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?
Obama Orders Children Murdered / Maimed
http://www.infowars.com/obama-orders-children-murdered/
The U.S. Government is murdering / maiming many thousands of men, women and children with drone bombers
And when the people stand up against the U.S. Military Murderers they are called terrorists
“Obama has asserted the right to kill any citizen that he believes is a terrorist” — Prof. Jonathan Turley, George Washington University Law School
They are murdering American citizens – they will murder anyone, anywhere in the world
“American Drone”
War Crimes Tribunal Looking to ARREST Obama & Bush
During the Nuremberg trials of some of the main Nazis, the chief American prosecutor, Robert H. Jackson, stated: “To initiate a War of Aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other War Crimes in that it contains within itself the accumulated evil of the whole.” Also established at the Nuremberg trials, “just following orders” is no defense against war crimes. “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”
All the U.S. Government Invasions are illegal as were the Nazi Invasions. They are crimes of aggression. A crime of aggression at Nuremberg was to be the supreme international crime. Washington DC = Nazi Berlin. It is time for Nuremberg on the Potomac War Crimes Trials. “War Crimes Prosecutors appear to be out for the arrest of George Bush and Barack Obama. Lawyers file arrest warrants for those they claim are “murderers on a large scale.” As Hitler, Obama, Biden, Bush, Cheney and their co-conspirators are Supreme War Criminals. They and all who have tried to provide cover for them have blood on their hands.
The governments attempt at making you afraid, very afraid apparently works on some people. Several on this post seem to believe their lives are are risk unless our government kills people they deem threatening. How absurd.
So if a government worker can break the Constitution and kill someone he deems a threat, can I?
What is the difference?
If we don’t stop the madness now then there will be a day when drones fall on Europe, Mexico, Canada, or the U.S. Our mindless droping of drones is bringing this day closer.
I have a simple question to those who excuse President Obama’s extra-judicial killing of a sixteen-year-old boy — American citizen or any other citizen — by claiming that he meant to kill someone else and simply killed the “wrong” person by mistake:
“How many negligent homicides does President Obama get to claim before he must restrict himself to only the murders he actually intends to commit?
As I understand the law, a killer only gets one killing, whether murder or negligent manslaughter, before his arrest, indictment, trial, and punishment. I never heard of any law that gives a killer as many kills as he wants without ever having to answer for the first one, let alone an indefinite series of them without limit.
Furthermore, crying “War” at every rhetorical opportunity does not mean that a state of declared war exists between the USA and any other nation. No such state of war exists or has existed since the last time the USA declared war in 1941. Post WWII, the USA has not had a legal justification for any of the armed conflicts it has allowed its President to undertake as a personal prerogative. And “wars” against ideas (Communism), asymmetric military tactics (terrorism), economic circumstances (poverty), and narcotic substances (drugs) do not exist either. Uttering the meaningless word-like noise “war” does not constitute an actual war nor establish any legal defense for simply killing and destroying because the official mood in Washington, D.C. seems to call for more ruinous military blundering in the service of corporate profits and campaign contributions.
In other words:
The Constitution does not vest in the President the authority to violate any laws whatsoever. Not in time of peace. Not in time of war. And certainly not in any time of peace that the President wishes to personally consider a time of “war” for purposes of usurping ever more power into his own individual hands. No more presidential “wars” of whim. Way past time to end them and the misery they bring to so many millions, worldwide.
It is time for a Revolution. It is the only sure way to restore the Constitution.
This whole discussion sends chills down my spine. Our constitution has disintegrated beyond belief in my lifetime. And we seem to be wiling to sit idly by and let it happen. I pray that this lawsuit does have some success, but I don’t have much faith in any of our institutions. It’s sad to see so many people who think that extra-judicial assassinations of US citizens based upon theirs association are just fine. Have any of you read the constitution lately?
randyjet,
A lot of unConstitutional things have been done, in wartime and outside war.
We are not at war. If we were at war, there still would be no excuse for murdering U.S. citizens without trial. None of these people was engaged in violent action when they were assassinated.
Congress hasn’t had the nerve to declare war since the 1940s, so it’s not happening. In times of war or emergency, following the Constitution is more important than ever.
If Pound was tried for a capital offense, and found guilty, then he may have been executed. He wasn’t. There’s no excuse for state-ordered killing without trial. On the battlefield, or in self-defense, it may be excusable. We aren’t talking about those conditions, here.
No trial? No emergency? It’s murder.
I don’t give the King permission to murder people in my name.
…. just disregard the correction above….
S-O-R-R-Y!!!!
The article above should start with the “Russian Constitution” …
Mea maxima culpa….
Some 45 years ago, in a conversation with a friend, a Sociologist by profession, I stated that the US Constitution is “the best in the world” and its protection of the individuals and society is absolute.
He smiled at me and suggested that I read the Russian (Stalin’s) Constitution to discover that it is replete with lofty rules and ideas as the US Constitution is.
A Constitution needs to be constantly guarded, well kept and groomed by well educated citizenry, lest it is doomed to be transmogrified to a Russian-like one!
In less academic hues, Khaim Laskov, the British-educated Israeli Chief-of-Staff, used to exhort his soldiers that “a soldier who ‘sleeps’ on his rights is destined to lose them all!”
(In those days, almost all the Israelis were ‘Soldiers.’)
Well, people of jurisprudence, what need to be done in order to have our stolen Constitution back?!!!
“Think that all US citizens who were in Germany have cause for legal action when they were injured or killed by US bombings during WWII?”
Hardly, but the three named in the lawsuit were not victims of random bombing, they were specifically targeted.
Bill H you are basically saying the US is damned if it does target specific terrorists, and damned if it kills others along with them. There is a good reason that most of the US citizens take this kind of criticism with a collective yawn. If you don’t hang around with terrorists, you have nothing to fear. As I said, when the US kills US Muslim students on spring break enjoying the beaches in Afghanistan, or blowing up Americans in Europe, THEN there will be something to get upset about.
bfmike The government does NOT contend that they can kill anybody anywhere anytime. They DO say that if there are NO other legal options available, they have the right to kill those US citizens who are helping to kill US citizens. Let me know when drone strikes hit western Europe, THEN I will be upset, NOT before.
Bob, you seem to forget that the US was going to try and hang Pound after the war. He was taken prisoner and kept in a cage for a few months. He got out of being tried and hung for treason by influential friends and feigning insanity. So I think that killing him would have been perfectly legal if the USAA decided to get him. I also remember that the Brit who was Lord Haw Haw doing radio broadcasts for Berlin radio was tried and hung after the war. He got exactly what he deserved. Too bad Pound missed his date with the executioner.
@Arthur Randolph Erb ” kid was in an active war zone associating with terrorists who are in active combat with the US, they have no leg to stand on.”
I think your analysis is pretty good if there is a declared war and the killing takes place on the battle field and the ‘kid’ is carrying a rifle or weapon of war.
But I am not even sure what an ‘active war zone’ is. There is no declared war. And the ‘kid’ does not seem to have been a combatant or even a remote threat in any case.
Give that we can distinguish this case from cases where we are actually at war, it seems to me that we really do need to work through this issue both with political discourse and through the courts.
Under the present system, I see nothing except the good will of unnamed government officials that prevents government agents from murdering any citizen anywhere for what ever reason the government chooses.
That cannot be the right answer – politically or judicially.
Yes, it would have been unConstitutional to kill Ezra Pound during WWII. Was he shooting at anyone? Doubt it.
U.S. citizens are guaranteed trials. No exceptions, unless there is immediate danger to other citizens.
The U.S. is also not in a state of war. Congress declares war. That’s in the Constitution.
Sorry, I’m not quite terrified enough of these bogeymen, to throw the Constitution away and give unlimited power to the Executive branch.
I’m also not authoritarian enough.
Arthur, how do you know the kid (yeah, 16-year-olds are still kids, no matter how scary you find them), was “associating with terrorists?”
And how was he in “an active war zone,” when we’re not at war with Yemen and al-Awlaki was sitting in a cafe when he was killed?
Also, you’re not seriously comparing al qaeda in Yemen to Hitler’s army in WW2? Really?
LJM From what I have read, the kid was NOT the target of the missile, but the persons he was with were combatants and targets. I will get concerned when the strikes start killing US Muslim students on Spring Break enjoying the wonderful beaches in Afghanistan, Pakistan, and Yemen.
The governments of Yemen and Pakistan do not have control over large parts of their countries, and so they turn a blind eye to these strikes since it helps them as well. We did not declare war on Mexico when Pershing went after Pancho Villa either. That was perfectly legal as well.
The fact is that Al Qeada is waging war against the US, or have you forgotten 9/11? In fact, they inflicted more damage on the US territory than Hitler did in WWII. It even surpassed Pearl Harbor in terms of lives lost, and most all of them were innocent civilians, non-combatants.
Given the fact that this so called kid was in an active war zone associating with terrorists who are in active combat with the US, they have no leg to stand on. If you consort with Hitler, and the Nazis, you have no valid complaint if you are killed by USAF bombs.
Think that all US citizens who were in Germany have cause for legal action when they were injured or killed by US bombings during WWII? I doubt it. If fact, I would say that the US had every right to kill Ezra Pound during WWII and to do a targeted assassination as well. Think that would have been illegal or unConstitutional? I sure as hell do not.
Mike,
The money issue is part of the reason why I asked if anyone thought the Supremes would take up this case and would they slap down the Executive Branch.
Raff,
Thank you for exposing this and your title is definitely not hyperbole. I never thought I’d be saing this but Obama has gone, or allowed his administration to surpass Nixon’s executive over reach. Constitutionally I don’t think the Administration has a leg to stand on in this case. Politically and from the perspective of the real power behind the scenes the CMIC, I don’t think there is a prayer that the courts will call this administration to task. Bush/Cheney also went far beyond their Constitutional bounds and yet they live in happy retirement. Perhaps some may call me cynical, but it’s more that I’m fed up with the pretense that the “!War on Terror is anything more than a money making racket.