Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
It has not made a lot of noise in the main stream media, but recently, an important case filed jointly by the ACLU and the Center for Constitutional Rights challenging the Department of Justice and the Obama Administration’s drone war was argued in front of Judge Rosemary Collyer. That case is Anwar Al-Aulaqi vs. Panetta, et al and it was filed in the United States District Court for the District of Columbia in 2012. You can find the filing here.
What makes this case so important is that it was filed on behalf of the estate of a 16-year-old American citizen who was killed by an American drone strike, along with other victims, in Yemen in 2011. Recently the United States Department of Justice presented a defense that is quite striking.
“Another thing you should know is the specific defense the government is mounting in this case. As the New York Times reported, the Obama administration’s Deputy Attorney General Brian Hauck first declared that courts have no right to oversee executive-branch decisions to extrajudicially assassinate Americans. He also insisted that the White House already provides adequate due process for those it kills, prompting federal judge Rosemary Collyer to point out that “the executive is not an effective check on the executive.” The fact that the judge needed to issue such a reminder speaks volumes about an administration utterly unconcerned with constitutional governance.
But perhaps the most important thing to know about this case is what the government is arguing about the law itself. In defending the administration, Hauck asserted that such suits should not be permitted because they “don’t want these counterterrorism officials distracted by the threat of litigation.” ‘ Nationofchange
Yes, you read that correctly. The Department of Defense is arguing that officials should not be bothered by having to defend themselves against possible illegal actions! Does anyone here find that notion a little arrogant? I have to commend Judge Collyer for her succinct reminder that the law does not consider any branch of the government is a proper check on itself.
The author of the aforementioned Nation of Change op-ed suggests that President Obama is taking a page out of former Vice President Dick Cheney’s playbook by mounting this kind of legal defense to what many consider an extrajudicial killing of an American citizen. Not to rain on Dick Cheney’s parade, however, I actually think this mentality actually harkens back to President Richard Nixon who basically stated that if the President does it, it must be legal.
While this case is still ongoing, I consider it important to shed as much sunlight as I can on this kind of outrageous Executive branch over reach. It is one thing to authorize possibly illegal spying, it is quite another matter to order the killing of American citizens without judicial due process.
As Scotusblog described the filing of the lawsuit, “While the lawsuit seeks a sweeping judicial condemnation of the drone policy, it specifically seeks to have a court rule that Panetta, Petraeus, and the other two officials “authorized and directed” the killing of the three citizens specifically, that at the time of the killings themselves none of the three presented “a concrete, specific, and imminent threat to life,” and that there were other means short of killing them to deal with any such threat. None of the three at the time, the lawsuit asserted, was directly taking part in “hostilities within the meaning of the law of war.”
Is the request that the Executive Branch and the Department of Defense and the CIA should actually follow the law and the Constitution, asking too much? Do you think that this case has a chance to be successful? Will it eventually reach the Supreme Court and if so, do you think the Supreme Court will rubber stamp this taking of an American citizen’s life without due process? How would you rule?