to see me, her bonnet half undone, her cinnamon hair showing, flowing.  Her modesty untouched as she laughed without thought and looked up at me, a kiss in her smile -- felicity across her eyes.

¡Guess I am glad she can’t see me now!

This quiet song from a land from which slave-owners and others prone to empire had defrauded a half of its territory and this rocking chair – they felt right, just right.  The strain and the eternal sadness of my soul ripped asunder more-so than even my prostrate country with the blood, our blood, six inches deep – North and South, East and West, man and woman, parent and child, negro and white…

Ah, to have this blessed rest for a moment, for this ballad, on this rocking chair.  Only now do I realize how stooped I have become, what with the yoke of leadership – ten pounds too heavy – always, always on my shoulders, without reprieve, with abating resilience.  I looked over the big yard in front of me, onto the river.  This river is a little river; perhaps fitting as I can only think about the little one lost to typhoid running down the hall upstairs, his light footfalls almost tapping out "Daddy!" in Morse code.  I smile with warmth.

The song ended. I opened my eyes and jotted down these thoughts.  Time to go back to work.

Letter #75: The D.o.J. White Paper for Black Deeds

Introduction

On a libertarian lark, I thought I would read the ‘White Paper’ obtained by NBC news that justifies the killing overseas of U.S. citizens by drone strikes on the following grounds:

• imminent threat of attack;
• lack of feasibility in capturing the individual on time and at low risk; as well as,
• execution of the non-judicial execution in alignment with the four concepts underlying laws of war (i.e., “necessity, distinction, proportionality and humanity”).

These criteria are applied in the context of the nation’s right to self-defense against an enemy with which we are at war.

Summary

The paper is a well-reasoned argument in favor of the current assassination campaign in which President Obama graduated President Bush’s limited but accelerating use of drone strikes into full-blown drone strike warfare.  By reference, President Bush’s policy was limited to highest-ranking operatives who had evaded capture repeatedly and were conducted in the field of battle or in Pakistan, with the prior consent of that government. 

This White Paper's argument tries to lay out a legal justification for the policy as directed toward American citizens who have joined al-Qaida, the Taliban or unspecified “co-belligerents” (together ‘al-Qaida et al.’) and who are “senior operational leaders” continually planning attacks.  For the evident efforts that this paper undertakes to weigh the moral ambiguities attendant to this policy, the Administration deserves credit.

Nevertheless, this White Paper, apparently a readable summary of a legal argument of some fifty pages, reads like a product of someone who knows already what his conclusion is and then reverse-engineers a legal and scholarly argument to permit a policy of extra-judicial execution of identified individuals as acts of self-defense committed during war rather than as assassinations.  The subtlety employed overlooks the fact that drones do not make America’s policy and actions righteous; decency does. 

Disclaimer

Now, obviously, I may be very wrong in my conclusions as I am not trained in the law and have two certain limitations: a possible inability to detect references or understand special (and universally agreed) meanings of various terms as they relate to the law.  Combining these limitations with more detailed explanations and discussions in the parent-treatise may undermine the logic of the arguments that I present.  Nevertheless, my reservations with the thesis argued in this White Paper include the following:

• vagueness of definitions or in applications of key terms;
• assumptions made about the centrality of decision-making power; and,
• the uncircumscribed nature of the powers enumerated.

Critique of the Legal Framework

Three statements basically underlie the thesis of this paper.  Thoughtfully vague and devoid of clarification of key terms, these statements permit a broad assumption of powers (including the delivery of due-process) by one or more individuals, thus far not vetted by the Senate, uniquely or each presumed to be an “informed, high-level official of the U.S. government" (pp. 1, 6, 7-8, 9, 14, 16). These statements argue that there is:

• no minimum standard specified on what allows a strike to be ordered (pp. 1 & 16);
• little to no legal or judicial precedent (p. 4); as well as,
• no judicial “forum” (or standing) in the making and carrying out of wartime decisions and activities (pp. 7 & 10).

Integrating these “predicates” into the framework outlined above is a peculiar reliance on state laws, criminal statutes and judicial decisions relating largely to domestic crime (all of which are subject to due-process and judicial review) to justify “wartime” actions of national self-defense (as opposed to assassination) that apparently preempt that same judicial accountability (inter alia pp. 9-13).  These sweeping powers are then vested in one individual, perhaps more, who (or each of whom) can decide alone the targets of lethal actions, primarily drone strikes, without reference to:

• what and how much evidence warrants the killing of an American citizen (or, perhaps, his assassination, in contravention of Executive Order 12333);
• how “core” a member of al-Qaida et al. is and how actively engaged this targeted citizen is;
• exactly what defines membership in, or being a co-belligerent of, al-Qaida et al.;
• what constitutes a host country’s inability or unwillingness to suppress an “imminent” threat or attack against American citizens; as well as,
• what standard of probability and immediacy meets the level of “imminence” of attack (to be discussed in more detail).

Furthermore, I find no definition of just how high a level of authority this decision-maker has – or who might be eligible – to qualify as an informed, high-level official of the U.S. government.  Additionally, the White Paper appears not to cite any precedent of such an official assuming and discharging these extraordinary and extra-judicial powers on a routine basis.  Nor are there references to precedents of such an official exercising these powers without the advice and consent of the U.S. Senate on his fitness to discharge these responsibilities. 

Finally, this individual is a specifically deputized human being, vested with a license to order the extra-judicial execution of American citizens without a trial or formal outside review; that is, the informed, high level official is not a mythic being used to establish a standard of conduct, like the ‘prudent’ man or ‘reasonable’ man.

While the logic of the argument really is internally consistent and puts my reasoning powers to shame, the whole rationale strikes me as so much constitutional casuistry, as if natural law were some type of bonsai tree fit to be bent and twisted to suit the aesthetic conveniences of the day.  On the other hand, as is familiar to us all, “make no mistake”: we face serious and perhaps mortal threats to our security.

Reality of the Threat

The Constitution probably never contemplated anything like the threat of gangsters like these suicidal sociopaths in the modern world.  Yet, the great national contract was less than twenty years old when it was applied to crush the Barbary Pirates in the 1800s in a remarkably similar threat though quite different in its degree of lethality.  It is my conviction that, as cumbersome as the Constitution and its requirements can be, we should think very deeply before dispensing with these deliberative constraints.  Here’s why.

Casuistry and Consequences

The insidious part of this monument to reason without conscience is the failure to define key terms; a peculiar reliance on Congressional intent but not on Congress itself; and, a preclusion of judicial involvement in these matters “of war”, notwithstanding the involvement of American citizens.  That is to say, a few people in the White House make these decisions with little transparency and no accountability. 

Additionally, if the argument in this White Paper holds, it will require but a baby-step to start assassinating American citizens inside the United States.  Why? Surely, if someone poses an imminent threat as an enemy in some remote mud-hut village, how much more urgent would this identified gangster’s threat be, were he traipsing around Tribeca, Texarkana or Tacoma. The White Paper fails to define three key terms – nor does the larger parent treatise, I suspect – implicitly to delegate an unacceptable amount of latitude to unaccountable civilians.

Analysis of Key Terms

“Imminent”.  For understandable reasons, the White Paper relaxes this definition from immediate and certain to likely and probable, if given the chance.  The problem is how imminent is imminent? The paper argues that imminence entails ‘continual planning’ of attacks against the U.S. by a senior operative leader of al Qaida et al., though, in reality, many drone strikes are targeting mid-to-low level thugs. 

Now what does ‘continual planning’ or ‘operations leader’ really mean in a noticeably flat organization like al-Qaida and its franchisees in murder as they remain open to new targets of opportunity?  Beats the livin’ scheiße out of me.  So who determines that an American citizen is hatching these murderous schemes?  (They are being planned, without doubt.)  How often is “continual”?  Every day? Every week? Once in a full moon?

“Informed High-level Official of the United States Government”.  This is probably the individual who determines subjectively, likely not adhering to any minimum or codified standard, the level of planning to be ‘continual’ enough for the threat of attack to qualify as imminent.  It may be that only one person makes the decision, by selecting the weekly targets for the in-camera trial with its show-and-tell “due process”, that:

• a particular American citizen is part of the enemy;
• that designated citizen is a senior operational official; and,
• the President should order the drone-flown elimination without meeting a publicly accountable burden-of-proof. 

Now there are well documented reports that there is an actual committee in the White House that convenes weekly, which implies some flexibility in the timing required to make and implement decisions.  Also open to question is the presumption of innocence since the targeted citizen has a made the "cast of killers" for the week.  The ambiguity is disconcerting.  Now, one asks: ¿how high an official is this well-informed, high-level official?

Oliver North was not a very high official.  Remember the actions he basically instigated unilaterally?  Some were great.  Others went too far, nearly discrediting the Administration of President Reagan.  With more than one person making the decision, the unilateralism of LTC North and its fall-out might well have been avoided. 

Is there a standard for ‘informed’?  This argues to the standard of information needed to justify the killing, with some implicit burden-of-proof.  But what is it?  Who is designated as 'informed'?  I do not mean to be splitting hairs and sounding petty, which, of course, I am doing; but people’s lives, not to mention our exceptionally American social contract, are riding on these annoyances.

“Infeasibility of Capture”.  This ambiguity should be evident to anyone who felt that the shooting of an unarmed Osama bin Laden, in violation of a third nation’s sovereignty, was questionable from the perspective of the rule of law.  The White Paper takes pains to spell out infeasibility.  It states that, under the use-of-force authorization from Congress in 2001 and international law of war, temporary intrusions into neutral nations are permissible if necessary to pursue and contest the enemy.

Still, the vagueness invites future license and relaxation of ad-hoc, perhaps unwritten, standards of infeasibility established over coffee, donuts and baseball cards.   How many U.S. soldiers have to be endangered justify a drone strike instead? One, two, ten?  How unwilling or unable does the neutral government have to be?  Who decides another government is unwilling or unable to mitigate the threat in time? 

What is the collateral damage historically of Special Forces operations to capture or (if necessary) shoot a terrorist as opposed to a drone strike?  What is collateral damage?  President Obama conveniently defines away over half of the potential collateral damage by defining a contested area broadly and combatants even more so (i.e., all military age males).  Well that makes killing easy, doesn’t it?

Other Elements of Concern

Two other elements disturb me.  First, the White Paper conscientiously documents Congressional intent on a wide array of statutes.  Instead of consulting and interpreting previous Congressional intent to permit future non-judicial executions, why not go to Congress today and find out what it thinks before yanking the joy-stick? 

Now the Congress has to face up to its complicity in this current policy in its allowing the President to hide behind a ten year old authorization to use force, which has gradually evolved into a cross-border imposition of martial law. Perhaps, it is time to re-visit that out-of-date Congressional authorization since many people believe its execution has not been handled well in the past decade; during that re-visit, perhaps, Congress could muster up the courage to insert itself back into the war-making process. 

Doing so would not be that difficult, as I will propose in a moment. Arguably, assassinations are different than conventional warfare where uniformed soldier (sadly) shoots uniformed soldier. And therein lies the other disturbing element of this White Paper.   By framing a non-judicial execution of a potential mass-murderer – and definite traitor – as part of a war, the treatise justifies the exclusion of formal due process and judicial review altogether. 

Everyone understands that time is not permitting to have a full court trial, with no defendant likely to be present in any case. Nevertheless, to exclude another set of constitutionally impartial eyes (within the limitations of individual personalities) seems extreme and not in accordance with what the Philadelphia Convention was seeking to achieve with the Constitution it drafted.

That Damnable Reality of Terrorism

So, while these criticisms in this essay may sound good to some people, we need to remember that some very nasty people do want to kill as many of us as they can; unfortunately some of those gangsters (often suicidal sociopaths) are Americans.  We cannot dither over fine points of the law and risk another 9-11. 

Nevertheless, the over-reaction, possibly embodied in this policy of targeted killings, where drone strikes kill something like four or eight people for every alleged terrorist, may, in actuality, be elevating the likelihood of, or at least the hateful desire for, just such a day of ignominy as was 9-11. 

Suggested Re-Balance between Self-Defense and Rule of Law

Among many things, we learned from Benghazi that, short of withdrawing from the world, we cannot protect every target all the time.  So what to do?  Here is what I propose.  Admittedly, this proposed idea ‘adapts’ (i.e., bends) the Constitution.  Hopefully this proposed procedure remains consistent with its deliberative spirit.

1. The weekly ‘baseball card’ meetings continue as they do now, keeping in mind that that this current schedule implies that everything is not hanging on a moment’s notice.
2. If there is an imminent threat that the Administration believes to be real, it orders the Joint Chiefs to draft a plan of capture.
3. If the military commanders deem such a capture as not realizable, the Chief of Staff of the Army, Marines or Air Force clarifies in writing why the capture is  not  feasible as precisely as it can, as concisely as possible.  
4. If the military leader is not willing to say this in writing, then a mission to capture the terrorist is developed by his second-in-command.
5. Upon receipt of the plan of capture, the President orders preliminary preparations to executed, pending a live mission.
6. Upon receipt of a signed military plan or opinion-of-infeasibility, the President then immediately takes that document to, and consults with, the two ranking Congressmen on the Intelligence Committees and The Foreign Affairs Committees (eight people in total).
7. If five of these Congressmen or duly appointed deputies say yes to proceed, then the Administration liaises with the Supreme Court for a warrant for the arrest of the American citizen for treason and / or probable cause in a conspiracy to commit mass-murder.
8. Upon consent by the Supreme Court Justice that the evidence is credible for such charges to be tried in a civilian court, the Administration then contacts the host government, where the mass-murderer is hiding to notify it that the U.S. government will imminently make a public announcement concerning the arrest of a certain American citizen on that country’s soil.
9. Immediately after contact, the arrangements are set up to monitor the movement of the targeted individual and to target him.
10. As those arrangements are made, the U.S. publicly announces that the following person is (or people, if approved, are) wanted for treason and conspiracy to commit mass-murder of innocent U.S. citizens.
11. The person or group has twenty-four hours to surrender unarmed to a host government agency; thirty-six to surrender unarmed to the U.S. Embassy or consulate.
12. In that announcement, the United States government will also advise people living in areas near to the targeted person(s) either to persuade them to surrender; turn them over to authorities (if feasible); or, to distance themselves to minimize accidental injury or death should the U.S. exercise its asserted right to eliminate this citizen.
13. The U.S. government clarifies that, after that 24-36 hour waiting period with no surrender and based on the evidence documenting the warrant, the targeted individual(s) will be judged guilty and will be 'removed' from civil society 'dead or alive'.
14. The waiting time permits people in the target zone to act in a manner best protecting themselves.  In the mean-time, drone-flights would fly to monitor the whereabouts of the targeted terrorist.
15. If the person surrenders or the people surrender, they are transported to the United States to face a criminal trial, through the criminal courts for civilians.
16. If no one shows up, the capture operation or the drone strike is carried out, as documented previously, in a manner consistent with the four principles underlying the laws of war.

Closing Thoughts

In closing, I would prefer to see this revised standard apply to Americans and foreign nationals alike.  In all honesty, I would rather find a better way of neutralizing this threat.  The procedure described above would take less than a day to complete (from picking the possible target through the public announcement and initiation of the mission). 

The benefit of this idea is giving the other branches of the U.S. government the ability to consent to the use of lethal force outside of the country (at least for now).  Additionally, the burden of having to present a case to the other two branches would likely deter many of the proposed executions from ever going forward.

As we have seen, the frequency of these drone-flown assassinations has increased in tempo, indicating a possibility that, as people become used to ordering the execution of others, their inhibitions decrease, freeing a propensity to do another ‘surgical’ strike all over again, but even sooner the next time around.  Despite the obvious and incontestable decency of President Obama, the reluctance to order non-judicial executions is apt to decline over time as he gets used to ordering them.