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?
bigfatmike,
I agree.
This looks like a checks and balance constitutional issue. Can anyone properly justify their actions based on the theory that they can, or should be authorized to, approve their own actions.
Well MIke, I don’t believe you are telling the truth about me and you feel I am not telling the truth about you. In this case, it is going to be my choice to stop engaging with you because I don’t see anything good coming from it.
“it is going to be my choice to stop engaging with you because I don’t see anything good coming from it.”
That works and is a wise choice.
watch out for that funny looking bird or fly.
Arthur,
Until the attorneys that you mentioned are convicted of a crime or a proven violation of an ethics rule, disbarment is not going to happen. That being said, the work product from Yoo especially was deficient, to say the least and Clapper has admitted to not telling the “whole” truth while testifying before Congress. However, in Yoo’s case the answers that Yoo provided in his memo was what the “client” wanted.
randyjet 1, August 5, 2013 at 10:20 am
Dredd, You forget that Congress still has authority to cut off funding, and can impeach the President if they feel he has exceeded his powers. Then you forget the FACT that there is this lawsuit too. Sure does NOT show that there is no accountability. So you are simply wrong. Now it may not be to YOUR liking, but the FACT is that there are those checks still there.
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I missed all those prosecutions for war crimes, torture, lying us into false wars, bankster plunder, government spying on all Americans, and the many other ongoing “events of accountability” too.
I miss a lot about the U.S.eh?
I agree that there should be prosecutions of folks like Clapper, and Yoo, among others, but as some have pointed out, the bar cannot even bring themselves to disbar these crooked lawyers. So it is not just the administration that is falling down on the job. The fact is that these avenues are still available, and it is up to the Congress to act. if they do not it is not the sole fault of Obama.
Congress should be impeached also.
Excellent raff,
Wasn’t judge Roy Bean the law west of the pecos………
randy,
The US was attacked by Saudi nationals on 9/11. As an airline pilot I don’t want you or anyone else to forget what happened. The US attacked Afghanistan and Iraq, two nations who did not attack us. Afghanistan offered to turn OBL over for trial. We should have handled this as a criminal matter, just as we have done in the past.
Instead USG declared war on the world, (except the one nation where the majority of the hijackers come from and were financed by). Please don’t forget the damage done to ours and other nations by using terrorism as a way to wage global warfare and destroy the rule of law.
Jill, you leave out most facts. First off the US requested that the Taliban hand over Bin Laden since he and Al Qeada were using Afghan territory for their operations. The US had warned them numerous times that they were harboring terrorists who had killed hundreds of US personnel and Africans. The Taliban refused the US request. The US then went to the UN which ordered then to turn over Bin Laden. Once again, they refused. The UN then passed a resolution authorizing all member states to take military action to bring about an end to Al Qeada. The international community was unanimous authorizing US military action against the Taliban. The leader of 9/11 was an Egyptian by the way, NOT a Saudi which is irrelevant in any case since the territory where they were at was Afghanistan.
The only people who have destroyed the rule of law are the terrorists since they are not restrained by that at all. It is like blaming the cops for shooting down armed bank robbers and saying that the robbers did not get a fair trial before they were killed. Give us all a break and use some common sense. That is why there are so few folks who agree with you and why you have so few adherents and no mass movement against the war.
For those who have never been in a real dictatorship or lived in the US during the McCarthy era, I have to say that the US is a FAR freer country NOW than those times. We do not have hundreds of political dissidents in prison as we did back then. People are not being denied jobs, and the ability to simply LIVE because of their politics. I have personally been attacked by the US government agencies, by various means such as wiretaps, break ins, tires slashed, and I managed to not get arrested for doing legal things, but my friends were and they experienced bombings, arson, shooting into homes. This was in Houston in 1972. You could be arrested and were for simply handing out anti-war leaflets or other legal activities. People were framed up and sent to prison, such as Lee Otis Johnson, and murdered as Jose Torres was by the HPD.
So to equate DC with Berlin under the Nazis is so far off the wall that is speaks more to the lack of sanity of those who make such charges. If that were the case, we would not be reading about it here since such people would be in prison. So please lets use some common sense, and not be chicken littles every time something happens you don’t like.
“For those who have never been in a real dictatorship or lived in the US during the McCarthy era”
Randyjet,
I lived through the McCarthy era and while things afterward got a little better for civil liberties, things now are surprisingly the same.
Sorry Mike but there are not people in prison now for their pollitical opinions as there were back then. Political prisoners are not being routinely murdered by the prison system and wardens as they were back then. The FBI is no longer harrassing people without cause, and they are not blacklisting people and getting them fired from their jobs. In fact, the pendulum has swung too far in the permissive direction as we can see by Maj. Hassan. in the past he would have been court martialed and kicked out of the Army before he killed 13 GIs.
I no longer have to prove my loyalty before I can get a passport, and I don’t have to sign a statement saying that I am not a member of certain proscribed organizations to get it. Some parents of a friend of mine had their passports revoked by the US while they were in Paris because of their politics. They became stateless persons without any court hearing or law. So to say that things are back to where they were is simply way off base. If you are black, you sure as hell cannot say that things are no better now. They can vote, freely demonstrate even in the old South, and they can enjoy the right to buy homes where they wish. They no longer have to be banned from most facilities. So I think that you will agree that we are far better off now.
““For those who have never been in a real dictatorship or lived in the US during the McCarthy era”
I think you are correct to distinguish a ‘real dictatorship’ such as Stalin’s gulag, the US with McCarthyism, and today.
But the fact that we appreciate that difference is precisely why we raise the alarm now.
However well intentioned, the fact is that legislation in the past decade has put in place the resources for a police state more detrimental to liberty and more firmly in control than any we have known before.
Why should we believe that any state with such powers will remain forever benign? Even now there are victims of heavy handed tactics: people who don’t know why they are on a no fly list or how to get off, entire communities spied upon without even a single suspect individual among them.
Even if you argue that the powers are necessary to deal with current problems, why should they be secret so that citizens cannot know of them? Why should those who are affected be prevented from conferring fully with their attorneys, or speaking openly of their cases?
Appeal to Occam’s razor suggest the simplest explanation is that secrecy is necessary because the techniques can’t be justified. If ordinary citizens knew what the government was doing they would demand changes.
Liberty is precious and fragile. Now is the time to speak out.
Mike,
Even if everything you believe is true (I disagree with you, but will take you at your word about your beliefs), you have yet to come to terms with actively silencing me and other people who told you the truth. Time after time you and others actively bullied and were abusive towards me. I should not have been attacked personally for having a viewpoint you don’t like-even for being a “purist” (according to you). Bullying land driving people away is a very different set of actions than disagreeing and believing someone is a purist and that you need to vote for the lesser of two evils.
What happened at “liberal” sites is actual suppression of left wing dissent. On Common Dreams I met other people whose posts had been removed because they also were speaking the truth. When a party of left wing movement attacks it critics with personal, bullying attacks, that is depriving the left wing of information it needs. The repercussions of silencing dissent on the left have been profound.
As to effective action. We are trying. Do you know how long it took black men and all women to get th vote? A very long time (still under fire). Now we are up against a deep state, heavily armed, with a population who, because the left that was trying to speak up, was silenced, has very little by way of knowledge to counter propaganda.
I think you should own what you did. If you would, and you would be able to reflect and write about why you needed to silence dissent, you would help others who did the same thing. It might help people from making the same mistake again. It would have real value, meaning and it might even help in resisting the present injustice.
“Time after time you and others actively bullied and were abusive towards me.”
Jill,
Bullshit now as it was then. You would call people names like “Obamabot” which demeaned their intelligence and questioned their political integrity. Then when people would respond to your attack you would play the victim. All of your posts were full of invective towards people, which you would not own up to and then you would claim to be “victimized and attacked” when people defended their positions. That’s what drove Patty C. crazy about you and unfortunately she was frustrated to the point of going overboard and was banned. It was one of your victim ploys that drove Former Federal Leo away from this blog because he felt protective towards “poor little Jill”. I write nothing now that differs from what I wrote then, only you in your “political purity” were then, and seemingly now, unable to accept that people could have legitimately different opinions from yours and still have integrity.
If you really want to change things in this country Jill, you need to first look inwardly and see why it is that you alienate people who you should be allied with.
Dredd, You forget that Congress still has authority to cut off funding, and can impeach the President if they feel he has exceeded his powers. Then you forget the FACT that there is this lawsuit too. Sure does NOT show that there is no accountability. So you are simply wrong. Now it may not be to YOUR liking, but the FACT is that there are those checks still there.
randyjet,
You and I agree on one thing: “If you are willing to kill hundreds of innocent people, you should NOT expect to be secure in your own home.”
That’s exactly where the US finds itself now.
I have been asking for Congress to defund the fake “war on terror” for years. So, I guess I am aware of that!
Jill maybe you can answer the question that all who oppose what Obama is doing have refused to answer. Just what did the US do to Afghanistan that justified the attack of 9/11? I guess that you forget that little item,but since I was an airline captain at the time, I find it impossible to forget or forgive.
I Do recall that Bush gave the Taliban millions of dollars just before the attack, and that US supported them against the Soviets and the legal government of that time. Now THAT was unConstitutional since the Afghan government had done nothing illegal or anything that warranted US support for Muslim fundamentalists. Yet ‘our” side won, and we had to get out ASAP when they marched into Kabul.
Please seat grand juries to discuss matters of war crimes.
Bob K If you were ever in the military, you would know that you are a legitiamate target 24/7, on duty and off, with or without arms in hand. You also forget US history since the people who wrote the Constitution were the first to take military action without declaring war. So any contention that we have shredded the Constitution simply ignores fact and history. Try reading about the Barbary WARS. Then you might look at Pershing and Mexico when the US invaded Mexico in pursuit of Pancho Villa. You also ignore the FACT that Congress has given consent to all of the so called illegal wars.
There is already a means in place to hold the President accountable in CONGRESS! They have the power to cut off funds, to even impeach him if they feel he has exceeded his authority. So all this concern about the President violating the Constitution is BS.
ARE,
Just one country: ” Chris Woods writes at the Bureau of Investigative Journalism:
A secret document obtained by the Bureau reveals for the first time the Pakistan government’s internal assessment of dozens of drone strikes, and shows scores of civilian casualties.
The United States has consistently claimed only a tiny number of non-combatants have been killed in drone attacks in Pakistan – despite research by the Bureau and others suggesting that over 400 civilians may have died in the nine-year campaign.
The internal document shows Pakistani officials too found that CIA drone strikes were killing a significant number of civilians – and have been aware of those deaths for many years.
Of 746 people listed as killed in the drone strikes outlined in the document, at least 147 of the dead are clearly stated to be civilian victims, 94 of those are said to be children.”
Damn! Those civilians and children shouldn’t be hanging around terrists!
I would hope people would value the rule of law more. Eviscerating due process leads to far more danger than any terrorist attack ever will. Please support our Constitution, it means everything.
Jill, I guess you would prefer that when the terrorists blow up and kill hundreds of innocent Pakistanis, the Pakistan Air Force should simply level an entire village where the terrorists have haven. That is the alternative and which is why they are willing to let the drone strikes continue. As I have pointed out before, it is easy to stop those strikes by the Pakistan government. All they have to do is ASK! Then if that doesn’t work, they can shoot down the drones with a C-210 and a rifle. Easy! If you are willing to kill hundreds of innocent people, you should NOT expect to be secure in your own home. I see that you have no concept of justice or the Constitution since you are completely unaware of the power of Congress to bring this to a halt.
Michael Murry,
Thank you for laying out what you did.
BTW, the govt. only recently floated the idea that killing the son of Anwar Al Aulaaqi, Abdulrahman, was an accident. Before that, an administration official blamed it on his father for bringing his son into dangerous circumstances. That too was impossible because Anwar Al-Aluaaqi was drone striked two weeks earlier. His son was with friends at the time of his murder. (The person who has a really good accounting of this is Jeremy Scahill.) When they first announced killing him, Obama was crowing about it. When it came out that they were crowing about killing a 16 year old boy, USGinc. claimed he was really 23 (that’s better) then they moved on to it being his father’s fault.
Because one more completely innocent young person has been killed among hundreds by this govt., yes, it is more serious than mass surveillance. But it is not different in justification. In both cases the govt./executive branch has put itself above both judicial and Congressional review.
Rafflaw and Mike, I wrote about this so many times before the election and it just seemed to have no effect on either you or other Obama supporters. It was so frustrating to me that killing a 16 year old boy seem to mean nothing to his supporters. I’m glad you are speaking up now, but by all that is holy, I wish you would have been against this a long time ago. This is what I meant by how far behind we are in confronting the illegalities of the govt. Left wing people simply would not face up to what is happening under Obama.
I do feel angry about that. I and others like me, needed your strong voice. Instead we were attacked, ostracized, ridiculed and told to shut up/get out. We are all paying for Obama’s supporters attack of people who spoke the truth. We are all paying for those who could not speak up when we needed to speak as one voice against the destruction of our nation.
“Rafflaw and Mike, I wrote about this so many times before the election and it just seemed to have no effect on either you or other Obama supporters. It was so frustrating to me that killing a 16 year old boy seem to mean nothing to his supporters. I’m glad you are speaking up now, but by all that is holy, I wish you would have been against this a long time ago.”
Jill,
When you returned, I have been waiting for you to bring this up and knew you couldn’t resist it. As I made very clear then, my support for Obama wasn’t because I thought the man would be significantly different from the President he has been. It was because I knew he was the lesser of two evils. As I said at the time, barring any movement that would have a chance unseat the Corporatocracy I would vote for the lesser of the two evils based on the fact that the harshness of the treatment of the people of this country would be less harsh under his administration. I also stated that the drift towards a feudal system would move less quickly under the Democrats, than under the Republicans. Yes both parties are Corporate/Feudalists, but there is a difference of degree in how they impose this upon us. Either one is vile, but one is less vile than the other. In my history here I’ve never varied in that judgment and I have consistently railed against the usurpation of our constitutional system. Raff can defend himself, but from his writing he generally feels the same way.
As for foreign affairs can you really pretend that either McCain or Romney would have had a less belligerent attitude? McCain was and is ready to go to war with Iran. Romney’s foreign policy agenda was written by the same men who wrote PNAC. Had Obama lost the murders would still have continued, probably at a greater level. Social Security would have been privatized, Medicare abandoned and the social safety net far worse. He has been a lousy President, but the others would have been worse. I remember how Jimmy Carter was abandoned by many in his base and we got Ronnie Reagan who appreciably advanced the corporate state and destroyed trade unionism to boot.
I don’t notice any movements that have coalesced to bring down the coporatocracy save for OWS, which I supported in word and in deed. The problem you have always had, Jill is one that I’ve noticed in many people who do understand the dangers we face in the era of the corporate State and the CMIC, you have no idea of how to build coalitions and you alienate natural allies. You see the world through the eyes of a purist and any straying from your perceived “party line” is considered just as “evil” as the “evil” you oppose.
As for my perceptions of the corruptness of this political system you forget that I lived through this in the 60’s and was part of The Movement. My politics and views haven’t changed much since then, though I’ve become far more politically sophisticated.
I’ve even written a guest blog about your type of political thinking:
http://jonathanturley.org/2012/06/02/the-pursuit-of-political-purity/
Arthur Randolph Erb 1, August 5, 2013 at 12:41 am
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.
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As the judge pointed out, it is the executive that decides what is a war zone.
Should that be unbalanced by the other branches of government?
It is the executive that describes and decides what a terrorist is, what active combate is, and what to do about it.
In other words, you have not addressed the issue of accountability, a major pillar of democracy and our constitution.
“The king can do no wrong …” (An ancient meme toxin without a vaccine – yet).